Law of the Sea in East Asia: Issues and prospects

Law of the Sea in East Asia Law of the Sea in East Asia selects the most prominent maritime legal issues that have emerged since the post-LOS Convention era, for a detailed discussion and assessment. The current marine legal order in East Asia is based on the 1982 United Nations Convention on the Law of the Sea (LOS Convention) and accordingly coastal states in the region are obliged to cooperate amongst themselves to exercise their rights and perform their duties. The five sections of this book explore issues concerning compliance with the law of the sea, territorial disputes and maritime boundary delimitation, fishery management, safety of navigation and maritime security, and neglected issues in the law of the sea. Crossing over the subjects of international law, and in particular the law of the sea in East Asia, this book will be of huge interest to academics, professionals, and policymakers alike. Zou Keyuan is Senior Research Fellow at the East Asian Institute, National University of Singapore. He specializes in international and Chinese law and is on the editorial boards of the International Journal of Marine and Coastal Law, Ocean Development and International Law and Journal of International Wildlife Law & Policy, and is DeputyEditor-in-Chief of the Chinese Journal of International Law.

Routledge studies in international law 1 International Law in the Post-Cold War World Essays in memory of Li Haopei Edited by Sienho Yee and Wang Tieya 2 The Break-Up of Yugoslavia and International Law Peter Radan 3 International Human Rights, Decolonisation, Globalisation Becoming human Shelley Wright 4 Global Governance, Economy and Law Waiting for justice Errol Mendes and Ozay Mehmet 5 Law of the Sea in East Asia Issues and prospects Zou Keyuan

Law of the Sea in East Asia Issues and prospects

Zou Keyuan

LONDON AND NEW YORK

First published 2005 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Simultaneously published in the USA and Canada by Routledge 270 Madison Ave, New York, NY 10016 Routledge is an imprint of the Taylor & Francis Group This edition published in the Taylor & Francis e-Library, 2005. To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk. © 2005 Zou Keyuan All rights reserved. No part of this book may be reprinted or reproduced or utilized in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging in Publication Data A catalog record for this book has been requested ISBN 0-203-02319-6 Master e-book ISBN

ISBN 0-415-35074-3 (Print Edition)

For Meihua, Mengjie, and Marlene

Contents

List of tables Preface Acknowledgments List of abbreviations Introduction

ix xi xiii xiv 1

PART I Compliance with the law of the sea 1 Maintaining the marine legal order in East Asia 2 Basic marine laws of mainland China and Taiwan: comparisons and regional implications

13 29

PART II Territorial disputes and maritime boundary delimitation 3 The Chinese traditional maritime boundary line in the South China Sea and its legal consequences 4 Dispute over the Scarborough Reef 5 Maritime boundary delimitation in the Gulf of Tonkin

43 55 63

PART III Fishery management 6 Sino-Japanese joint fishery management in the East China Sea 7 Sino-Vietnamese Fishery Agreement in the Gulf of Tonkin

78 96

PART IV Safety of navigation and maritime security 8 Redefining the legal status of the Taiwan Strait 108 9 Crackdown on piracy in the South China Sea and prospects for regional 122 cooperation PART V Neglected issues in the law of the sea 10 Maritime historic rights and China’s practice

137

Appendix I Fishery Agreement between the People’s Republic of China and Japan 153 :

Appendix II Agreement on Fishery Cooperation in the Beibu Gulf between the : Government of the People’s Republic of China and the Government of the Socialist Republic of Vietnam Notes Bibliography Index

159

168 214 219

Tables

I.1 I.2 I.3 3.1

Contracting parties to the LOS Convention in East Asia and their maritime claims 3 4 Selected marine laws of the People’s Republic of China 5 Bilateral maritime agreements in East Asia Foreign legislation and proclamations affecting the Chinese traditional maritime line in the South China Sea 49

Preface This book is part of the results deriving from a five-year research project on the law of the sea in China and East Asia, begun in 1998. Although most of the contents of the book were previously published in various international journals, there is no doubt merit and value in bringing them together into a single text with necessary changes and updates so that the reader can get a full picture of how the law of the sea has been practised in East Asia. My interest in the law of the sea was initially cherished when I was enrolled in a graduate program of international law in the Law Department (its name was changed to Law School in 1999) of Peking University in 1984. This school is the leading law school in China and the law of the sea was at that time one of the strongest teaching and research subjects there. Renowned professors of law like Wang Tieya, Zhao Lihai, Shao Jin and Wei Min all had conducted meticulous studies on the law of the sea. Zhao Lihai, my PhD supervisor in Peking University, was later (in 1996) elected as the first judge of Chinese nationality at the International Tribunal for the Law of the Sea established under the 1982 United Nations Convention on the Law of the Sea. It is not strange that the law of the sea was then a most popular subject in Peking University because it had become the most fashionable subject in international law in the 1980s. I still remember that prominent foreign law professors were invited to give lectures in order to get law students in Peking University more interested in the law of the sea studies. The most impressive and comprehensive lectures (altogether ten within two months in 1986) were given by William T. Burke, a law professor from the University of Washington and an internationally recognized law of the sea authority. I have to confess that I did learn a lot from his lectures, which partially led me to the law-of-the-sea professional circle. Nevertheless, the present book is a result of the project which has been conducted since I joined the East Asian Institute of the National University of Singapore in 1998. Thanks to its special geographical location and cultural background, Singapore is the best place, at least for me, to conduct legal studies relating to China and East Asia. Here I can feel quite comfortable and satisfied with the availability and adequacy of the research materials both in Chinese and in English, which I had never experienced before either in China or in Western countries. The internal library of the institute as well as the law library of the university can easily demonstrate their sufficiency. For this reason, I have to express my gratitude to the East Asian Institute, particularly its director Wang Gungwu and research director John Wong. I do not think that I could be able to contribute this book to the law of the sea literature without my research stay in this institute. While grateful for their academic leadership and support, I am also grateful to the director and research director of the institute for their generosity and tolerance since law, particularly law of the sea, is generally regarded within the institute as a marginal subject in the overall China studies.

During the last two decades of the law of the sea studies, I benefited one way or the other from many law-of-the-sea specialists and colleagues. Apart from the names I mentioned above, I would like to thank, among others, Douglas M.Johnston, Ted L.McDorman, Hans Buchholz, Rainer Lagoni, David H.Anderson, David Freestone, Moira L.McConnell, David VanderZwaag, Barbara Kwiatkowska, Yann-huei Song, Kening Zhang, Martin Tsamenyi, Richard Herr, and Donald R.Rothwell, for their kind academic encouragement and support. I also render my sincere thanks to the editor of this book, Stephanie Rogers and the assistant editor Laura Sacha of the publisher. Their kind cooperation has made the preparation process of this book very smooth and efficient. In addition, I appreciate the kind and firm support from the two anonymous reviewers of the manuscript, which is critical for bringing this book into being. Finally, I cannot help expressing my gratitude to my family—my wife and two daughters—who have endured, and sometimes even suffered from, a migrant and unstable life with me for many years. They share my worries and hardships but for most of the time they could not share with me the family happiness because of my intensive work. I often feel guilty that I could not be able to spend more time with my family and devote more time to my kids. Without their constant support, it would not have been possible to complete this book. As compensation, though a tiny token, for my family absence and negligence, this book is dedicated to them.

Acknowledgments I gratefully acknowledge the kind permission granted by the following publishers to reproduce published articles written by myself. Portions of Chapter 1 were adapted from Zou Keyuan, “Disrupting or Maintaining the Marine Legal Order in East Asia?” Chinese Journal of International Law, Vol. 1 (2), 2002:449–497, with permission from the Chinese Journal of International Law Inc. Portions of Chapter 3 were adapted from Zou Keyuan, “The Chinese Traditional Maritime Boundary Line in the South China Sea and Its Legal Consequences for the Resolution of the Dispute over the Spratly Islands”, International Journal of Marine and Coastal Law, Vol. 14 (1), 1999:27–55, with permission from Martinus Nijhoff. Portions of Chapter 4 were adapted from Zou Keyuan, “The Scarborough Reef: A New Flashpoint in Sino-Philippine Relations?” IBRU Boundary and Security Bulletin, Vol. 7 (2), 1999:71–81, with permission from IBRU, University of Durham. Portions of Chapter 5 were adapted from Zou Keyuan, “Maritime Boundary Delimitation in the Gulf of Tonkin”, Ocean Development and International Law, Vol. 30 (3), 1999:235–254. Copyright 1999 from Ocean Development and International Law by Zou Keyuan. Reproduced by permission of Taylor & Francis, Inc., http.//www.routledgeny.com Portions of Chapter 6 were adapted from Marine Policy, Vol. 27 (2), Zou Keyuan, “Sino-Japanese Joint Fishery Management in the East China Sea”, pp. 125–142, Copyright 2003, with permission from Elsevier. Portions of Chapter 7 were adapted from Zou Keyuan, “Sino-Vietnamese Fishery Agreement for the Gulf of Tonkin”, International Journal of Marine and Coastal Law, Vol. 17 (1), 2002:127–148, with permission from Martinus Nijhoff. Portions of Chapter 8 were adapted from Zou Keyuan, “Redefining the Legal Status of the Taiwan Strait”, International Journal of Marine and Coastal Law, Vol. 15 (2), 2000:245–268, with permission from Martinus Nijhoff. Portions of Chapter 9 were adapted from Zou Keyuan, “Issues of Public International Law Relating to the Crackdown of Piracy in the South China Sea and Prospects for Regional Cooperation”, Singapore Journal of International and Comparative Law, Vol. 3 (2), 1999:524–544, with permission from the Law School of the National University of Singapore. This publication is now known as the Singapore Year Book of International Law. Portions of Chapter 10 were adapted from Zou Keyuan, “Historic Rights in International Law and in China’s Practice”, Ocean Development and International Law, Vol. 32 (2), 2001:149–168. Copyright 2001 from Ocean Development and International Law by Zou Keyuan. Reproduced by permission of Taylor & Francis, Inc., http.//www.routledge-ny.com

Abbreviations AJIL

American Journal of International Law

ASEAN

Association of Southeast Asian Nations

BOIESA

Bureau of Oceans and International Environmental and Scientific Affairs, United States Department of State

DOALOS

Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, United Nations

EEZ

exclusive economic zone

EJIL

European Journal of International Law

FAO

Food and Agriculture Organization

ICC

International Criminal Court

ICJ

International Court of Justice

ICLQ

International and Comparative Law Quarterly

IJMCL

International Journal of Marine and Coastal Law

ILC

International Law Commission

ILM

International Legal Materials

IMB-PRC

Piracy Reporting Centre of the International Maritime Bureau of the International Chamber of Commerce

IMO

International Maritime Organization

Inmarsat

International Maritime Mobile Satellite Organization

ITLOS

International Tribunal for the Law of the Sea

IWC

International Whaling Commission

JAIL

Japanese Annual of International Law

LNTS

League of Nations Treaty Series

LOS

law of the sea

NLL

Northern Limit Line

nm

nautical miles

ODIL

Ocean Development and International Law

PMZ

Provisional Measures Zone

PRC

People’s Republic of China

ROC

Republic of China

ton

metric ton

UN

United Nations

UNCED

United Nations Conference on Environment and Development

UNCLOS

United Nations Conference on the Law of the Sea

UNCTAD

United Nations Conference on Trade and Development

UNEP

United Nations Environment Program

UNTS

United Nations Treaty Series

Introduction The current marine legal order in the world has been established by and maintained under the current law of the sea codified in the 1982 United Nations Convention on the Law of the Sea (LOS Convention),1 which is commonly regarded as the constitution of oceans and a comprehensive compilation of almost all previously existing conventional and customary rules and norms concerning the oceans as well as human activities therein. The Convention consists of 320 articles and nine annexes, covering territorial sea and contiguous zone, straits used for international navigation, archipelagic states, exclusive economic zone (EEZ), continental shelf, high seas, islands, enclosed or semi-enclosed seas, right of access of land-locked states to and from the sea and freedom of transit, the international seabed area, protection and preservation of the marine environment, marine scientific research, development and transfer of marine technology, and settlement of disputes. Pursuant to the LOS Convention, a coastal state has the right to establish maritime zones under its jurisdiction: internal waters inside the baselines which are used to measure the extent of the territorial sea and other jurisdictional waters, the territorial sea of 12 nautical miles (nm), the EEZ of 200 nm, and the continental shelf of 200 nm (or up to 350 nm in some cases), outward from the baselines. Different maritime zones have different legal status. Internal waters and territorial sea are treated as part of the coastal state’s territory and that state enjoys full sovereignty there except for innocent passage for foreign vessels in its territorial sea. The sovereignty of the coastal state over the territorial sea extends to the airspace above the territorial sea as well as to its bed and subsoil.2 For some jurisdictional purposes, such as prevention and punishment of infringement of its customs, fiscal, immigration or sanitary laws and regulations, a coastal state has the right to establish the contiguous zone which may extend to 24 nm from the baselines from which the breadth of the territorial sea is measured. However, it should be noted that in comparison with the territorial sea or the EEZ, the contiguous zone is not a complete maritime zone; rather it is subsidiary to the territorial sea for the coastal state to control certain matters of territorial nature while it is part of the EEZ in other senses such as the use of natural resources. As to the EEZ and continental shelf, the coastal state, according to the LOS Convention, only enjoys sovereign rights and certain kinds of jurisdiction. The coastal state enjoys sovereign rights to the living and nonliving resources in the EEZ and continental shelf, and exercises its jurisdiction over the matters relating to “the establishment and use of artificial islands, installations and structures”, “marine scientific research”, and “the protection and preservation of the marine environment”.3 The coastal state has the exclusive right to authorize and regulate drilling on the continental shelf.4 The EEZ and the continental shelf are identical in terms of sovereign rights and jurisdiction of a coastal state. For that reason, the EEZ and the continental shelf are not part of the high seas, or part of the territorial sea. The EEZ is a maritime zone sui generis.

Law of the sea in East Asia

2

However, there is at least one similarity between the territorial sea and the EEZ in the sense that they both are maritime zones within national jurisdiction. Geographically, East Asia in this book includes both Northeast Asia and Southeast Asia. Within this region, there are three main seas: the Sea of Japan, the East China Sea and the South China Sea, part of the western Pacific. Under the LOS Convention, they are categorized as “semi-enclosed seas” in the sense that they are surrounded by two or more states and connected to another sea or the ocean by a narrow outlet.5 Before the emergence of the new marine legal order, the maritime situation in East Asia was rather anarchic except for some fishery agreements between relevant countries such as the SinoJapanese Fishery Agreements concluded in the 1950s and 1960s for the management of fishery operations in the East China Sea and the Yellow Sea (see Chapter 6). The previous maritime order, if it existed, was maintained basically by power rather than by law. For instance, during the Taiwan crisis in the 1950s, the United States sent its Seventh Fleet to the Taiwan Strait to “neutralize” it so as to protect Taiwan from possible attack by Mainland China (see Chapter 8). The LOS Convention has provided a legal framework for the establishment of the marine legal order in East Asia. All 14 East Asian countries except Cambodia, North Korea and Thailand have acceded to the LOS Convention (see Table 1.1). In order to implement the LOS Convention, countries have adopted relevant domestic laws and regulations for the management of their own maritime zones and maritime activities within their jurisdiction. China, Japan and South Korea all enacted their laws on the territorial seas and on the EEZs and continental shelves (see Table 1.2 for the relevant Chinese legislation).

Table I.1 Contracting parties to the LOS Convention in East Asia and their maritime claims

States

Date of ratification (d/m/y)

Territorial Contiguous sea zone

Brunei Cambodia China Japan S.Korea N.Korea Laos Malaysia Mongolia Myanmar Philippines Russia Singapore

05/11/1996

12 12 24 12 24 3/12 24 3/12 24 12

200 200 200 200 200 200

12

200

200m/Exp(58)

12 24

200 200 200

200/CM Exp 200/CM(58)

07/06/1996 20/06/1996 29/01/1996 05/06/1998 14/10/1996 13/08/1996 21/05/1996 08/05/1985 12/03/1997 17/11/1994

12 3

EEZ Continental shelf

200(58) 200/CM 200/CM

Introduction Thailand Vietnam (Taiwan)

25/07/1994

3

12 24 12 24 12 24

200 200 200

200m/EXP(58) 200/CM 200/CM(58)

Source: United Nations Office for Ocean Affairs and the Law of the Sea, “Status of the Convention and of Related Agreements, as at 8 January 2002”, in http://www.un.org/Depts/los/convention_agreements/convention_agreements.htm (access date: 15 January 2002). Notes The date here is the date when the depository the United Nations received the instrument of ratification. Taiwan is not a member of the United Nations and not qualified to be a signatory of the LOS Convention. (58): Contracting Party to the 1958 Convention on Continental Shelf. CM: continental margin; Exp: exploitability; 200:200 nm; 200m: 200 meters. The Philippine territorial sea is rectangular in accordance with the so-called “Treaty Limits”. The 3-mile limit, for South Korea, applies to the Korean Strait area, and for Japan, applies to the Soya Strait, the Tsugaru Strait, the eastern and western channels of the Tsushima Strait and the Osumi Straits only.

The extension of jurisdictional maritime zones of coastal states may cause conflicts and disputes between and among neighboring countries that share the same sea so that bilateral arrangements are needed to facilitate the maintenance of the marine legal order. These arrangements are concerned with various maritime matters such as management of fisheries, maritime boundary delimitation, joint development of marine resources, marine environmental protection, and maritime safety. So far there exist some such bilateral agreements in East Asia (see Table 1.3). Ironically, some bilateral agreements are a source of disruption when they involve and/or encroach on rights and interests of a third state. The typical example is the Agreement concerning Joint Development of the Southern Part of the Continental Shelf Adjacent to the Two Countries between Japan and South Korea signed in January 1974.6 China made a strong protest by stating that the agreement has violated its sovereignty and sovereign rights in the East China Sea.7

Table I.2 Selected marine laws of the People’s Republic of China

Law

Time of promulgation (d/m/y)

Declaration on the Territorial Sea Regulations Governing Non-Military Foreign Vessels Passing Through the Qiongzhou Strait Regulations on Sea-Port Pilotage Regulations Governing Supervision and Control of

04/09/1958 08/06/1964 12/11/1976 22/08/1979

Law of the sea in East Asia Foreign Vessels Regulations on the Exploitation of Offshore Petroleum Resources in Cooperation with Foreign Enterprises Law on Marine Environmental Protection

Maritime Traffic Safety Law Regulations Concerning Environmental Protection in Offshore Oil Exploration and Exploitation Regulations Concerning the Prevention of Pollution of Sea Areas by Vessels Regulations Concerning the Dumping of Wastes at Sea Fisheries Law

4

30/01/1982 (amended 23/09/2001) 23/08/1982 (amended 25/12/1999) 02/09/1983 29/12/1983 29/12/1983

06/03/1985 30/01/1986 (amended 31/10/2000) Mineral Resources Law 19/03/1986 (amended 29/08/1996) Regulations Concerning the Prevention of Environmental 18/05/1988 Pollution by Ship-Breaking Regulations on the Management of Laying Submarine 11/02/1989 Cables and Pipelines Regulations on the Protection of Underwater Cultural 20/10/1989 Relics Regulations Governing the Investigation and Settlement 11/01/1990 of Marine Traffic Accidents Regulations Concerning the Prevention of Pollution 25/05/1990 Damage to the Marine Environment by Coastal Construction Projects Regulations Concerning the Prevention of Pollution 25/05/1990 Damage to the Marine Environment by Land-Based Pollutants Law on the Territorial Sea and the Contiguous Zone 25/02/1992 Measures on the Management of Foreign Merchant’s 12/07/1992 Participation in the Salvage of Sunken Vessels and Sunken Objects in China’s Coastal Waters Regulations on the Management of Marine Navigational 22/12/1992 Warnings and Navigational Notices Regulations on Inspection of Ships and Offshore 14/02/1993 Installations Regulations on the Protection of Aquatic Wildlife 17/09/1993 Regulations Concerning Navigation Marks 03/12/1995

Introduction

5

Measures on the Management of Marine Nature Reserves 11/05/1995 Decision on Ratification of the United 15/05/1996 NationsConvention on the Law of the Sea Regulations on the Management of Foreign-Related 18/06/1996 Marine Scientific Research Law on the Exclusive Economic Zone and the 29/06/1998 Continental Shelf Law on the Management of the Use of Maritime Areas 27/10/2001 Source: compiled by the author.

Table I.3 Bilateral maritime agreements in East Asia Agreement between the Government of Malaysia and the Government of Indonesia on the delimitation of the continental shelves between the two countries, 27 October 1969 Treaty between the Republic of Indonesia and Malaysia Relating to the delimitation of the Territorial Seas of the Two Countries in the Strait of Malacca, 17 March 1970 Agreement between the Government of the Kingdom of Thailand and the Government of the Republic of Indonesia relating to the delimitation of a continental shelf boundary between the two countries in the northern part of the Straits of Malacca and in the Andaman Sea, 17 December 1971 Agreement between the Government of the Republic of Indonesia, the Government of Malaysia and the Government of the Kingdom of Thailand Relating to the Delimitation of the Continental Shelf Boundaries in the Northern Part of the Strait of Malacca, 21 December 1971 Agreement Stipulating the Territorial Sea Boundary Lines between Indonesia and the Republic of Singapore in the Strait of Singapore, 25 May 1973 Agreement concerning the Establishment of Boundary in the Northern Part of the Continental Shelf Adjacent, 30 January 1974 Agreement between the Republic of Korea and Japan concerning Joint Development of the Southern Part of Continental Shelf Adjacent to the Two Countries, 30 January 1974 Agreement between the Government of the Kingdom of Thailand and the Government of the Republic of Indonesia relating to the delimitation of the sea-bed boundary between the two countries in the Andaman Sea, 11 December 1975 Treaty between the Kingdom of Thailand and Malaysia relating to the delimitation of the territorial seas of the two countries, 24 October 1979 Memorandum of Understanding between the Kingdom of Thailand and Malaysia on the delimitation of the continental shelf boundary between the two countries in the Gulf of Thailand, 24 October 1979 Agreement between the Government of the Kingdom of Thailand and the

Law of the sea in East Asia

6

Government of the Socialist Republic of the Union of Burma on the delimitation of the maritime boundary between the two countries in the Andaman Sea, 25 July 1980 Agreement between the Union of the Soviet Socialist Republics and the Democratic People’s Republic of Korea on the Delimitation of the SovietKorean National Border, 17 April 1985 Agreement between the Union of Soviet Socialist Republics and the Democratic People’s Republic of Korea on the Delimitation of the Economic Zone and the Continental Shelf, 22 January 1986 Agreement on Fishery Cooperation between the People’s Republic of China and the Union of the Soviet Socialist Republics, 4 October 1988 Agreement between the Government of the Union of Soviet Socialist Republics and the Government of the Democratic People’s Republic of Korea concerning the Regime of the Soviet-Korean State Frontier, 3 September 1990 Agreement on Fisheries between the People’s Republic of China and Japan, 11 November 1997 Agreement on Fisheries between the Republic of Korea and Japan, 28 November 1998 Agreement on Fisheries between the People’s Republic of China and the Republic of Korea, 3 August 2000 Agreement on Fishery Cooperation in the Gulf of Tonkin between the People’s Republic of China and the Socialist Republic of Vietnam, 25 December 2000 Agreement on Maritime Boundary Delimitation in the Gulf of Tonkin between the People’s Republic of China and the Socialist Republic of Vietnam, 25 December 2000 Source: compiled by the author.

It is hoped that after the entry into force of the LOS Convention and the promulgation of related marine laws by the coastal States in East Asia, the establishment of the marine legal order in this region should ameliorate the unclear maritime situation in the past. Unfortunately, the newly established legal order has been disrupted often by countries within or outside this region, thus in turn damaging the confidence in rule of law and inviting unfavorable elements to erode the regional maritime peace and security. The South China Sea naturally comes to people’s mind since it has been a flashpoint relating to maritime security and marine legal order for several decades in East Asia (see Chapter 3). The islands in the South China Sea, particularly the Spratlys, are claimed by five countries, i.e. China (including Taiwan), Brunei, Malaysia, the Philippines, and Vietnam. There were two armed skirmishes which happened in the South China Sea in 1973 and 1988 between China and Vietnam over the disputes of the South China Sea islands. The 1995 tension between China and the Philippines over the Mischief Reef also invited a high profile exposure in the mass media. Recently some countries occupied new reefs in a “sneaky” or “stealthy” way. For example, during 1999 and 2000 Malaysia grabbed three new reefs in the South China Sea it had claimed without any report in major newspapers around the world. Arrests of fishing boats and fishermen are frequent.

Introduction

7

The claimed states blame one another for incursions in the disputed areas.8 In June 2002, Vietnam lodged a protest against China’s live ammunition exercises in the South China Sea, but China dismissed Vietnam’s protest and stated that the drill fully complied with international law.9 In April 2004, Vietnam launched its tourist program to its occupied islands for the purpose of consolidating its territorial claims over there.10 The signing of the Declaration on the Conduct of the Parties in the South China Sea in December 2002 seems unable to stop such disruptive activities. Apart from disputes over islands in the East Asian seas, lack of clear maritime boundary demarcation is another major obstacle to the smooth maintenance of the marine legal order. The recent incident in the Yellow Sea between North and South Korea resulted directly from the unclear and controversial demarcation of their maritime boundary. In June 1999 and June 2002, North and South Korea had armed skirmishes in the disputed sea areas around the so-called Northern Limit Line (NLL) which was unilaterally drawn by the United Nations Command after the conclusion of the Armistice Agreement concerning the Korea War in 1953, but its validity was rejected by North Korea.11 The 2002 naval clash resulted in deaths and sinking of ships on both sides.12 In response to the unilateral NLL, the North Korean military authorities declared after the 1999 incident (on 2 September 1999) that they had set up a “North Korean Military Demarcation Line in the West Sea (Yellow Sea)” which overlaps with the existing NLL. The different lines existing in the same area definitely have caused, and will continue to cause, maritime conflicts unless a clear boundary line is negotiated between the two sides. So far there are only a few agreements on maritime boundaries in East Asia. The latest one is the Sino-Vietnamese Agreement on the Maritime Boundary Delimitation in the Gulf of Tonkin (see Chapter 5).13 Although relevant negotiations are now underway, such as between China and Japan, China and South Korea, and Japan and South Korea, it is not easy for them to reach agreements in the near future. The maritime situation has become more complicated after the states bordering on the East Asian seas acceded to the LOS Convention. Some countries made their claims to islands and/or maritime zones in the South China Sea by using provisions of the LOS Convention on the 200 nm EEZ regime to argue that since these islets and/or reefs are located within their claimed EEZs, these features should belong to them. The typical example is the Malaysian claim. The followers are Brunei and the Philippines (particularly for the claim over the Scarborough Reef) (see Chapter 4). According to the principle of “land dominating the sea”, maritime jurisdiction derives from the sovereignty over land territory, not the other way round. That is to say, only with the ownership of a piece of land, a State may have the right to extend its jurisdictional waters including EEZ outwards from that land. To claim a piece of land (no matter how small it is) from the sea is simply a misuse or abuse of the LOS Convention which no doubt disrupts the marine legal order in East Asia. Lack of political confidence and trust among the East Asian countries is a further negative factor in maintaining the marine legal order. Two nations, China and Korea, are still divided internally. The divided authorities distrust and are hostile towards each other to differing degrees. That is why the Korean Peninsula and the Taiwan Strait are the other two flashpoints, in addition to the South China Sea, in East Asia. The Cold War is over in Europe and other places in the world but still exists in East Asia in the sense that there is

Law of the sea in East Asia

8

no reconciliation between the contesting parties concerned after the Cold War. In contrast, they have been strengthening their military buildup. East Asia remains the second-largest regional arms market after the Middle East and North Africa.14 China continues to strengthen its naval and air capabilities to prevent Taiwan from de jure independence, while Taiwan has bought and continues to buy advanced weapons from the United States to deter Mainland China’s threat. If there were an armed conflict in the Taiwan Strait, the marine legal order in East Asia could not be maintained. On the other hand, Japan, which possesses the most advanced fleet in the region, has taken a more active approach in its defense affairs and begun to send troops overseas under its recently passed domestic laws. Its military presence in the South China Sea in the name of antipiracy/maritime terrorism patrols worries the neighboring countries, reminding them of Japan’s atrocities and invasions during World War II. Different treatment and subsequent results of marine incidents in the EEZs may also cause confusion. Comparing the unidentified ship incident with the spy airplane incident (see Chapter 1), both crafts exercised the freedom of navigation/overflight and conducted controversial espionage in the EEZs; the mysterious ship, suspected of belonging to North Korea, was sunk under fire with all lives lost, while the spy airplane and its crew were safely returned to the United States without appeasing the United States one hundred percent. The main factor is that North Korea is an isolated country and labeled by the United States as an “axis of evil”. These circumstances seem to somehow produce the impression that to some a North Korean ship deserved such punishment. It shows that political considerations prevailed over the legal norms under the above circumstances. Even an American scholar was concerned about Japan’s excessive action because it would diminish the freedom of high seas and bring harm to the mobility of maritime powers like the United States in the high seas and EEZs.15 More strange is the official position of the United Sates, which openly supported Japan’s action,16 disregarding its constant assertion of conducting military activities (including espionage) in the EEZs of other countries. The East Asian seas need a legal order based on the universally accepted principle of rule of law. Although there are various definitions of rule of law, one thing is clear: the rule of law principle at the international level requires states to use law rather than power, will of individuals, or even force to govern state-to-state relations. As Moore mentioned, there are two things which may diffuse security paradigms or flashpoints: (1) to seek to resolve, end, or diminish the underlying dispute by a variety of confidence-building measures or by a strategy to shelve the dispute until a more propitious time for its resolution; or (2) to raise the costs of inappropriate efforts to resolve the dispute by participants pursuing aggressive use of force.17 The second way is clearly contrary to the rule of law and will not get support from international law. The current prevailing unilateralism in world politics may endanger the spirit and letters of rule of law. The United States has been criticized of disrupting international rule of law by withdrawing itself unilaterally from several important international conventions. All this indicates that the United States tends to adopt the rule of power instead of rule of law in dealing with international affairs, disregarding the existence of international legal norms.18 If this policy continues, it will definitely disrupt the marine legal order in East Asia. It is of paramount importance that countries, particularly those

Introduction

9

big countries in the region, behave responsibly. The East Asian seas need a vibrant regional cooperation and the establishment of a regional mechanism for improving the marine legal order. According to the LOS Convention, coastal states in the region are obliged to cooperate between/among themselves in the exercise of their rights and in performance of their duties. To this end they should endeavor, directly or through an appropriate regional organization: 1 to coordinate the management, conservation, exploration, and exploitation of the living resources of the sea; 2 to coordinate the implementation of their rights and duties with respect to the protection and preservation of the marine environment; 3 to coordinate their scientific research policies and undertake where appropriate joint programs of scientific research in the area; 4 to invite, as appropriate, other interested States or international organizations to cooperate with them in furtherance of the provisions of this article.19 While it is admitted that there is some degree of cooperation between/among the coastal states concerned, more cooperation is much to be desired. The most active area for regional cooperation is the protection of the marine environment through two regional programs comprising the East Asian Seas Program sponsored by the International Maritime Organization (IMO), the Global Environment Facility, and the UN Environment Program (UNEP) and implemented in 1994 with the participation of 11 countries (Brunei, Cambodia, China, Indonesia, Malaysia, North Korea, the Philippines, Singapore, South Korea, Thailand, and Vietnam); and the Regional Seas Program sponsored by the UNEP for the Northwest Pacific (involving China, Japan, North Korea, Russia, and South Korea). Even these regional programs have not been well developed in comparison with other regional programs in the rest of the world. For example, the Northwest Pacific Program has so far only produced its Action Plan.20 It is hoped that with the ever-developing integration of the regional economy, the regional maritime cooperation will be further enhanced. As briefly discussed above, there are numerous law-of-the-sea issues in East Asia. This book is only able to select some of the most prominent ones for further discussion and detailed assessment. It contains five parts respectively concerning compliance with the law of the sea, territorial disputes and maritime boundary delimitation, fishery management, safety of navigation and maritime security, and neglected issues in the law of the sea. It is noted that while some new legal issues raised in Chapter 1 are within the LOS Convention framework, the so-called neglected issue on maritime historic rights, which is discussed in Chapter 10, is beyond the governance of the LOS Convention but within the general law-of-the-sea domain. Through the discussion and assessment of the above issues, it is the purpose of the book to let the reader know what maritime issues exist in East Asia and how they can be resolved; more importantly, how the East Asian countries implement the LOS Convention and other international law norms so as to maintain and promote regional maritime peace and security.

Part I Compliance with the law of the sea

1 Maintaining the marine legal order in East Asia As discussed in the Introduction, the current marine legal order in the world has been established by and maintained under the United Nations Convention on the Law of the Sea (LOS Convention). This chapter further discusses the importance of maintaining the marine legal order in East Asia by looking into two recent maritime incidents and their legal implications in the law of the sea as well as in general international law. American spy airplane over China’s EEZ On 1 April 2001, while a US EP-3E Aries II airplane was conducting espionage activities near the Chinese coast in the South China Sea, it was intercepted by two Chinese F-8 fighter jets and then collided with one of the jets. The damaged Chinese jet crashed into the water and the pilot died. The damaged American airplane made an emergency landing in China’s Hainan Island and all the crew members were safe. The incident immediately became a diplomatic issue between China and the United States. China accused the United States of encroaching on China’s territorial sovereignty and of violation of international law as well as of relevant Chinese laws, and demanded an apology and compensation. The United States responded that the reconnaissance airplane operated outside China’s territorial waters and that the airplane landed in distress. For that reason, the United States refused to render any apology; and instead demanded that China immediately return the American crew and the airplane. After several rounds of diplomatic contacts, the United States finally sent a letter to China on 11 April 2001, expressing its sincere regret over the Chinese missing pilot and aircraft and used the word “sorry” for their loss. The letter also used the word “sorry” for the American airplane’s entering into China’s airspace and landing without verbal clearance.1 On the next day, China allowed all 24 crew members to leave. However, the damaged American spy airplane did not leave China until 3 July 2001 after it had been dismantled and packed. The Chinese asked for one million US dollars for the costs relating to the aircraft, but the Americans only offered 34,567 US dollars, which was refused by the Chinese.2 The compensation for the cost is still a pending issue to be resolved between the two sides. The incident created a number of legal issues, some of which have not yet been clarified in international law and international legal literature.

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Is the airspace above the EEZ international space? As the United States alleged, the spy airplane was in international space when the aerial incident occurred. Then the legal question to be first answered is whether the airspace above the EEZ is international. It was admitted that the overflight issue in the EEZ was one of the neglected issues in the new law of the sea.3 The sovereignty over airspace was established firmly after World War I with the adoption of the 1919 Convention for the Regulation of Aerial Navigation (Paris Convention). Article 1 of the Paris Convention recognized the complete and exclusive sovereignty of the Contracting Parties over the airspace above their territories.4 Before that freedom of the air was advocated by some jurists and actually applied.5 The sovereignty over airspace is reaffirmed in the Convention on International Civil Aviation (Chicago Convention) adopted in December 1944, which is still applicable to international civil aviation today.6 Since then, it has become a principle of international law. The legal basis of controlling the airspace over the territory of a state is the sovereignty over the land and/or sea below. That is to say, only if a state owns the sovereignty of a certain piece of land or sea can that state accordingly claim the sovereignty of the airspace over it. It is clear that without the sovereignty over the land, there will be no sovereignty over the superjacent airspace. Thus the vertical sovereignty over the airspace comes from the horizontal sovereignty of the state to the land and the sea. The sovereignty over airspace can be regarded as an extension of the sovereignty over the land or maritime territory. This is similar to the principle of “land dominating the sea”, i.e. with the ownership of land mass, a coastal state may claim an area of ocean space as its internal waters, territorial sea, EEZ, or continental shelf under its sovereignty or jurisdiction for certain purposes in accordance with the law of the sea. Although the LOS Convention generally governs the various regimes regarding the use of the oceans, it mentions on several occasions regulations on maritime overflight. The sovereignty of a coastal state to its territorial sea extends to the airspace of the territorial sea so that aviation over the territorial sea is subject to the authorities of the coastal state. There is no innocent passage for foreign aircraft in the airspace over the territorial sea.7 Different from this is the regime of transit passage applicable to the straits used for international navigation. Accordingly, both foreign vessels and aircraft can exercise the right of transit passage through these straits despite the fact that the coastal state enjoys the sovereignty over the airspace superjacent to such straits.8 The right of transit passage is similar to innocent passage in the sense that both apply to the passage of foreign vessels and aircraft subject to a series of conditions imposed by the LOS Convention, and different from innocent passage in that both vessels and aircraft enjoy the right of transit passage. In terms of overflight above the EEZ and the continental shelf, the LOS Convention retains the freedom of high seas there, but such freedom should be subject to the relevant provisions governing the EEZ and continental shelf.9 It is interesting to note that while there is no mention of the legal status of the airspace superjacent to the EEZ, the LOS Convention provides that “rights of the coastal state over the continental shelf do not affect the legal status of the superjacent waters or of the airspace above those waters”.10

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Furthermore, the exercise of the rights of the coastal state over the continental shelf must not infringe or result in any unjustifiable interference with navigation and other rights and freedoms of other states as provided in the LOS Convention. Thus, if we compare the relevant provisions regarding the subjacent waters and airspace over the continental shelf and the high seas with those over the EEZ, we can find a difference which may have implications for the difference of the legal status of the superjacent airspace of the EEZ. On the other hand, since the waters above the continental shelf and the EEZ are overlapping within the 200 nm limit, the provisions regarding the legal status of the superjacent waters and airspace over the continental shelf are also applicable to the airspace above the EEZ. Such applicability may be used as one of the justifications to argue for the international nature of the airspace above the EEZ. In so doing, it should be remembered that such applicability is not direct to the EEZ itself, so that there still remains a difference between the EEZ and the continental shelf. That is why the LOS Convention puts them into different parts of regulation. It has been argued that since the EEZ is a maritime zone extending from the territorial sea baselines outward adjacent to the territorial sea, the superjacent airspace is not part of the EEZ.11 It is true that unlike the sovereignty over the territorial sea, there is no mention in the LOS Convention of sovereign rights and/or jurisdiction of a coastal state to the airspace above the EEZ. To the contrary, the freedom of high seas regarding overflight is preserved for the EEZ. However, it is clear that the fact some of the freedoms of high seas remain in the EEZ does not mean that the EEZ is the high seas. These are “residual rights” as a compromise to establish the EEZ, just as the innocent passage is a compromise for the establishment of the territorial sea. In comparison with the territorial sea, the state’s control of the airspace over the territorial sea is tighter than the control of the territorial sea itself. The sovereignty of the adjacent state over the airspace is of no concession as that over its territorial sea where innocent passage is conceded to foreign vessels. The right to fly through the airspace of another state may be realized through a multilateral treaty, such as the Chicago Convention, or through a bilateral agreement between the user state and the airspace state. Under such circumstances, reciprocity principle usually applies. There is no right of innocent passage for foreign aircraft through the airspace of a state. Connecting this to the EEZ regime, a question is naturally raised of whether the freedom of overflight is one hundred percent identical to the freedom of overflight in the high seas, which constitute a global commons, while the EEZ is part of the sea areas within national jurisdiction. As Orrego Vicuña expounds: Although the freedoms applied to the exclusive economic zone are qualitatively the freedoms of the high seas, they do not represent an extension of the regime of the high seas per se, but originate from the specific regime of the exclusive economic zone and, as such, are subject to its restrictions and modalities, whether directly or by adaptation of some norms of the high seas to the context of the zone 12 It is rightly concluded that after the conclusion of the LOS Convention and the establishment of the EEZ regime, “freedom enjoyed by other states in the EEZ are in no

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way equal in their scope to high seas freedoms”.13 It is self-evident from the relevant provisions of the LOS Convention, but the United States, being the strongest maritime power, deliberately turned a blind eye to it, and argued otherwise. It is argued that the United States is not yet a party to the LOS Convention so that it is not bound by it. However, the United States regards the LOS Convention (except Part. XI on deep seabed mining) as a codified body of customary law.14 While the United States has established its own EEZ and carried out law enforcement against foreign States, it should at least respect the EEZ regimes established by other countries under the LOS Convention. There is a discrepancy regarding the concept of the EEZ between the legal term and the operational term. The United States navy divides the ocean into two categories: national waters and international waters, for operational and mobility purposes.15 The airspace above the sea is accordingly divided as national and international. Thus the operational term “international space” referring to the airspace above the EEZ cannot find its equivalent in international law, and it should not be taken for granted as a legal term. As far as national legislation is concerned, there are in general three types of legal forms governing the aviation over the EEZ. The first one expressly mentions the high seas freedom and the domestic legislation should in no way affect such freedom.16 This is the most generous domestic legal governance of the aviation over the EEZ without any restriction. The second one allows the freedom of overflight above the EEZ so long as such freedom complies with international law and relevant domestic laws.17 The Chinese legislation belongs to the second category as it provides that Any country shall enjoy the freedom of navigation in and of overflight over the exclusive economic zone of the People’s Republic of China, and the freedom to lay submarine cables and pipelines in the exclusive economic zone and on the continental shelf of the People’s Republic of China, and the expediency of other lawful uses of the sea related to the above freedoms, under the condition that the laws and regulations of the People’s Republic of China as well as international law are complied with.18 Unlike the first category, this one imposes some conditions on the exercise of the freedom of overflight. The third category is close to the second but different from the latter in that it particularly mentions the “airspace” over the EEZ.19 The national legislation governing the airspace over the EEZ indicates that this airspace is no longer an international space; otherwise, there is no need for individual states to enact specific regulations to govern its overflight.20 The demand for compliance with domestic laws and regulations contained in the relevant laws further reinforces the argument that the airspace over the EEZ is no longer international space in the legal sense. It should be noted that some national laws even attempt to extend the sovereignty up to the airspace over the EEZ.21 Although this can be regarded as an excessive claim, it implies at least that the conception of the airspace over the EEZ has been fundamentally changed since the establishment of the EEZ regime. In conclusion, after the establishment of the EEZ regime, the superjacent airspace over the EEZ cannot be simply perceived as international airspace though freedom of overflight remains there. To be more precise, the airspace above the EEZ can be defined

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as airspace above the maritime zone of national jurisdiction where freedom of high seas applies under the conditions resulting from applicable rules of international law including the LOS Convention provisions concerning the EEZ. Are foreign military activities allowed in the EEZ in time of peace? According to the LOS Convention, all the seas in the world shall be used peacefully, and any threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the principles of international law embodied in the Charter of the United Nations, shall be prohibited.22 From this basic legal principle, military activities with threatening potentials should not be carried out in the EEZs of other countries. The first question is what military activities are. According to one scholar, military use of oceans consists of two categories: movement rights and operational rights. The former embraces the notion of mobility and includes such legal rights as transit passage through straits used for international navigation, innocent passage in territorial seas and archipelagic waters, and high seas freedom of navigation and overflight, and the latter includes such activities as task force maneuvering, anchoring, intelligence collection and surveillance, military exercises, ordnance testing and firing, and hydrographic and military surveys.23 For the purpose of this chapter, military activities refer to those activities in the second category as defined above, i.e. other than simple navigation or overflight. As we know, there is controversy about whether the conduct of military activities in the EEZ of another country is legitimate. Some states may invoke Article 58(1) of the LOS Convention to justify their military activities in other countries’ EEZ. The provision reads: [i]n the exclusive economic zone, all States, whether coastal or landlocked, enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in article 87 of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention. Freedoms in the high seas provided in Article 87 are thus applicable to the EEZ as long as they are not contrary to other provisions of the LOS Convention. According to maritime powers such as the United States, the wording freedoms “associated with the operation of ships, aircraft” implies the legality of naval maneuvers in a foreign EEZ.24 One view even considers military exercises, aerial reconnaissance, and all other activities of military aircraft freedom of high seas if due regard is paid to the rights and interests of third states.25 As advocated, since the LOS Convention mainly provides the rights of navigation and overflight, while keeping silent on the rights of military activities, a maritime superpower must defend and enforce such rights for its security interests.26 Then the question is whether military use constitutes an internationally lawful use of the ocean. The LOS Convention does not mention military use so that it becomes a gray

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area which leads to different interpretations. This no-mention is criticized as one of the major defects in the new LOS Convention.27 On the other hand, it is argued that without an express mention in the Convention, military use is hardly regarded as one of such lawful uses. However, such argument may not be convincing. According to a fundamental legal principle, nothing is illegal if there is no law to make it so.28 Following this, military use is not prohibited since there is no such prohibition in the LOS Convention. Second, as the LOS Convention affirms, matters which are not regulated under it should be continually governed by general international law including customary law. If history is traced back, military activities were consistently allowed under customary international law, though in the implied form. Third, it is admitted that there is a difficulty in inferring that the establishment of the EEZ has limited foreign military operations other than pure navigation and communication from the text and legislative history of Article 58 of the LOS Convention.29 The allowance of military activities under international law does not mean that they can be conducted in the EEZ without any regulation. It should be borne in mind that the circumstances now are fundamentally different from those in the past. There was and still remains no controversy regarding military activities conducted in the high seas, which was and is open to all. The EEZ is different from the high seas in that it is an area under national jurisdiction. While military activities are allowed there, the factor of national jurisdiction must be taken into account. There should be some kind of check-and-balance mechanism for foreign military activities in the EEZ. It is hard to understand the logic of the argument that while marine scientific research in the EEZ is subject to the consent of the coastal state, military activities can be conducted freely without any check by the coastal state. On the other hand, even if the military use is an internationally lawful use, it can be argued according to the LOS Convention that it is limited to navigation and overflight, and other rights as provided in Article 87 of the Convention. This can be seen from some domestic EEZ legislations, such as Surinam’s.30 In practice, costal states, including Bangladesh, Brazil, Cape Verde, India, Malaysia, Pakistan, and Uruguay explicitly restrict unapproved military exercises or activities in or over their EEZs conducted by other countries. According to the Brazilian law, military exercises or maneuvers, in particular those that imply the use of weapons or explosives, can only be carried out with the consent of the Brazilian Government.31 Brazil is perhaps the most adamant country which strictly regulates foreign military activities in its EEZ. As early as December 1982 when Brazil signed the LOS Convention, it made a statement of this kind which was reiterated several times afterwards. The United States reacted to it on each occasion by protesting against Brazil’s restrictions and stating its reservation of military exercises in Brazil’s EEZ as internationally lawful uses of the ocean.32 The other typical country is Iran, which also lays down laws restricting foreign military activities in its EEZ by stipulating that “[f]oreign military activities and practices, collection of information and any other activity inconsistent with the rights and interests of the Islamic Republic of Iran in the exclusive economic zone and the continental shelf are prohibited”.33 Because of this legal provision, there was a diplomatic row between Iran and the United States. The United States lodged a protest against it by stating that the prohibition of military activities contravenes international law and the United States reserves its rights in this regard. In reply to the United States’ protest, the Iranian

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diplomatic note states that due to the multiplicity of economic activities, it is possible that such activities, for which the coastal state enjoys sovereign rights, could be harmed by military practices and maneuvers; accordingly, those practices which affect the economic activities in the EEZ and the continental shelf are thus prohibited.34 It is interesting to note that the Iranian explanation does not deny the right of foreign military activities in the EEZ and the only reason for their prohibition results in their possible harm to economic activities there. In comparison, some restrictions are milder, such as the law of Cape Verde which requires foreign entities and ships exercising high seas freedom or conducting other activities to respect its sovereign rights, its laws and regulations, and the principle of the peaceful uses of the oceans.35 The regulations above are made under the rationale that military activities are inherently potential threats to peace and good order of the coastal states. While such regulations are understandable, it should be borne in mind that not all military activities are threatening. Contrarily, some military activities, such as the activities undertaken by the UN peacekeeping forces, are indispensable to maintain peace and good order. In the same thinking, some civilian activities may be threatening and this can be illustrated by a severe marine pollution accident caused by a civilian activity or illegal fishing in the EEZ. In such context, what we should look into is not the form of a certain activity, but its nature. If a military activity is threatening in nature and with clear bad intention and/or in a hostile manner, it should be banned in the EEZ. Otherwise, it can be allowed under certain conditions laid down by the coastal state, similar to the marine scientific research regime under the LOS Convention. There is no reason why the coastal state is prevented from regulating foreign military activities in its EEZ while it is allowed to regulate foreign marine scientific research there. What measures should be taken by the coastal state against illegal activities in its EEZ? Freedom of high seas is retained in the EEZ under the LOS Convention and it requires the states which exercise such freedom, possibly including peaceful military activities, in the EEZ to pay due regard to the rights of the coastal state and to comply with the laws and regulations adopted by the coastal state and other rules of international law.36 If a user state has violated relevant laws of the coastal state and/or rules of international law, it should bear some state responsibility on the one hand and the coastal state may seek necessary remedies on the other. The coastal state has sovereign rights to resources and jurisdiction over certain matters in the EEZ under the LOS Convention and may take necessary measures to curb any activities in violation of its laws and regulations, particularly those relating to natural resources. China enacted its law on the EEZ in 1998, which requires all foreign entities and individuals to abide by the relevant Chinese laws and regulations when they conduct activities in China’s EEZ. Regarding the resources management, China may take such measures as visit, inspection, arrest, detention, and institution of judicial proceedings against violations. It may also exercise the right of hot pursuit.37 The Chinese law does not mention whether China has the right to use force in response to severe violations of

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the relevant laws in its EEZ. The general understanding is that China disfavors any measures of military reprisal against violations in the EEZ. This can be seen from the statement China made on the occasion of signing the 1995 Agreement for the implementation of the LOS Convention relating to the conservation and management of straddling and highly migratory fish stocks in 1996.38 As to the legality of use of force and self-defense regarding the rights of the coastal state in its EEZ, they will be discussed in the following section. It is admitted that even though China has established its 200-nm EEZ, a large amount of this maritime zone still remains beyond the actual control of China’s jurisdiction. Law enforcement at sea is usually weak in China. Since the 1998 EEZ and Continental Shelf Law contains no stipulations governing the rights of freedom for foreign aircraft and vessels, it is suggested that laws on traffic safety in the EEZ should be urgently enacted. There is a different treatment in law enforcement between military and non-military vessels and aircraft in relation to law enforcement. The coastal state may visit, inspect, or detain a foreign civilian vessel or aircraft which has violated its laws and regulations, but it cannot do so against a foreign military vessel or aircraft since such a craft enjoys immunity. In the case of innocent passage, the coastal state may only require the foreign warship which has not complied with the laws of the coastal state and has disregarded any request for compliance to leave the territorial sea immediately. While the coastal state is allowed to enact relevant laws and regulations to govern the activities in the EEZ, an issue arises when such certain law is not consistent with, or not expressly permitted by the LOS Convention. As shown above, the laws governing foreign military activities are challenged by the United States and some other Western countries. Under such circumstances, the question of whether a certain activity is “legal” or “illegal” becomes controversial and such controversy in turn affects the normal enforcement of its law by the coastal state as well as possibly causing conflicts between the countries concerned. In order to resolve differences and conflicts, states usually resort to diplomatic channels. Bilateral discussion for agreement and settlement is very common. In 1998 China’s Ministry of National Defense and the United States Department of Defense signed an agreement on establishing a consultation mechanism to strengthen military maritime safety.39 It is related to the spy airplane incident. Under the agreement, both military sides agree that their respective maritime and air forces operate “in accordance with international law, including the principles and regimes reflected in the United Nations Convention on the Law of the Sea” (Art. 1), and consultation could be focused on “measures to promote safe maritime practices and establish mutual trust as search and rescue, communications procedures when ships encounter each other, interpretation of the Rules of the Nautical Road and avoidance of accidents-at-sea” (Art. 2). It is unfortunate that this agreement was unable to help avoid the military air crash over the South China Sea between the two sides. It is reported that after the spy airplane incident, the two sides held several rounds of discussion on military aviation technical issues which were largely ignored before.40 That indicates that after the spy airplane incident, China and the United States have paid more attention to the “rules of the road” in the air so that they can avoid such incidents in the future. In cases where the two sides could not reach an agreement, third party judicial

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settlement may be an alternative. However, since the LOS Convention allows contractual parties to exclude disputes concerning military activities from jurisdiction of international courts or tribunals,41 it is difficult for such disputes to be submitted for third party settlement. On the other hand, it should be noted that this does not prevent states concerned from submitting disputes concerning military activities before the international judiciary. Concerning the spy airplane incident, it seems that the two sides lacked sufficient legal consciousness and enough respect for international law. On the American side, it emphasized that spying over the EEZ of a coastal state was a freedom of high seas the United States had enjoyed for many decades. Based on the assessment above, this claim is clearly excessive. That is why it was criticized by the Chinese side as “abuse of the freedom of overflight”.42 On the Chinese side, China lost a chance to improve its image in the world community by attempting to submit this dispute to the International Court of Justice for settlement. Though the Chinese side used international law to justify its arguments, the incident was finally resolved purely for political considerations and through diplomatic channels. Sinking of the unidentified vessel in China’s EEZ On 22 December 2001, an unidentified ship being pursued by Japan’s coast guard in the East China Sea for infringing Japan’s EEZ sank after being fired on by four Japanese coast guard patrol vessels43 and all 15 crew members on board lost their lives. During the six-hour pursuit, the Japanese vessels fired more than 500 rounds. It is reported that Japan started the fighting.44 China expressed its regret on the deaths and injuries and was concerned with Japan’s use of military force in the East China Sea.45 It was verified afterwards that the place where the mysterious boat sank is about 260 kilometers off China’s territorial sea.46 Therefore, despite there being no clear demarcation line in the East China Sea between China and Japan, the sinking spot is clearly located within China’s EEZ area. Some legal issues have arisen from this incident with regard to the exercise of the right of hot pursuit, use of force at sea, and the degree and extent of self-defense. Hot pursuit Right of hot pursuit is provided in Article 111 of the LOS Convention. Accordingly, when the competent authorities of the coastal state have good reason to believe that a foreign ship has violated its laws and regulations, the hot pursuit of that ship may be undertaken. Such pursuit must be commenced when the foreign ship or one of its boats is within the internal waters, the archipelagic waters, the territorial sea or the contiguous zone of the pursuing state, and may only be continued outside the territorial sea or the contiguous zone if the pursuit has not been interrupted. If the foreign ship is within a contiguous zone, the pursuit may only be undertaken if there has been a violation of the rights for the protection of which the zone was established. In addition, the right of hot pursuit shall apply mutatis mutandis to violations in the EEZ or on the continental shelf, including safety zones around continental shelf

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installations, of the laws and regulations of the coastal state applicable in accordance with the LOS Convention to the EEZ or the continental shelf, including such safety zones. The LOS Convention in Article 111 sets forth a number of conditions for the right of hot pursuit to be exercised: (a) The right of hot pursuit ceases as soon as the ship pursued enters the territorial sea of its own state or of a third state. (b) The pursuit may only be commenced after a visual or auditory signal to stop has been given at a distance which enables it to be seen or heard by the foreign ship. (c) The right of hot pursuit may be exercised only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect. (d) Where a ship has been stopped or arrested outside the territorial sea in circumstances which do not justify the exercise of the right of hot pursuit, it shall be compensated for any loss or damage that may have been thereby sustained. Based on the above provision, it is clear that Japan has the right of hot pursuit when it has good reason to believe that the mysterious ship had violated its laws and regulations governing its EEZ. The hot pursuit can be continued all the way to China’s EEZ provided that it was continuous. Although the right of hot pursuit is provided in the section regarding the high seas in the LOS Convention, there is an interesting phenomenon that in East Asia the provision governing this right is placed in the national laws governing the territorial sea and/or the EEZ.47 Japan’s Law on the Territorial Sea and the Contiguous Zone promulgated in 1996 provides that the execution of official duties by public officials of Japan in relation to hot pursuit within the internal waters, territorial sea, and the contiguous zone may be undertaken in accordance with Article 111 of the LOS Convention.48 The criticism that Japanese vessels somehow violated the law as they did not stop chasing when they entered into China’s EEZ and did not notify China of their entry49 is unfounded as Japan exercised the right of hot pursuit by invoking the relevant provisions in the LOS Convention. However, the question is whether the whole course of hot pursuit exercised by Japan had followed the requirements set forth in the LOS Convention. As is recalled, in the M/V Saiga (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Saint Vincent and the Grenadines contends that Guinea did not lawfully exercise the right of hot pursuit under Article 111 of the LOS Convention in arresting the Saiga, but Guinea denies that its pursuit was vitiated by any irregularity and maintains that the officers engaged in the pursuit complied with all the requirements set forth in the LOS Convention.50 The International Tribunal for the Law of the Sea (ITLOS) finds in its judgment that “the conditions for the exercise of the right of hot pursuit under Article 111 of the Convention are cumulative; each of them has to be satisfied for the pursuit to be legitimate under the Convention”. After having examined the evidence submitted by both sides, the ITLOS finds that some of the conditions were not fulfilled so that the circumstances under which Guinea stopped and arrested the Saiga on 28 October 1997 did not justify the exercise of the right of hot pursuit in accordance with the LOS Convention.51 In the East China Sea case, if Japan’s hot pursuit was not continuous all the time,52 then it could be criticized as an excessive exercise of such right. However, the more important issue is the legitimacy of use of force at sea.

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Use of force and self-defense The next issue which arose from this case is whether Japan (or any other country) has the right to use force against an unidentified ship in the maritime zone within its national jurisdiction or in the high seas or in maritime zones within national jurisdiction of other countries. After World War II, use of force is generally prohibited in international relations. This is expressly stipulated in the Charter of the United Nations in which Article 2(4) states that “[a]ll members shall refrain in their international relations from the threat or use of force against the territorial integrity and political independence of any state, or in any manner inconsistent with the purposes of the United Nations”.53 The LOS Convention has the same stipulation in its Article 301 on peaceful uses of the seas. The principle of peaceful use of oceans fundamentally prohibits the use of force in the maritime area. The Agreement for the Implementation of the Provisions of the United to the Conservation and Management of Straddling Fish Stocks and Nations Convention on the Law of the Sea of 10 December 1982 Relating Highly Migratory Fish Stocks (the 1995 Agreement) applies the principle of restricting use of force in the arrest of ships at sea by providing that “[t]he inspecting State shall ensure that its duly authorized inspectors: … (f) avoid the use of force except when and to the degree necessary to ensure the safety of the inspectors and where the inspectors are obstructed in the execution of their duties. The degree of force used shall not exceed that reasonably required in the circumstances”.54 This is particularly relevant to the incident in the East China Sea. Although Japan has not been a signatory of the 1995 Agreement, the principle embodied in the Agreement should be regarded as a peremptory norm of international law (jus cogens) or at least a norm of customary international law and therefore is applicable to the East Asian seas. Following this principle, states shall refrain from the use of force in the sea areas under national jurisdiction. All the relevant Chinese laws and regulations related to the use of oceans contain no stipulations authorizing the use of force against illegal activities within the waters under its jurisdiction. The measures China uses are hot pursuit, arrest, detention, and legal proceedings in dealing with illegal activities. Even in the bilateral agreements, China prefers adding a provision on the nonuse of force. For example, the Fishery Agreement signed between China and Vietnam in December 2000 provides that “[e]ach party, if it finds that small fishing boats of the other party conduct fishing activities in its water area in the buffer zone, may send a warning, or take necessary measures to order them to leave that water area, but by so doing that party should restrain its action not to detain or arrest the vessels in question, nor to use force”.55 As mentioned above, China always takes the stand against the use of force in ocean uses including fishery management. The Japanese law may be different from the Chinese in that coast guard vessels are allowed to fire at, and even sink, ships that do not obey orders in Japan’s territorial waters.56 However, there are some conditions on the use of force to the effect that the coast guard officers believe that there exists no other means to stop a vessel from proceeding, whose crew members, passengers, or other persons do not comply with the repeated orders to stop, and resist the coast guard officers’ efforts to execute their

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duties.57 In addition, there is no authorization granted to the coast guard to use weapons against foreign vessels beyond Japan’s territorial sea. Thus Japan’s use of force to sink the unidentified vessel in China’s EEZ finds no ground in its own domestic law, or in international law. Nonetheless, Japan attempted to justify its action by using the argument of selfdefense. It is admitted that while it is generally accepted in international law that use of force is prohibited, there is an exception in the case of self-defense. According to Article 51 of the UN Charter: Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security. This article recognizes the inherent right of individual or collective self-defense if an armed attack occurs. A further lawful use of force is envisaged in Article 42, whereby the UN Security Council may take military enforcement measures in conformity with Chapter VII of the Charter. However, there are a number of conditions to be fulfilled before a state may resort to the use of force as self-defense. According to Cassese, the following stringent conditions should be imposed: (i) the necessity for forcible reaction had to be instant, overwhelming, leaving no choice of means, and no moment for deliberation; (ii) the use of force was to be exclusively directed to repel the armed attack of the aggressor state; (iii) force had to be proportionate; (iv) the use of force had to be terminatéd as soon as the aggression had come to an end; and the states acting in selfdefense had to comply with the fundamental principles of humanitarian law.58 In addition, “armed reprisals in response to small-scale use of force short of an ‘armed attack’ proper, have been regarded as unlawful both against states and against terrorist organizations”.59 The conditions on use of force in the circumstances of self-defense are also expounded by international courts. There are several cases handled by the International Court of Justice (ICJ) concerning the legality of use of force and self-defense. The first one is the Corfu Channel case in 1949. The ICJ rejected the United Kingdom’s statement that its mine-sweeping was a method of self-protection or self-help and declared that the action of the British Navy constituted a violation of Albanian sovereignty.60 On the other hand, the Court held that the readiness of the British ships to use force if attacked was not an unreasonable precaution so that the United Kingdom had not violated international law. It indicates that actual recourse to force in self-defense would have been legitimate in the event of an attack.61 The ICJ emphasized that the entitlement to resort to self-defense under Article 51 of the UN Charter is subject to the conditions of necessity and proportionality. In the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.

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United States of America), the Court upheld that “there is a specific rule whereby selfdefense would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary international law”.62 In the Legality of the Threat or Use of Nuclear Weapons advisory opinion in 1996, the ICJ concludes unanimously that a threat or use of force by means of nuclear weapons that is contrary to Article 2 (4) of the United Nations Charter and that fails to meet all the requirements of Article 51, is unlawful; and a threat or use of nuclear weapons should also be compatible with the requirements of the international law applicable in armed conflict, particularly those of the principles and rules of international humanitarian law, as well as with specific obligations under treaties and other undertakings which expressly deal with nuclear weapons. However, the views of the judges are sharply divided and the Court finally reached the following decision by the President’s casting vote: It follows from the above-mentioned requirements that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law. However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defense, in which the very survival of a State would be at stake.63 From the above decisions, it can be seen that the ICJ is very cautious of justifying the use of force, even in the circumstance of self-defense. In addition, the ITLOS also touched upon the issue of use of force and self-defense in the M/V Saiga (No. 2) Case (Saint Vincent and the Grenadines v. Guinea) in 1999. The ITLOS expressed a very important view that Although the Convention does not contain express provisions on the use of force in the arrest of ships, international law, which is applicable by virtue of Article 293 of the Convention, requires that the use of force must be avoided as far as possible and, where force is unavoidable, it must not go beyond what is reasonable and necessary in the circumstances. Considerations of humanity must apply in the law of the sea, as they do in other areas of international law.64 Based on the above, the ITLOS finds that “Guinea used excessive force and endangered human life before and after boarding the Saiga, and thereby violated the rights of Saint Vincent and the Grenadines under international law”.65 The very purpose of self-defense is designed to maintain rather than disrupt the international legal and political order. What is more serious is the fact that the mysterious boat was sinking in China’s EEZ upon the fire of the Japanese. Such “use of force, particularly in another country’s claimed EEZ, was out of proportion to the alleged offense”.66 The difference between the territorial sea and the EEZ should be borne in mind in that the freedom of navigation is preserved in the EEZ. Japan may exercise its right of visit, arrest, and hot pursuit in its EEZ on the ground that a foreign vessel has violated its laws and regulations concerning fisheries and/or other matters prescribed by

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the LOS Convention. There is no stipulation in the LOS Convention which grants Japan to use force against suspicious foreign vessels. Furthermore, there is no right for a coastal state to arrest foreign governmental vessels in its territorial sea and EEZ, much less to use force on it. Japan did not fulfill the conditions to use of force for self-defense. In a word, from the above principles and conditions in international law, Japan’s argument of selfdefense is unfounded and its action of use of force is excessive and has constituted a violation of international law. Salvage issue Another legal issue arising from this case is regarding the right to salvage in other country’s EEZ. After the incident, Japan expressed its intention to salvage the sunken boat as a necessary step to investigate the whole matter. Maybe there will be some difficulty in doing so because the sunken boat is located in China’s EEZ. Although the Chinese EEZ law does not contain any provision regarding the management of salvage within China’s EEZ, other relevant laws and regulations exist. The Regulations on the Protection of Underwater Cultural Relics promulgated in 1989 provide that all cultural relics originating from China, unknown countries or foreign countries which are located in China’s jurisdictional waters belong to China, and any exploration and excavation must be approved by relevant Chinese authorities. Foreigners cannot conduct exploration or excavation activities alone, but only in cooperation with the Chinese side.67 A recent sunken boat may not be categorized as a “cultural relic”, but the above regulations can analogously apply. In other words, the salvage is subject to the consent of the Chinese authorities. In fact, the Japanese side has already acknowledged that if a decision of salvage is made, China’s consent to the action is necessary.68 In addition, there is a specific law on salvage of sunken vessels in China relating to the involvement of foreigners. It is the Measures on the Management of Foreign Merchant’s Participation in the Salvage of Sunken Vessels and Sunken Objects in China’s Coastal Waters enacted in December 1992.69 According to the Measures, sunken vessels and sunken objects refer to any kinds of vessels and installations, including the main parts and equipment, any loaded goods and other objects sunken in China’s coastal waters (including the EEZ). Salvage activities should be undertaken in a cooperative way with the Chinese side. However, the Measures do not apply to sunken warships, weapons and other military equipment, which have important military value, or cultural relics. The unidentified sunken boat was not a military vessel, but a suspected spy vessel disguised as a fishing vessel. In that sense, it can be treated as a non-military vessel so as to allow the Measures to apply. As Japan expressed that it might invite a private company to do it,70 the would-be appointed company should find a Chinese collaborator to jointly undertake the salvage in accordance with the Chinese law. Nevertheless, the above Measures may not fully apply to the investigation of the sunken vessel conducted by the Japanese side. After several months of negotiation, China finally agreed to Japan’s salvage proposal for the sunken vessel. According to the spokesman of the Chinese Foreign Ministry, the Chinese consent was based on the LOS Convention and relevant Chinese domestic laws. He said that Japan recognized China’s sovereign rights and jurisdiction over its EEZ, explained to the Chinese all questions of

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concerns, submitted to China the proposal of underwater investigation, and completed necessary procedures. In addition, Japan promised not to cause any pollution to the marine environment and to inform China of the results of the investigation.71 However, the Chinese spokesman did not specify what particular domestic laws China has invoked. It is assumed that the above Measures might have been used in the Sino-Japanese negotiation because Japan hired a private company rather than government agencies to conduct the investigation. China also sent ships to monitor the whole process of Japan’s investigation, which took place during 1–8 May 2002. For further undertakings of salvage, Japan made the following promises: (a) to coordinate with the Chinese law enforcement vessels which monitor the area in question; (b) to take necessary measures to ensure that the salvage will not pollute the marine environment during the operation period; (c) to report to the Chinese side the development of the salvage and the result of the investigation; and (d) to withdraw all the ships immediately from the area in question after the operation. Japan also considered the possible compensation for the Chinese fishermen whose interests could be affected by Japan’s operation.72 At present, China and Japan have begun to negotiate on the maritime boundary delimitation, but so far there is no substantial progress. However, in 2001 China and Japan reached an agreement of mutual prior notification when conducting maritime research activities in each other’s claimed EEZ waters. It can be regarded as a provisional measure pending the settlement of the maritime boundary delimitation and can ease unnecessary tensions resulting from marine scientific research activities in the disputed areas in the East China Sea. Conclusion Since the EEZ is now part of the sea areas under national jurisdiction, the coastal states endeavor to strengthen their jurisdiction over that part. The EEZ regime, particularly concerning foreign military activities, needs improvement and amendment both at the international and national levels. In comparison with the long-established concept of territorial sea, the EEZ is still a relatively new concept in international law. As is known, the LOS Convention keeps silent on the issue of military uses in the EEZ, though it requires the contractual states to use the oceans for peaceful purposes. The caveat in the law of the sea needs to be filled and gray areas in the LOS Convention need to be clarified in the near future. The window of opportunity is open now since the LOS Convention will be subject to review after 2004 when it has entered into force for 10 years.73 States that would like to have existing provisions amended or to add new provisions governing the relevant issues this chapter addresses should take the opportunity to submit proposals to the review conference. It is hoped that a generally accepted legal arrangement on military activities in the EEZ can be ironed out in order to accommodate the conflicting interests among different countries. On the other hand, since the concept of EEZ is relatively new, state practice with regard to it is not ample. Though the EEZ is defined as a maritime zone within national jurisdiction, coastal states are not yet fully prepared to exercise their jurisdiction adequately. When we look into the relevant EEZ laws, we can easily find that they are

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very general and simple without detailed enforcing measures. The Chinese law is a typical example. Implementing the LOS Convention at the domestic level needs a set of detailed and enforceable regulations enacted by the coastal state to realize its maritime rights as well as fulfill its obligations under the LOS Convention. Only based on the principle of rule of law can the marine legal order in East Asia be improved and well maintained.

2 Basic marine laws of mainland China and Taiwan Comparisons and regional implications Introduction The UN Year of the Ocean—1998—is significant for China, including both Taiwan and the mainland, in respect of the marine legislation. Early in January that year Taiwan promulgated its Law on the Territorial Sea and the Contiguous Zone and the Law on the Exclusive Economic Zone (EEZ) and the Continental Shelf,1 while in June the mainland also promulgated its Law on EEZ and the Continental Shelf2 which is another major marine legislation after its 1992 Law on the Territorial Sea and the Contiguous Zone.3 Thus an interesting phenomenon occurred: two governments of China promulgated two sets of basic marine laws applicable to the same geographical areas. Since such laws are of strong extraterritorial nature, a comparison is necessary in the context of international law. Also, since China is now a divided nation, the above laws of the same nature certainly carry political, economic, and strategic ramifications. This chapter attempts to review and assess these laws to see how they were formulated and to what extent they can be implemented in practice; what kind of difficulties the two governments of China face to implement these laws and whether there is a possibility to coordinate, or even unify, these laws in the future for the interest of the whole of China. It should be pointed out that China referred hereto is a “greater China” including the mainland and Taiwan. Despite the consensus, the interpretation of “one China” by the mainland and Taiwan may be different. To Beijing, “one China” means “the People’s Republic of China” with Taiwan to become a “Special Administrative Region” after unification. Taipei, on the other hand, considers “one China” to mean the Republic of China founded in 1912 and with de jure sovereignty over all of China. The ROC, however, currently has jurisdiction over Taiwan, Penghu, Kinmen, and Matsu. Taiwan is part of China, and the Chinese mainland is part of China as well.4 An alternative name for the mainland is the People’s Republic of China (PRC) and for Taiwan the Republic of China (ROC), which will be occasionally used throughout this chapter when necessary. The seas adjacent to China are the Yellow Sea, the East China Sea, and the South China Sea. The Yellow Sea is about 380,000sq km, 44m of depth on average with a maximum depth of 140m. Within the Yellow Sea there is Bohai, which is an internal sea of China. The East China Sea is a wider shallow sea with an average depth of 370m and 770,000 sq km in size. The South China Sea is bounded on the north by mainland China, on the east by the Philippine archipelago, on the south by Kalimantan, and on the west by the Malay peninsular and Vietnam. The area of the South China Sea is about 3.5 million

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sq km with an average depth of 1,212m and a maximum depth of 5,559m.5 One common characteristic of the above seas is their semi-enclosed nature as is defined in the 1982 United Nations Convention on the Law of the Sea (the LOS Convention). The coastal lines along the mainland are more than 18,000km in length, and the coastal lines around islands are 14,000km in length. There are about 6,000 islands in these seas.6 Natural resources including fisheries and petroleum are abundant. Actual jurisdictional maritime zones of mainland China and Taiwan According to the LOS Convention, a coastal state is entitled to have full sovereignty over its internal waters and territorial sea, except that foreign vessels enjoy innocent passage in the territorial sea, and a coastal state has sovereign rights over the EEZ and the continental shelf. For the purpose of realizing these rights granted by international law, a coastal state may enact domestic laws and regulations to govern the above sea areas and human activities therein. Because of the differences in nature between the territorial sea and the EEZ/continental shelf, coastal states usually treat them separately in legislation, which can be seen in the two sets of the laws promulgated by PRC and ROC. The PRC Law on the Territorial Sea provides that it is applicable to all the land territory of China including the mainland and its coastal islands, Taiwan and the islands appertaining thereto, all the islands in the South China Sea (Art. 2). On the other hand, the corresponding Taiwanese Law has no such detailed listing, only mentioning that ROC’s sovereignty extends to cover the territorial sea, airspace above it, and the seabed and subsoil thereof (Art. 2). Since both sides across the Taiwan Strait have claimed their governance over the whole of China, in theory both laws on the territorial sea apply to the entire territorial sea of China. In reality, what each of the sides controls is different: for the mainland, the actual jurisdiction area is the territorial seas of the mainland and its coastal islands and some of the South China Sea islands, particularly the Paracel Islands. For Taiwan, it is Taiwan Island, the Penghu Islands (the Pescadores), Jinmen (Quemoy or Kinmen), Mazu (Matsu), and some islands in the South China Sea, particularly the Pratas Islands. It is obvious that the laws of both sides only apply to the respective territorial sea areas within their actual jurisdiction. What is more complex in the applicability of the laws on the territorial sea as well as the laws on the EEZ is the difficulty resulting from cross-Strait relations. The mainland has long claimed that Taiwan is a province of China and the Taiwan government is a local authority. PRC has firmly opposed the ideas of “two Chinas”, “one China, one Taiwan”, or “one country, two governments”.7 Therefore, PRC does not recognize the validity of the Taiwanese laws such as the territorial sea law or the EEZ law. Despite such claims, the mainland faces a dilemma in that its law, though applicable on paper, cannot apply in reality to the water areas under Taiwan’s jurisdiction. For these waters, the Taiwanese laws apply and they are de facto valid vis-à-vis the mainland law applying to the water areas under the mainland’s jurisdiction. Taiwan’s attitude is somewhat different from that of the mainland. In 1991 Taiwan terminated the Period of National Mobilization for Suppression of the Communist Rebellion and the communist regime in the mainland has since been no longer regarded as a rebellion but as an unfriendly regime

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in control of the mainland. Such a step is regarded as a tacit abandonment of Taiwan’s claim to be the government of the entire China.8 The relationship between the mainland and Taiwan is not international but intranational. Such a characteristic has also been reflected in their marine laws. The PRC law on the territorial sea is proclaimed to apply to Taiwan and its adjacent islands. Though there is no such proclamation in PRC’s EEZ law, it is assumed that the EEZ law is also applicable to Taiwan and its adjacent islands since the EEZ is an extension of the territorial sea of a coastal state. PRC treats, as a government policy, the Taiwanese residents as its nationals so that the Taiwanese can come and go across the mainland border without a visa. However, ROC regards the mainlanders as Chinese, but treats them differently from the Taiwanese. In 1992, ROC adopted the Statute Governing the Relations between the People of the Taiwan Area and the Mainland Area. It has since become a basic law to regulate, inter alia, the entry and exit of the mainlanders to Taiwan Island and other areas under ROC’s control, including the water areas. ROC designated prohibited and/or restricted water areas around Taiwan Island, the Penghu Islands, Jinmen, Matsu, Dongyin, Wuqiu, the Pratas Islands, and Taipin Island in the South China Sea. The mainland vessels are not allowed to enter these areas.9 The ROC territorial sea law, accordingly, provides that the mainland vessels should comply with it when passing through the territorial sea of ROC in addition to the Relations Statute (Art. 7). The term “ROC” used to govern relations between the mainland and Taiwan is confusing because politically the ROC is not Taiwan only. It should be more appropriate to use the term “Taiwan Area” instead of “ROC” in its law. It is acknowledged that the name “ROC” here is closer to the “Taiwan Area” defined in the Statute Governing the Relations between the People in the Taiwan Area and the Mainland Area.10 This is also a dilemma the ROC government faces in the context of cross-Strait relations. Territorial sea and contiguous zone The LOS Convention has established the territorial sea regime including the criteria for baselines, breadth of the territorial sea, innocent passage, and other governance matters. One identical aspect in the laws of the territorial sea of both the mainland and Taiwan is the breadth of the territorial sea: both provide 12 nm.11 While there are other similarities in the two laws, there are at least two major departures from each other. First, the mainland law has continued to insist on its innocent passage regime for foreign warships, i.e. the requirement of prior permission, which was first set forth in the 1958 Declaration on the Territorial Sea.12 Innocent passage means a passage through the territorial sea of a coastal state without creating any prejudicial impact upon the peace, good order or security of the coastal state.13 Article 6 of the PRC law provides that foreign ships for non-military purposes enjoy the right of innocent passage but foreign ships for military purposes are subject to approval by the Chinese government before entering China’s territorial sea. This requirement is not consistent with the LOS Convention, which provides that ships including warships have the right of innocent passage (Art. 17). During UNCLOS III, PRC used every occasion to oppose the adoption of this provision, but its efforts went to no avail. In 1996 when PRC ratified the LOS

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Convention, it made a statement to the effect that the provision on innocent passage in the LOS Convention should not affect the right of the coastal state to regulate the passage of foreign warships in its territorial sea.14 Since PRC has fully realized that its prior permission requirement is in conflict with the LOS Convention, and since PRC ratified that Convention and has to bear the treaty obligation to bring its relevant domestic law in line with the Convention, PRC thus hinted in the same statement that only prior notification may be enough for foreign warships passing through China’s territorial sea. This may require a change of domestic law. Moreover, there is a problem in practice in implementing the two different rules: prior notification and prior permission. It is not clear whether PRC will harmonize its law with the LOS Convention soon.15 In ROC’s law, however, the requirement for the innocent passage for foreign warships is different from that found in the PRC law. The ROC law provides that foreign vessels for military purposes or public services should give a prior notification when passing through ROC’s territorial sea (Art. 7). Prior to 1998, Taiwanese authorities required foreign warships to obtain permission before passing through the territorial sea, thus the legislation represents a significant change of its former position.16 The prior notification requirement seems not consistent with the LOS Convention either, though it is softer than the prior permission requirement. However, since Taiwan is not a signatory to that Convention, it has no obligation to comply with the Convention unless the rule of innocent passage for warships is or becomes part of customary international law. The second major departure in the ROC law from the PRC law is concerning the baselines of the territorial sea. PRC has determined to use the method of straight baselines for the entire territorial sea of China,17 and in May 1996 part of the straight baselines were publicized.18 The publicized baselines are divided into two sets: one comprising 49 basepoints along features on, and adjacent to, its mainland coast and on Hainan Island, beginning at point 1 (Shandong gaojiao) on the eastern tip of the Shandong peninsula situated to the southeast of Bohai, south to point 49 situated on the west coast of Hainan Island; and the other encompassing the Paracel Islands in the northern part of the South China Sea.19 However, parts of the baselines have been criticized for not being consistent with the criteria set forth in the LOS Convention. For example, the coastline from the Shandong peninsula to the area of Shanghai (point 1 to point 11) is essentially smooth, with no fringing islands and few indentations. Thus, it is argued, the straight baseline method should not apply.20 The other criticism is that the archipelagic baselines encircling the Paracel Islands should not be used because PRC is not a mid-ocean archipelagic state.21 It seems that ROC realized the different geographic features of China’s coastlines and endorsed two methods to measure the territorial sea: straight baselines and low-water or normal baselines (Art. 4). According to a Taiwanese scholar, approximately 80 percent of the Chinese coastline can be enclosed by straight baselines and 20 percent by normal baselines.22 On the last day of 1998, ROC publicized part of its baselines encircling Taiwan Island and its associated islands, the Pratas Islands, Scarborough Reef in the South China Sea, and Diaoyu Islands (Senkaku) in the East China Sea.23 Due to political and diplomatic considerations, however, the location of baselines and the outer limit of the territorial sea around Kinmen, Matsu located in the western side of the Taiwan Strait, and for the Spratly Islands group were not announced. Thus, ROC only publicized part of

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the baselines of China, like PRC, to measure the territorial sea of the land territory under its actual control. It is interesting to note that Kinmen and Matsu under ROC’s control are within the baselines declared by PRC. One concern triggered by the different methods being used by PRC and ROC to measure the territorial sea is that two different sets of outer limits of the territorial sea for the whole of China would be created.24 However, both sides across the Taiwan Strait were very pragmatic and only publicized the baselines of the territorial sea under their actual jurisdiction. According to the LOS Convention, a contiguous zone is a zone contiguous to the territorial sea of a coastal state where the coastal state may exercise the control necessary to prevent infringement of its customs, fiscal, immigration, or sanitary laws and regulations within its territory or territorial sea, and to punish infringement of the above laws and regulations committed within its territory or territorial sea. The breadth of the contiguous zone may not extend beyond 24 nm from the baselines from which the breadth of the territorial sea is measured (Art. 33). Before the emergence of the EEZ regime, the contiguous zone was part of the high seas, but now it is within the EEZ of a coastal state. Thus, the legal status of the contiguous zone is the same as what is granted to the EEZ with the above four additional rights within the contiguous zone. In this sense, the contiguous zone and EEZ are overlapping water areas within national jurisdiction. However, since the above-defined jurisdictional rights for the coastal state are in fact extensions from the sovereignty and jurisdiction of that state in its territorial sea, the governance of the contiguous zone is usually regulated together with the territorial sea. Both the Chinese laws provide for a 24 nm contiguous zone and thus are in conformity with the LOS Convention (Article 14 of the ROC law and Article 4 of the PRC law).25 Nevertheless, as far as jurisdictional rights are concerned, both laws go beyond the defined rights under the LOS Convention. Article 13 of the PRC law includes “security” matters under its jurisdiction, in addition to the rights defined in the LOS Convention. During UNCLOS III, the PRC delegation proposed adding this word to the provision on the contiguous zone, but the proposal was rejected.26 Despite the rejection, PRC adopted the wording in its domestic law, which raises a question whether such inclusion is consistent with the LOS Convention. It is said that the adoption of the wording “security” in the PRC law was based upon existing state practice and for the special circumstances of PRC.27 Whether PRC is permitted to establish a security zone in the contiguous zone remains a controversial issue in international law and state practice. The ROC law goes beyond the provision of the LOS Convention as well. Its Article 15 includes commerce, inspection, environmental protection, and illegal broadcasting in addition to customs, fiscal, immigration, and sanitary control. It is noted that some jurisdictional matters are allowed in the EEZ regime, such as environmental protection. Since the contiguous zone is part of the EEZ, there is no question that a coastal state can exercise such rights in the contiguous zone. As mentioned above, ROC is not a party to the LOS Convention, and thus may regulate related matters in the contiguous zone more freely, in comparison with PRC who is a party to the LOS Convention.

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EEZ and continental shelf In April 1958 ROC signed the Convention on the Continental Shelf. In 1968 UNECAFE (United Nations Economic Commission for Asia and the Far East) issued a report, saying that the continental shelf between Taiwan and Japan was one of the most prosperous areas of oil and gas in the world. Encouraged by this report, ROC ratified the Convention in October 1970, but with two reservations: (1) natural prolongation should be used in the delimitation of the continental shelf between states with adjacent or opposite coasts; and (2) rocks and islets should not be considered in the delimitation of China’s continental shelf boundary.28 The reservations themselves are self-evident for the interest of China, particularly in considering the East China Sea continental shelf delimitation. PRC has never recognized the legitimacy of the ratification undertaken by ROC. It did not ratify the Convention on the Continental Shelf. PRC regarded the four 1958 Geneva Conventions on the law of the sea as old international law. This is one of the reasons given by PRC for participation in UNCLOS III: to make the new law of the sea. During UNCLOS III, PRC expressed its position on the establishment of the regime on the EEZ and the continental shelf in its working papers, speeches, and statements. China maintained that the continental shelf was the natural prolongation of the land territory of a coastal state.29 Natural prolongation is meaningful for China as the continental shelf seaward from mainland China is very broad and China has used the concept of natural prolongation to support its claim to the continental shelf in the East China Sea. The delimitation of the continental shelf in the East China Sea is still a dispute between China and Japan.30 In its statement of ratifying the LOS Convention, PRC stated that the delimitation of maritime boundaries for the EEZ/continental shelf with neighboring states was to be done through consultation “on the basis of international law and in accordance with the principle of equity”.31 The 1998 PRC Law reaffirms the above statement.32 Interestingly enough, the provision on boundary delimitation in the 1998 ROC Law is almost identical with that of the PRC Law. However, the ROC Law adds to this provision wording respecting the possibility of a “provisional arrangement” for a transitional period pending the settlement of a boundary dispute. Since the general trend in state practice concerning the boundary delimitation of the EEZ/ continental shelf is towards a single line to delimit the two different and closely associated sea areas, it is reasonable to wonder whether natural prolongation would still play a significant role in such delimitation. The other problem is regarding the maritime boundary between Taiwan and its neighbors. Since all the neighboring countries only recognize PRC as the sole legitimate government of China, the delimitation may be conducted between those countries and PRC without the involvement of ROC, thus greatly affecting the interest and rights of ROC. As early as 1979, ROC declared the establishment of the EEZ of 200 nm by Presidential Decree No. 5046,33 while PRC did the same in 1996 on the occasion of ratifying the LOS Convention,34 despite that they both promulgated the EEZ laws in 1998. As provided in the LOS Convention, a coastal state has the sovereign rights for the purpose of exploring, exploiting, conserving, and managing all the natural resources in the EEZ area and also enjoys jurisdiction mainly over three matters, i.e. the establishment

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and use of artificial islands, marine scientific research, and the protection and preservation of the marine environment (Art. 56). The same rights are also enjoyed by the coastal state on the continental shelf (Art. 77). Accordingly, both of the Chinese EEZ laws reiterate the rights and jurisdiction provided by the LOS Convention (Articles 3–4 of the PRC law and Article 5 of the ROC law). Furthermore, they try to expand their own rights assuming that these rights are not contradictory with the LOS Convention. This is particularly true in the ROC law. For example, for the purpose of its jurisdiction over the marine environmental protection, the ROC, in Article 11 of the EEZ law, may have the right to take action against a suspected vessel of pollution which navigates in its EEZ area. Some of the provisions in both of the EEZ laws are stricter than what is provided in the LOS Convention. For instance, scientific research in the EEZ or on the continental shelf by foreigners should be approved by the respective governments (Article 9 of the PRC law and Article 9 of the ROC law). Fishery management is an important focus of the EEZ legislation. The Chinese laws are no exception. They use the relevant LOS Convention provisions to ensure their rights to the natural resources in the EEZ. The PRC law provides that PRC enjoys the right to conserve and manage the straddling stocks, highly migratory species, marine mammals, anadromous stocks originating from China, and catadromous species which spend the greater part of their life cycle in Chinese waters, while the ROC law only mentions straddling stocks but in a soft tone: foreign vessels should consider the conservation and management measures adopted by ROC concerning its EEZ when they fish the straddling stocks beyond the ROC EEZ. It is not clear why ROC’s tone is softer than PRC’s. One reason may be that the distant-water fishing industry in Taiwan is a big industry and it would like to continue to fish on the high seas and allowable areas within national jurisdiction. On the other hand, it seems that ROC has disregarded the anadromous species originating from the rivers in northern China.35 In this context, the ROC law perhaps is more concerned with the Taiwanese waters rather than with the waters of all of China. There is no mention in either law of the surplus of the allowable catch in the EEZ which, in accordance with the LOS Convention, could be exploited by other countries (Art. 62). It is obvious that in the China seas there is no such surplus. Conservation is more important than develop-ment. Despite this, the Chinese law does not exclude foreign fishing in China’s EEZ. The traditional foreign fishing rights seem guaranteed at least in the PRC law, subject to bilateral agreements. PRC has fishery agreements with Japan, North Korea, South Korea, and Vietnam.36 For example, Japanese fishermen have enjoyed fishing rights in China’s coastal water for a long time. In 1997 PRC and Japan reached a new agreement on fishery management. A joint fishery zone has been established in the East China Sea.37 The unique status of Taiwan also affects fishery management. ROC raised the issue of overlapping areas in the Bashi Channel to the Philippines many times, hoping to reach a fisheries and/or boundary agreement. However, since the Philippines recognized PRC as the sole legitimate government of China and any such deal should be done with Beijing rather than with Taipei, the issue could not be solved easily.38 The legal regime of the continental shelf is closely related to that of the EEZ. For the purpose of natural resource development, the former is more concerned with non-living

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resources while the latter with living resources. That is why in state practice the two regimes are put together in legislation, as is exemplified in the above Chinese laws. In addition to enjoying the same rights and jurisdiction as in the EEZ regime, the coastal state enjoys the exclusive right to authorize and regulate drilling on the continental shelf for all purposes (Article 4 of the PRC law).39 Unlike within the EEZ, the rights of the coastal state over the continental shelf do not depend on occupation, effective or notional, or any express proclamation. Since the EEZ and the continental shelf are different from the territorial sea in that the coastal state only enjoys sovereign rights to the resources there and jurisdiction over certain matters, some rights enjoyed by the world community derived from the freedom of the high seas remain exercisable in the EEZ and on the continental shelf, such as freedom of navigation, freedom of overflight, and freedom of laying submarine cables and pipelines on the continental shelf.40 These rights are expressly reflected in the PRC law, but not in the ROC law. Nevertheless, such omission may be regarded as a tacit agreement to these rights since there are various provisions in the ROC law which regulate navigation, and the laying of cables and pipelines. Even if there is no tacit agreement, these rights should not be affected in the EEZ/continental shelf under ROC’s actual control because, according to the legal nature of the EEZ and the continental shelf, such rights are guaranteed in international law despite the fact that the ROC is not a signatory to the LOS Convention. The LOS Convention gives power to a coastal state to regulate, authorize, and conduct scientific research in the EEZ or on the continental shelf, and encourages marine scientific research for the benefit of all mankind and provides that consent should, in normal circumstances, be granted to those who plan to conduct scientific research in the EEZ and/or on the continental shelf of other countries for peaceful purposes (Art. 246). In both PRC and ROC laws, however, freedom of marine scientific research is restricted, and they are subject to governmental approval. Article 9 of the ROC law further provides that in conducting scientific research, the following regulations should be followed: 1 such scientific research should not interfere in any rights exercised by ROC in its EEZ and the continental shelf; 2 the right to designate representatives to participate in such scientific research by ROC should be guaranteed; 3 provision at any time of progress reports and preliminary and final conclusions; 4 provision at any time of the complete copies, data, and specimens of unharmed scientific value and all assessment reports; 5 the use of research materials should not harm security and interest of ROC; 6 immediate notification should be given to the ROC government when the plan has a substantial change; 7 no investigation of marine resources except otherwise agreed; 8 the marine environment should not be damaged; and 9 all research facilities and equipment should be moved away immediately after the completion of the work. The PRC law has no such detailed provisions, but the wording “… shall comply with the laws and regulations” of the PRC indicates that the relevant laws and regulations will

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37

apply in this respect. In 1996 PRC adopted the Regulations on the Management of Marine Scientific Research Involving Foreigners, which has detailed regulations to govern foreign scientific research activities in the EEZ and on the continental shelf.41 In order to ensure its sovereign rights to the EEZ and full compliance with its laws, Article 12 of the PRC law provides that the PRC may take necessary measures such as visit, inspection, arrest, detention, and institution of judicial proceedings. In addition, PRC may exercise the right of hot pursuit against the vessels involved in a violation of the PRC law. The PRC law contains no detailed penalty clauses. On the contrary, however, the ROC law has ten clauses which deal with penalty as well as compliance. Penalties will be imposed for violations relating to dumping of waste, damaging of natural resources or the natural environment, illegal fishing, illegal construction of installations, illegal scientific research, illegal laying of pipelines and cables. In serious cases, criminal charges may be imposed. It is unknown whether they are applicable to mainland Chinese, but it is assumed if mainland Chinese violate the law within the ROC’s effective jurisdiction, they will be subject to these penalties. Though the PRC law is simpler than the ROC law in terms of compliance and penalty, it is expected that, as a general practice, the PRC will enact relevant regu-lations to implement its EEZ law, which will be detailed with regard to penalty and other issues. Future prospects The application of the ROC laws to the China seas faces a real dilemma. It is assumed to apply to the entire territory of the ROC including the mainland and Taiwan, but in reality its jurisdiction is limited to Taiwan and other above-mentioned islands. Such dilemma is also reflected in the laws by themselves. For example, in the ROC territorial sea law, it provides that mainland vessels, when passing through the territorial sea of the ROC, should comply with that law in addition to the Statute Governing the Cross-Strait Relations (Art. 7). It is clear that here “ROC” refers only to the Taiwan Administration region without the inclusion of the mainland and other areas beyond its jurisdiction. Second, the above dilemma is exacerbated even more by the situation that all the countries neighboring Taiwan have no official diplomatic ties with it, and recognize the PRC as a sole legitimate government of the entire China. Thus an inherent defect is embodied in the ROC laws in terms of implementation and enforcement, particularly the stipulations concerning boundary delimitation with neighboring countries. It is not known how and when the ROC would initiate any boundary delimitation process according to its own law. A proposal that such a process is authorized by the PRC or that the PRC represents the ROC for such a process will definitely be unacceptable to the ROC. The current status quo of a divided China is a major obstacle to resolving maritime boundary issues between China and its neighboring countries, particularly Japan and the Philippines. At present, the two sets of marine laws above will no doubt cause conflicts of jurisdiction between the present two authorities across the Taiwan Strait. It is expected that some kind of interim arrangements regarding the maritime jurisdiction for both sides will be negotiated as implementing steps for the above laws. There will be a common

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position of the two sides on maritime boundary delimitation with relevant neighboring countries. It is recalled that both sides have taken a concerted position on the South China Sea. Unless Taiwan achieved independence, these arrangements would remain “domestic” in nature. Another factor affecting the implementation of the above marine laws in the crossStrait relations is the possible reunification of China. It raises the question whether there will be a future unification of the laws concerning state territory including the above basic marine laws. The case of Taiwan is different from Hong Kong in regard to the possible unification of the marine legal systems. According to the Basic Law of the Hong Kong Special Administrative Region, Hong Kong can retain its existing legal system including the common law, law of equity, and customary law applicable in Hong Kong.42 As to the marine areas, Hong Kong only has internal waters within the publicized baselines of the PRC in 1996. Therefore, Hong Kong itself has no territorial sea, much less an EEZ or continental shelf. On the other hand, since the matters relating to the territorial sea and the EEZ/continental shelf are matters within the power of the central government, the laws of territorial sea and EEZ accordingly are applicable to Hong Kong as provided in Annex III of the Basic Law and other late-on additions.43 However, Taiwan itself owns a vast sea area and has adopted laws on the territorial sea and EEZ. Taiwan has never regarded itself as a subordinate to the mainland as a province claimed by the PRC. It considers itself an equivalent entity vis-à-vis the mainland. Unlike Hong Kong which is always a subordinate to a state, Taiwan claimed to be such an independent nation state as the ROC on Taiwan. It has a national legal system parallel to that of the mainland. Thus it would be impossible to simply retain the legal system of Taiwan after China’s reunification following the Hong Kong model. In terms of the unification of the marine laws, there is also a linguistic problem. The two sides across the Taiwan Strait have used some different expressions of the basic legal terms in the law of the sea. The typical differences lie in the concepts of “the continental shelf” and “the contiguous zone”. Such differences bear a political connotation. As we know, only in 1971 the PRC replaced the ROC for the China seat in the United Nations. Before that time ROC was a legitimate representative of China in the United Nations system. Thus for the first and second UN Law of the Sea Conferences, the ROC delegation participated in the negotiations. The Chinese versions of the 1958 Geneva Conventions on the Law of the Sea were translated by the ROC side. However, the PRC attended UNCLOS III and was responsible for the Chinese version of the LOS Convention. Though the ROC carefully considered the stipulations of the LOS Convention in adopting its territorial sea and EEZ laws, it still continued using the Chinese terms contained in the 1958 Conventions instead of the Chinese terms in the LOS Convention. Thus, the political connotation is obvious: the ROC would seek its legitimacy through historical international legal documents. Nevertheless, in considering the future unification of marine laws, such linguistic differences should be eliminated. In conclusion, the marine legislation of the two authorities in China is an interesting phenomenon in the legal as well as in the political fields. The laws of the two sides are supposed to apply to China as a whole, but in reality their application is only limited to the areas under the actual control of either the mainland or Taiwan. In comparison, the PRC laws are superior to those of the ROC in implementation and enforcement because

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39

of the PRC’s stronger international status and wider diplomatic ties with all China’s neighboring countries. The inferiority of the ROC laws does not mean that these laws could not be implemented in practice, but their application is limited not only geographically but also politically. Potential conflicts in implementing the above laws will arise since they are made and enforced by different authorities. On the other hand, for the purpose of safeguarding national interests, all the above laws take the same position vis-à-vis other countries, particularly on maritime boundary delimitation and territorial sovereignty over disputed islands in the East China Sea and the South China Sea. In this sense, they are complementary. Yet, it is still, in any case, too early to predict that the marine laws above will be unified to apply to the entire China due to the current unstable cross-Strait relationship, particularly after the Democratic Progressive Party, a pro-independence party in Taiwan, came to power in 2000.

Part II Territorial disputes and maritime boundary delimitation

3 The Chinese traditional maritime boundary line in the South China Sea and its legal consequences Background The South China Sea is a semi-enclosed sea under the definition set down in the United Nations Convention on the Law of the Sea (LOS Convention).1 It has an area of 648,000 sq nm, twice the area of the Sea of Japan.2 There are hundreds of small islands in the South China Sea, namely uninhabited islets, shoals, reefs, banks, sands, cays, and rocks.3 They are distributed widely in the form of four groups of islands and underwater features, i.e. the Pratas Islands (Dongsha Qundao), the Paracel Islands (Xisha Qundao), the Macclesfield Bank (Zhongsha Qundao), and the Spratly Islands (Nansha Qundao). It is interesting to note that in Chinese these groups of small islands have a big name, “qundao”—archipelago. Such a nomenclature is questionable in law and/or in geography,4 particularly for the Macclesfield Bank that is permanently submerged under the water, though a common Chinese view has considered Scarborough Reef part of the Macclesfield Bank.5 If such a view were generally accepted, then the English name should be changed to “Macclesfield Islands”,6 like those of the other three groups. However, a detailed discussion of this is beyond the scope of this chapter. The political situation in the South China Sea is complicated, as it contains the potential for conflict of different national interests. In terms of the islands groups, because of their geographical differences, their political situations accordingly differ from each other. The Pratas Islands are under the firm control of the Taiwan Chinese. No competing claims exist there under the concept of “one China”. For the Macclesfield Bank, the only claimant is China including Taiwan.7 However, if Scarborough Reef is to be considered part of the Macclesfield Bank, then recent developments show that the Philippines, having lodged its territorial claim over the reef, has also in effect made a claim over the Macclesfield Bank. The Paracel Islands are under the control of China, though contested by the Vietnamese. Because of the firm control by the Chinese, the political situation around the Paracels is relatively calm and stable in comparison with that around the Spratly Islands. The dispute over the Spratly Islands is the most complicated since it has been ongoing for a long time and involves as many as five states, i.e. China including Taiwan, Malaysia, Vietnam, the Philippines, and Brunei. It is unusual in the history of international relations that so many countries make claims, either in whole or in part, over the small islets of the Spratly Islands and their surrounding water areas. As many predict, if the issue of the Spratly Islands is not well handled, it could constitute a threat to the peace and security of East Asia and of the world. In China’s view, the issue of boundaries and sovereignty over areas of the South

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China Sea is one of the three main factors that might trigger military conflicts in the AsiaPacific Region.8 There are many issues involving the Spratly Islands, such as the territorial claims, historic rights, strategic considerations, military mobility, free navigation, and control of natural resources. The Chinese maritime boundary line (hereinafter referred to as “the line”) has added complexity to the issues.9 It refers to the line with nine segments off the Chinese coast on the South China Sea, as displayed in the Chinese map. It has several varied names, such as the U-shaped line,10 nine-interrupted-lines,11 the ninedashed intermittent line,12 the line of “national boundary”,13 the “dotted-line”,14 “the tongueshaped line”,15 as well as “the Chinese border”.16 These different names are somewhat confusing. People may query what the line means and what is significant about it. Does China claim all within the line as its national territory, including the islands, underwater rocks, the seabed as well as the water columns? Although there is a wealth of literature on the South China Sea and the Spratly Islands, the Chinese traditional boundary line has yet to be assessed in detail. This chapter intends to make a relatively thorough assessment of this line in a legal perspective so as to contribute to the building-up of the South China Sea legal literature and to facilitate understanding of the significance of the line by the world community. Origins and evolution of the line The line first appeared in the map in December 1914, which was compiled, according to some known sources, by Hu Jinjie, a Chinese cartographer.17 The maps published during the 1920s and 1930s followed Hu’s drawings.18 The line at that time only included the Pratas and the Paracels. It began from the Sino-Vietnamese land boundary next to the Gulf of Tonkin, extended southeastwards offshore of the Vietnamese coast, then ran eastwards to the west side of the Island of Luzon, then northeastwards along the east side of the Pratas, through the Taiwan Strait, and finally met the Chinese boundary line to the East China Sea and the Yellow Sea. The southernmost end of the demarcation was located at about 15° and 16° north latitude.19 However, no reasons were given why the line should have been drawn like this and for what purposes. The year of 1933 seems to have been an important time for the modification and emphasis of the line in Chinese maps. In July that year, France, the then protector of Vietnam, occupied nine small islands of the Spratly Islands. This action was strongly protested by China, and afterwards the line in the maps relating to the South China Sea extended further south to 7° to 9° north latitude.20 The intention behind this was clear: to indicate zclearly that the Spratly Islands belonged to China. However, the James Shoal (Zengmu Ansha) was not included. While the line at that time on most of the maps was drawn between 7° and 9° north latitude, there was at least one atlas collection, the New China’s Construction Atlas, edited by Bai Meichu and published in 1936, which included the James Shoal into the line, i.e. further extended the line to 4° north latitude. In 1935, the Committee of Examining the Water and Land Maps of the ROC published the names of 132 islets and reefs of the four South China Sea archipelagos. The publication had an annexed map which marked the James Shoal at the location of about 4° north latitude,

The Chinese traditional maritime boundary line

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112° east longitude, though there was no demarcation of the line on the map. It indicated that the then Chinese Government considered the southernmost territory of China to be at 4° north latitude.21 It is therefore clear that Bai took the Committee’s publication as the basis for the line in his compilation. It should be noted that all the atlases including the line were compiled by individuals. They may, however, constitute indirect evidence to show the official position of the Chinese Government. It was not until 1947 that the line was officially confirmed by the Chinese Government. On 1 December 1947, the Chinese Ministry of Interior renamed the islands in the South China Sea and thus formally allocated them into the administration of the Hainan Special Region.22 Meanwhile, the ministry also prepared a location map of the islands in the South China Sea, which was released for internal use. In February 1948, the Atlas of Administrative Areas of the Republic of China, in which the above map was included, was officially published. This is the first official map to include the line and it has had a substantial influence over the subsequent maps either published by the mainland or by Taiwan. It has two general characteristics: the southernmost end of the line was set at 4° north latitude including the James Shoal; and the 11-segment line was used instead of the previous continuing line. According to the then official explanation, the basis for drawing the line was that: The southernmost limit of the South China Sea territory should be at the James Shoal. This limit was followed by Chinese governmental departments, schools and publishers before the anti-Japanese war, and it was also recorded on file in the Ministry of Interior. Accordingly it should remain unchanged.23 It is unclear whether the explanation refers to the line or to the southernmost territory of China, and before the anti-Japanese war there were a few atlases that marked the line at about 4° north latitude. The notable compilation was Bai Meichu’s edition. It is thus hard to say that the southernmost limit was already consistently followed in practice. The situation remained unclear. On the other hand, the explanation did not give the reasons why the line was drawn this way. Despite all these doubts, however, the line on the map has been accepted ever since in Chinese practice. What then are the implications of the line? We may assume that there must be some reasons behind the drawing of such a line, though we have no clear official explanation. We can see from history that each extension of the line from the north to the south was a reaction to the challenges or encroachments made by foreign intruders to the Chinese claims of sovereignty and jurisdiction of the islands in the South China Sea. Originally it should not be necessary to draw such a line on the maps if there were no disputes over the ownership of the islands. The first time when the line appeared on the map was in 1914, just after the recovery of the Pratas Islands from the Japanese.24 The second extension was triggered by the French occupation of some islets of the Spratly Islands. The final extension happened when China received the Paracels and Spratlys from the defeated Japan after World War II. Since sovereignty and jurisdiction over the offshore islands were relatively weak, to draw a line on the map was just a means of consolidating China’s sovereign control over these islands.

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Since there is no official explanation for the line, commentators may explain it in their own way. Thus different views and opinions have arisen. The next section looks at evidence from China’s recent practice which may be helpful for the explanation of the line. China’s attitudes towards and practice within the line: the mainland and Taiwan Maps officially published both in the mainland and Taiwan take the same position regarding the line, since both sides have succeeded to the official map published in 1947. In addition, the Chinese of both sides have military and economic activities within the line. There are also a number of relevant laws and official documents that have legal implications for the line. After the Chinese Communist Party took over the mainland in 1949 and established the PRC, the map of the South China Sea was the same as before 1949. During the 1960s, there were a few small modifications: the two segments in the Gulf of Tonkin were removed from the map and the line then had nine segments. Beijing did not give a public explanation of why the two segments were removed from the map, but it might have been related to the transfer of the sovereignty over the Bai Long Wei Island in the Gulf of Tonkin from China to Vietnam. In 1958, China promulgated the Declaration on China’s Territorial Sea, in which China declared that the Dongsha Islands, the Xisha Islands, the Zhongsha Islands, and the Nansha Islands all belonged to China.25 Although the Declaration did not mention the line in the South China Sea, it had some implications for the line. First, the Declaration says that between the mainland and its coastal islands and the archipelagos in the South China Sea, there exist certain areas of the high seas. Second, it provides that the method measuring the Chinese territorial sea of 12nm by straight baselines for the mainland and its coastal islands is also applicable to the archipelagos in the South China Sea.26 The above principles are reaffirmed in China’s Law on the Territorial Sea and the Contiguous Zone promulgated in 1992.27 In May 1996 China publicized part of its baselines along the mainland coast and the Paracel Islands by the method of straight baselines. China decided 28 basepoints to encircle the Paracels and the surrounding waters.28 The waters within the baselines are internal waters and from the baselines outward there is also a belt of territorial sea of 12 nm. In the same statement, it is declared that China will decide other baselines in due time, including the baselines for the Spratly Islands. Since ancient times, China has been active within the line, mainly fishery operations carried out by Chinese fishermen. While fishery activities do not sufficiently explain the Chinese stance to the line, a lease of an oil exploratory block in the South China Sea to a foreign oil company may have significance for the line. In May 1992, Beijing let a concession to the Crestone Energy Corporation for the exploration of oil in a 7,347 nm2 area between the Vanguard Bank (Wan’an Tan) and the Prince of Wales Bank (Guangya Tan), 160nm to Vietnam’s coast.29 Since China did not declare its EEZ at that time, some scholars assume that this Crestone concession may be a reflection of China’s view that it has sovereign authority over the waters and resources within its “nine-interrupted-lines”

The Chinese traditional maritime boundary line

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historic claim.30 The argument may have a basis as the block is situated around a permanently submerged bank which is difficult to claim individually unless it can be proven to be within the historic water or within an EEZ which could be generated from the Spratly Islands according to the LOS Convention. However, Beijing has always kept silent on the line. No official explanation was ever given. When Vietnam lodged a protest against China’s concession, the reason given by the spokesman from the Chinese Foreign Ministry was that China had “indisputable sovereignty” over the Nansha and Xisha Islands and the contiguous waters so that “the exploitation by China’s oil company is irreproachable”.31 There was no mention of the line. On the other hand, China protested against the Vietnamese concession to foreign oil companies near the Vanguard Bank. On 17 April 1996, a spokesman from the Chinese Foreign Ministry stated that Vietnam’s grant of rights to foreign petroleum companies for oil exploration in the sea area of the Nansha Islands was “illegal and invalid” and “an encroachment on China’s sovereignty and its maritime rights and interests”. The entire area covered by the Vietnamese contract falls within the Wan’an Tan Bei-21 block licensed by Beijing to Crestone Energy Corporation.32 There is no indication in the statement of any rights based upon the line. For these reasons, the above-mentioned legislative activities and economic activities are the only indirect evidence to indicate Beijing’s attitude towards the line. In comparison with the position of the mainland, Taiwan seems more assertive and more unequivocal over the line. Since 1990, Taipei has given the South China Sea issue quite high priority in the post-Cold War era. In that year the Executive Yuan approved putting the Pratas (Tungsha) and Itu Aba (Taiping) islands under the temporary jurisdiction of the municipal government of Kaohsiung. In 1992 an interministerial South China Sea Task Force was established to review and revise Taiwan’s South China Sea policy. In 1993 the Taiwan Government adopted new South China Sea Policy Guidelines.33 Taipei regards the entire area within the U-shaped line as its historic waters, as is expressed in the Guidelines 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”.34 As explained by the Chairman of the Research, Development and Evaluation Commission of the Executive Yuan, the claim of historic waters was based upon the line on the map published in 1948.35 However, there are a number of different opinions in Taiwan regarding the question of whether the area within the line is the historic waters of China, an issue which is discussed in Chapter 10. As for actual activities, Taiwan remains more passive than the mainland except for the stationing of the Taiping Island in the Spratlys. However, Taiwan’s position regarding the line may have retreated from its original position. In its draft Territorial Sea Law, the water areas in the South China Sea were regarded as “historic waters”, but on the second reading in the Legislative Yuan, such wording was dropped.36 The adopted Law on the Territorial Sea does not mention historic waters at all, though it is officially stated that dropping such a reference is not an abandonment of the official position of Taiwan that the water areas within the line are historic waters of China.37

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Reaction from interested states in the South China Sea It is clear that the claimant states around the South China Sea do not recognize the validity of the line in international law, though reactions vary from time to time and from one country to another. The position of Vietnam on the Chinese claim over the South China Sea is changeable. It recognized the Chinese sovereign rights in the South China Sea by its own maps before the 1970s. Vietnam recognized Chinese territorial sovereignty over the Paracel Islands and Spratly Islands as early as 1956. The world atlas published by the Vietnamese People’s Army in 1960 marked the Paracels and Spratlys as belonging to China and its official world atlas published in 1972 has the same marks.38 However, after its unification in 1975, Vietnam began to make claims over the Paracel Islands and the Spratly Islands. Here two points must be made. First, before unification, the then South Vietnam had a territorial claim over the Paracels and the Spratlys.39 Second, the maps published in Vietnam, though recognizing the Chinese sovereignty, did not mark the line. Thus even from these maps, we could not clarify the Vietnamese position on the line at that time. In May 1992 when China concluded a concession deal with Crestone, Vietnam immediately responded and protested against China’s violation of its sovereignty.40 According to one Vietnamese official, the line was exaggerated and legally groundless. “There is nothing in the international law of the sea that can justify this kind of claim.” “The fact that other countries have carried on their activities in the Bien Dong Sea [South China Sea], the use of the sea and legislative provisions, have disproved neglecting completely the existence of such a line.”41 Indonesia has expressed its concern several times over the publication of Chinese maps showing unclear maritime boundaries between the Natuna and the Spratly Islands.42 Indonesia was satisfied with China’s position that there was no dispute between China and Indonesia regarding the Natuna Islands. In the personal view of Hasjim Djalal, an Indonesian senior diplomat, the line indicates that “the Chinese territorial claims are limited towards the islands and all rights related thereto, and not territorial claims over the South China Sea as a whole”.43 Malaysia expressed no official stance regarding the line. However, according to Hamzah, the then Director-General of the Maritime Institute of Malaysia, the line as a claim over the entire South China Sea should be regarded as “frivolous, unreasonable and illogical” as it has no basis in law or history. The parties concerned should “drop area claims and focus instead on their claim to islands and non-islands”. He dismissed the idea that the water areas within the line are historic waters by saying that “[b]y no stretch of imagination can the South China Sea be considered by any nations as its internal waters or historic lake as a basis to assert claim”.44 Thus in the views of the above countries, the line is not recognized as established in international law for a territorial claim (see Table 3.1). It is worth mentioning that some of the atlases published in other countries also confirm the line one way or the other. According to Heinzig, the following publications mark the line:

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1 Atlas mira (Moscow, 1954), Chart No. 141 (no boundary lines are drawn, but the Spratlys, the Paracels and the Macclesfield Bank are referred to as Chinese); 2 the Ceskoslovensky Vojensky Atlas (Prague, 1965), Chart No. 180 (the boundary in the southwestern part of the South China Sea follows Beijing’s model), Chart No. 182 (no boundary lines are drawn, but the Paracels, the Spratlys and the Macclesfield Bank follow Beijing’s model), and Chart No. 159 (as Chart No. 182); 3 the Haack Weltatlas (Gotha/Leipzig, 1972), Chart No. 128 (the boundary resembles Beijing’s model); and 4 the Bol’shaya Sovetskaya Entsiklopediya (2nd ed., Moscow, 1953), Chart following p. 168 (the Spratlys are shown as Chinese territory by name and boundary line; the Pratas are shown as Chinese).45 However, it should be noted that all these maps were published by the then communist countries, and they based themselves on the original maps published by China. As Choonho Park once rightly put it, such materials cannot reach beyond information originating from the countries to which they refer.46

Table 3.1 Foreign legislation and proclamations affecting the Chinese traditional maritime line in the South China Seaa Brunei Malaysia

Philippines

Vietnam

(1) Territorial Sea and Fishery Limits Act, January 1982; and (2) Declaration on the Exclusive Economic Zone, 21 July 1993 (1) Continental Shelf Act, 1966, Act No. 57, 28 July 1966, as amended by Act No. 83 of 1972; (2) Proclamation of the Exclusive Economic Zone, 25 April 1980; and (3) Exclusive Economic Zone Act 1984, Act No. 311. (1) The Petroleum Act of 1949; (2) Republic Act No. 3046, as amended by Republic Act No. 5446, 17 June 1961; (3) Presidential Proclamation No. 370, 20 March 1968; (4) Presidential Decree No. 1599, 11 June 1978 establishing an Exclusive Economic Zone and for Other Purposes; (5) Constitution of the Republic, 12 July 1979; and (6) Presidential Decree No. 1596, 1979, Declaring Certain Areas Part of the Philippine Territory and Providing for Their Government and Administration (Kalayaan Island Group) (1) Decree No. 4762-CP, 21 December 1933; (2) Decision No. 420-BNV/HCDP/26, 6 September 1973; (3) Statement on the Territorial Sea, the Contiguous Zone, the Exclusive Economic Zone, and the Continental Shelf of Vietnam, 12 May 1977; and (4) Resolution adopted by the National Assembly (7th Legislature) of the Socialist Republic of Vietnam, 28

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December 1982 Source: mainly adapted from Daniel J.Dzurek, The Spratly Islands Dispute: Who’s on First?” Maritime Briefing, Vol. 2(1), 1996, 59–61. Note a Some relevant Indonesian laws or proclamations regarding EEZ and/or continental shelf may also affect the Chinese line. The Indonesian continental shelf claim northeast to the Natuna Islands overlaps the southeastern part of the extensive Chinese claim (Daniel J. Dzurek, “Boundary and Resources Disputes in the South China Sea”, Ocean Yearbook, Vol. 5, 1985, p. 277). According to the Chinese official statement, there is no territorial dispute with Indonesia in the South China Sea, but the delimitation of maritime boundaries between the Spratly Islands and the Indonesian maritime areas still remains to be settled.

Application of the LOS Convention There are, in general, three new concepts that may have some relevance to the line. One is that of the EEZ; another the continental shelf; and the third is the concept of archipelagic waters. The concept of the EEZ was first advocated by the Latin American countries in the 1950s and gradually accepted by the entire world community. It is now reflected in the LOS Convention. According to Article 55 of the Convention, each coastal state is entitled to have an EEZ of 200 nm measured from coastal baselines. China declared its EEZ in 1996 upon its ratification of the LOS Convention, and enacted its Law on the EEZ and the Continental Shelf in 1998.47 The above declaration and the Law are also applicable to the islands in the South China Sea. Accordingly therefore, the islands in the South China Sea could generate 200 nm of EEZ from their baselines if such measurement could be justified under the LOS Convention. The LOS Convention contains a provision on rocky islands, which prevents them from having their own EEZ when they cannot sustain human habitation or economic life of their own.48 It is doubtful whether all the islands in the South China Sea could have their own EEZ. The Chinese practice in this respect shows an opposite trend. It seems that if the Spratly Islands were fully under Chinese control, China would allow this group of islands to have their own EEZ from straight baselines, though the particular demarcation is yet to be clarified.49 The supporting evidence is the baselines for the Paracel Islands. From these publicized baselines, China will measure the corresponding EEZ for the Paracel Islands. Once the EEZ problem could be settled for the South China Sea islands, then the significance of the line would be greatly reduced. Otherwise, the line would be the legal basis for China to defend its claims in the South China Sea. In terms of the EEZ, a delimitation of maritime boundary between the countries concerned is necessary. Recently, Chile, with the support of a number of countries, put forward the concept of the presential sea.50 According to this view, a coastal state has the right to extend its rights to the high seas adjacent to its EEZ in order to protect the natural resources there. The implication here is that if all the islands in the South China Sea could generate their respective EEZ, then there would be no high seas left at all. If not, there might be a

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certain area of high seas. It is not known whether a claimant like China would adopt the presential sea concept to ensure its maritime claims in the South China Sea by using the line as a basis when China finds that it is impossible to extend its EEZ from the Spratly Islands to its satisfaction. Archipelagic waters refer to the waters enclosed in the straight archipelagic baselines drawn by an archipelagic state, which is constituted wholly by one or more archipelagos and may include other islands.51 It is clear in the LOS Convention that only the archipelagic states, such as Indonesia and the Philippines, have the right to establish archipelagic waters. Continental states have no such right. Nevertheless, in state practice, a number of continental states have applied the concept of archipelagic waters to their mid-ocean islands and/or archipelagos, such as Denmark, Ecuador, and Norway,52 though they did not declare that the waters enclosed in the straight baselines were archipelagic waters. It seems that China agrees with the latter three continental states. As early as 1973 China stated, in a working paper submitted to the United Nations Seabed Committee, that “an archipelago or an island chain consisting of islands close to each other may be taken as an integral whole in defining the limits of the territorial sea around it”.53 In practice, China used the method similar to archipelagic straight baselines to measure the territorial sea of the Paracel Islands in 1996. By so doing, the waters inside the baselines are the internal waters of China. This enclosure, however, was opposed by Vietnam and the Philippines. The Philippines, on 17 May 1996, stated that they were “gravely concerned” over China’s proclamation of baselines around the Paracels as well as the baselines for the sea adjacent to China’s mainland. Vietnam, apart from asserting its own claim over the Paracels, underscored that the drawing of baselines as established by China was not in conformity with Articles 7 and 38 of the LOS Convention.54 It must be pointed out that though China used archipelagic straight baselines, the waters inside could have the legal status of internal waters instead of archipelagic waters. That is to say that foreign vessels or aircraft are unable to enjoy the right of free navigation or overflight as they do within or over archipelagic waters. Some Taiwanese scholars may argue that, judging from the historical records, the waters within the line could be analogous to archipelagic waters because in the past, foreign vessels and foreign aircraft enjoyed freedom of movement without any interruption taken by China.55 Another concept embodied in the LOS Convention which has implications for the South China Sea in general and for the Spratlys in particular is the concept of the continental shelf. According to the LOS Convention, every coastal state is entitled to have its own continental shelf to a distance of 200 nm from the baselines or to the outer edge of the continental margin up to 350 nm from the baselines as the submerged natural prolongation of the land mass of the coastal state.56 As in the case of the EEZ, whether the Spratly Islands could have their continental shelves is still questionable. If they were entitled to an EEZ, they could have continental shelves as well.57 Some of the submerged shoals claimed by China within the line are located on the continental shelf of other adjacent states. For example, the North Luconia Shoals (Beikang Ansha), Friendship Shoals (Mangyi Ansha), South Luconia Shoals (Nankang Ansha), and James Shoals are located within the 200m contour line of the continental

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shelf of the Sarawak coast. Malaysia enacted legislation on the continental shelf and protested China’s claims to the above-mentioned shoals.58 The overlapping claims to the Vanguard Bank by China and Vietnam are also related to the concept of continental shelf. What is significant for the line is the depth criterion provided for in the Convention on the Continental Shelf in 1958.59 The line is regularly along the 200-metre isobath of the geological structure in the South China Sea.60 This was a general standard to define the outer limit of the continental shelf before the LOS Convention came into being. One may argue that the line in the South China Sea was historically intended to define the continental shelves of the inside islands, particularly for those submerged under the water. In addition, it should be recalled that on 28 September 1945 the American president, Truman, issued a declaration on the continental shelf, which resulted in the subsequent formation of the legal regime on the continental shelf for the world community. Thus, the line along the 200-metre isobath may be the result of the Truman Proclamation.61 Finally, it must be pointed out that the LOS Convention is the current maritime constitution for marine affairs throughout the entire world community. It governs various marine activities and maritime national jurisdiction. All the coastal states to the South China Sea have ratified this Convention and have bound themselves to the legal obligations therein (see Table 1.1). Accordingly, any maritime dispute, including the dispute over the Spratly Islands, should be resolved by peaceful means. Final analysis and conclusion From the above assessment, we can see that the line originally came into being in 1914 and later gradually expanded in a southerly direction. It was officially confirmed in 1947 after World War II. Since then the line remains unchanged on all the Chinese maps published either in the mainland or in Taiwan. Beijing has always kept silent and offered no express statement for the line. On the other hand, Taipei officially claimed that this line was a line to enclose the Chinese historic waters. Unlike Taiwan, the mainland’s practice may be viewed as ambiguous and confusing. On the one hand, it seems that the PRC does not claim everything within the line as can be seen from its diplomatic notes, relevant laws, and public statements. What China claims are the islands and their adjacent waters within the line. The most notable evidence is China’s proclamation of the straight baselines for the Paracel Islands in 1996. From these baselines China can claim an EEZ and/or a continental shelf for the Paracels. The publication of the Paracels’ baselines indicates that the PRC did not consider the traditional line the maritime boundary line in the South China Sea. Otherwise the Paracels’ baselines are redundant. On the other hand, a number of factors may give people the impression that China regards the line as its maritime boundary line. The notorious example is the concession of the Wan’an Tan Bei block to Crestone. In the opinion of Valencia, the concession was based upon China’s “historical line” claim.62 This may not be the exact case. Judging from China’s statements regarding the Wan’an Tan concession, it is clear that the right of concession is based upon the conception that the Spratly Islands have an EEZ and/or a continental shelf.

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However, one author has unofficially counted the alleged encroachments of other countries into the sea areas within the line.63 In April 1986, Liu Huaqing, the then commander of the Chinese navy said in the University of National Defense that “the sea areas which should be under our jurisdiction are more than 3 million sq km”.64 It is difficult to know where this statistic comes from. According to one source, the statistic may be based upon the following assumed calculation: in the Yellow Sea, the equidistance line should be adopted for the delimitation with the Korean Peninsular; in the East China Sea the delimitation with Japan should be the middle line of the Okinawa Trough according to the principle of natural prolongation; and in the South China Sea the Chinese jurisdictional sea areas are based upon the interrupted line in addition to the EEZ east of Taiwan.65 It is obvious that the line is fully considered in the above statistic. This again shows that China has always relied on the line and it would be difficult for China to give it up. Yet, China faces a dilemma over it. If China were to declare the line as the maritime boundary, then it would bring strong protests from other South China Sea countries. On the contrary, if China were to give up the line, then China would lose considerable rights and interests within the line. A critical point here relates to the submerged banks and atolls within the line. There are no rules in international law including the LOS Convention to allow a coastal state to claim underwater banks and rocks except for those in its continental shelf.66 In the South China Sea, China has claimed all the geologic formations, be they above water or under water. According to its Law on the Territorial Sea and the Contiguous Zone, China will apply the method of straight baselines to these submerged features, notably the Macclesfield Bank, though we do not know how China will implement this in practice. If China could find other justifications for its claims to the submerged banks and rocks, China might possibly consider giving up the line. Otherwise, the line seems to become the sole legal basis for China to maintain its claims to the said underwater formations. This is not only a legal issue, but also an issue of national consciousness because all the Chinese know that the southernmost territory of China is Zengmu Ansha (the James Shoal) which consists of submerged banks. It seems that China is prepared to claim the water areas in the South China Sea based upon its claims to the islands therein. The official position is that China has indisputable sovereignty over the Spratly Islands and their adjacent water areas. The claim to the islands is clear. What is not clear is China’s claim to the “adjacent waters”. How might China delineate these waters? As the emergence of the Chinese term of “adjacent waters” was triggered by the LOS Convention,67 the claim to the water areas should be in compliance with the conditions set forth in the Convention. Accordingly, China may claim internal waters in the Spratlys within their straight baselines and the 12nm territorial sea from these baselines, just as it has done with the Paracels, and a further EEZ and continental shelf, if possible. The tendency of the Chinese practice is to base its claim to water areas on the islands. Recently, China has given more emphasis to the development of islands because, according to China’s view, one habitable island can have 430,000 sq km of jurisdictional water areas.68 If this tendency continues into the future, and China accords itself fully with the LOS Convention, then it is possible that China would no longer have to rely so much upon the line. Although it is difficult for China to justify the status of the water areas within the line

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as historic waters, the existence of the line for more than half a century is sufficient for China to claim some historic rights arising from the line. The line can help China claim all the islands inside the line, particularly submerged banks and shoals. The line is also evidence to help China delimit the maritime boundary with other countries in the South China Sea. Thus the Chinese traditional maritime boundary line has considerable importance for the resolution of the Spratly Islands dispute as well as to the delimitation of the jurisdictional waters between China and other coastal states. Its existence certainly favors the Chinese side and the line could be regarded as a good card in the negotiation game for the Spratlys settlement. However, it does not mean that China can use this line to assert its claim for the South China Sea water areas without difficulty. Some concessions will still be necessary if China wants a peaceful and reasonable resolution of the disputes in the South China Sea.69 Both Beijing and Taipei have shared a common view of and taken a similar attitude towards the South China Sea. It seems that neither has any intention of abandoning the line. This is a positive approach for Chinese interest. However, we should bear in mind that if Taiwan became separate from China and became an independent state, then the situation in the South China Sea would be more complicated-not only with the emergence of a new state as a claimant, but also because it would bring Beijing and Taipei into conflict with each other.70 Although China has not explained the legal nature of the line, China’s concern over and interest in the South China Sea is obviously within the line. It would be naïve to think that China’s present silence regarding the line is tantamount to the tacit abandonment of the line. All the evidence shown above indicates the opposite. For the countries interested in the South China Sea and the Spratly Islands, it may be better to be aware of the line and its possible consequences before official negotiations for the dispute settlement begin. On the other hand, it is reasonable to believe that China will commit itself to a peaceful process of resolution of the Spratly dispute, through friendly consultations and negotiations in accordance with universally recognized international law, including the LOS Convention, without resorting to the threat or use of force, as China has always promised. According to the LOS Convention, the coastal states bordering a semi-enclosed sea are obliged to cooperate among themselves regarding the management of natural resources, protection of the marine environment, and the carrying out of marine scientific research. The absence of a requirement in this provision of coastal states’ obligation to cooperate with a view to resolving their territorial disputes does not prevent the states concerned from cooperating to achieve such a goal by peaceful means.

4 Dispute over the Scarborough Reef Introduction Scarborough Reef (Huangyan Island in Chinese) is located within the geographic coordinates of 15°08′ to 15°14′N and 117°44′ to 117°48′E. It is triangular-shaped with a circumference of 46km. The total area of the feature including the inner lagoon is 150 sq km. There are several rocks on the reef, the biggest of which is South Rock (Nanyan). This feature is apparently above water at high tide (1.8m high), and situated at the southeastern extremity of the reef. Near the north of South Rock there is a channel, approximately two cables wide (370m), with depths of five to six fathoms, leading into the lagoon. In addition, North Rock (Beiyan) and several other tiny above-water coral rocks are also situated on the reef. Thus Scarborough Reef is actually a large atoll including South Rock and North Rock. According to a Chinese authority on the South China Sea, the reef is also the biggest atoll in the South China Sea.1 It lies approximately 170nm east of Macclesfield Bank, and approximately 115nm off Zambales province on the western side of Luzon Island. Scarborough Reef is of special significance in the whole South China Sea issue. Nonetheless, Western literature on the South China Sea largely ignored this reef.2 Indeed, even some Chinese scholars neglect to mention Scarborough Reef in the four traditionally acknowledged groups of islands in the South China Sea.3 Commonly, Scarborough Reef has been regarded as part of the Zhongsha Islands (Zhongsha Qundao) in China, at least since 1935. This is often officially reiterated by China, with a recent example in 1997 when the reef became subject to dispute.4 Certain foreign scholars challenge the inclusion of Scarborough Reef in the Zhongsha Islands as being geographically questionable, and even incorrect.5 The problem lies in the different perceptions of the meaning of the term “Zhongsha Qundao”. If the term Zhongsha Islands is regarded merely as the English equivalent to Macclesfield Bank, then Scarborough Reef does not form part of this group. Nevertheless, in the Chinese conception, the term “Zhongsha Qundao” is not limited only to Macclesfield Bank, but includes Scarborough Reef and other shoals, such as Truro Shoal (Xianfa Ansha), Helen Shoal (Yitong Ansha), St. Esprit Shoal (Shenhu Ansha), and Dreyer Shoal (Zhongnan Ansha) as well. In addition, the term “Qundao” in Chinese can be translated into “archipelagoes” in English, thus making the geographical scope of the Zhongsha Islands even wider. As a result, care should be exercised in the use of the names of islands in the South China Sea.6 Nevertheless, it must be acknowledged that there are discrepancies in the description of the Zhongsha Islands in China: while the official written literature places Scarborough Reef under the name of the Zhongsha Islands, the label of “Zhongsha Qundao” on the Chinese official maps is placed over Macclesfield Bank and does not

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extend towards Scarborough Reef, thus causing confusion among foreign scholars. Meanwhile, it should be pointed out that the definition of Zhongsha Islands including Scarborough Reef only represents the Chinese definition, and the outside world may take a different view. In 1935 the Chinese Ministry of Interior published a list of names of islands in the South China Sea, in which Scarborough Reef was named according to its original English name, and was listed under the group definition of the Nansha Islands.7 In 1947 it was given a name Minzhu Jiao (Democracy Reef) and became part of the Zhongsha Islands.8 In 1983 the PRC renamed the reef as Huangyan Island, but the feature remained part of the Zhongsha Islands. Huangyan Island therefore becomes Scarborough Reef’s official Chinese name while Minzhu Jiao is still reserved as its second name.9 As far as the Republic of China (Taiwan) is concerned, its recently publicized baseline claim identified Scarborough Reef as part of the Zhongsha Islands.10 Around Scarborough Reef, marine living resources are abundant, and these are traditional fishing targets for Chinese fishermen as well as for Philippine fishermen. In addition, Chinese fishing vessels often sail into Scarborough Reef’s lagoon to collect, for example, shells and sea cucumbers.11 There is an international navigational waterway near Scarborough Reef. Approximately 300 ships pass in the vicinity of the reef daily.12 Japan uses this route to transport 80 percent of its petroleum from the Middle East, and therefore regards this waterway as its lifeline. Since the entry into force of the LOS Convention in 1994, the maritime areas subject to coastal state jurisdiction have greatly expanded. Consequently, the significance of islands has increased dramatically. According to the LOS Convention, an island has its own 12nm territorial sea as a minimum. If regarded as a fully-fledged island rather than a mere “rock” (Art. 121 [3]), an island can even provide its sovereign state with the basis for a claim to a 200-nm EEZ. In the case of Scarborough Reef, there is no doubt that the feature can generate its own territorial sea for its owner. It is, however, questionable whether Scarborough Reef could have the capacity to generate its own EEZ. According to the LOS Convention, rocks which cannot sustain human habitation or economic life of their own shall have no EEZ or continental shelf (Art. 121). However, the LOS Convention contains no further provisions on the exact meanings of “rocks”, “human habitation”, and “economic life of their own”, thus leading to different interpretations. Some scholars suggest that only islands that have shown the ability to sustain stable human populations of at least 50 people should be allowed to generate maritime zones.13 Under such a suggestion, Scarborough Reef clearly lacks the capability to have its own extended maritime zones including an EEZ. On the other hand, it should be realized that due to the ambiguity in the expressions of the above LOS Convention provision, people could argue that islets like Scarborough Reef may have the capability to generate their own maritime zones including an EEZ. Any conclusive argument cannot be reached for the moment. If Scarborough Reef can generate an EEZ claim, its area would be 54,000 nm2.14 However, any such claim would overlap with a Philippine claim from Luzon Island. That is one of the reasons why Scarborough Reef has become a contentious issue between China and the Philippines.

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Overlapping claims: China versus the Philippines The bilateral dispute over Scarborough Reef came to the surface in 1997 when the Filipino naval vessels prevented three Chinese boats from approaching the reef on 30 April and then hoisted the Philippine flag there. China lodged a strong protest and warned the Philippines that the incident could complicate friendly ties between the two countries.15 China has maintained a longstanding territorial claim over Scarborough Reef. As mentioned above, as early as 1935 China listed Scarborough Reef as part of the Zhongsha Islands. Since then, China’s position has remained unchanged, whether on behalf of the mainland or Taiwan-based authorities. Thus when China reaffirms its claim to the Zhongsha Islands, it naturally implies Scarborough Reef is included. The Zhongsha Islands were first mentioned as part of the PRC in 1951 when the then Foreign Minister Zhou Enlai made a statement protesting the negotiation of the San Francisco peace treaty with Japan without China’s involvement, stating that just like the entire Nansha Islands, Chungsha Islands [italics added] and Tungsha Islands, the Sisha Islands (the Paracel Islands) and Nanwei Island (Spratly Island) have always been China’s territory. Although they had been occupied by Japan for some time during the war of aggression waged by Japanese imperialism, they were all taken over by the then Chinese government following Japan’s surrender.16 In May 1956 China protested against the Philippine remarks that some of the South China Sea islands should belong to the Philippines because of their proximity to Philippine territory.17 In 1958 China promulgated its Declaration on the Territorial Sea, in which it states that The breadth of the territorial sea of the People’s Republic of China shall be twelve nautical miles. This provision applies to all territories of the People’s Republic of China, including the Chinese mainland and its coastal islands, as well as Taiwan and its surrounding islands, the Penghu Islands, the Dongsha Islands, the Xisha Islands, the Zhongsha Islands [italics added], the Nansha Islands and all other islands belonging to China which are separated from the mainland and its coastal islands by the high seas.18 The 1992 Law on the Territorial Sea and the Contiguous Zone reaffirmed China’s sovereignty over the Zhongsha Islands.19 In fact, China has claimed all the islands, reefs, and shoals within its 1947 unilaterally drawn U-shaped line in the South China Sea as its territory. Scarborough Reef lies within this line. For administrative purposes, China places the South China Sea islands including Scarborough Reef under the administration of Hainan Province. It is, however, reported that it was not until the 1970s that China sent its first scientific expedition to Scarborough Reef.20 In comparison with China’s claim, the claim made by the Philippines is rather new. This was acknowledged by the Philippine Foreign Affairs Secretary Domingo Siazon

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when he delivered a statement on Scarborough Reef in a public hearing of the Senate Foreign Relations and Defense Committees on 5 June 1997, saying that “Scarborough Shoal is a new issue on overlapping claims between the Philippines and China”.21 Historically, the Philippines had no territorial claim to Scarborough Reef. Even in a 1978 map which was published by the Philippine National Mapping and Resource Information Authority, Scarborough Reef was not marked as Philippine territory.22 Thus Scarborough Reef is a recently developed subject of dispute in Sino-Philippine relations since 1997. The dispute has added some new dimensions to the already existing overlapping claims to the Spratly Islands made by both China and the Philippines in political, legal, and strategic aspects. The Philippine claim was expressly made in 1997 by the following statement of its Foreign Affairs Secretary: “we maintain that the Scarborough Shoal is part of our territory” because Article 1 of the Philippine Constitution states that the national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all the other territories over which the Philippines has sovereignty and jurisdiction. It is further stated that The Philippines has exercised sovereignty and effective jurisdiction over Scarborough Shoal as well as over waters surrounding the shoal. Filipino fishermen have used the area as their traditional fishing ground and as sanctuary during bad weather. It has been the subject of oceanographic, reef structure and other marine scientific studies by the Philippines through the University of Philippines and the Department of Environment and Natural Resources. Scarborough Shoal was used for a long period of time as an impact range by defense authorities. The Philippines had also operated a lighthouse on Scarborough Shoal [sic]. Philippine laws on smuggling and illegal fishing have been enforced in the area for a long time. Finally, it was noted that “Scarborough Shoal has been subject to the laws and policies of the Philippine government, which were never contested by other parties in the past.”23 There are a number of questions resulting from the above statement, which will be dealt with below. Here it is simply pointed out that the last point of the statement is clearly incorrect because China claimed Scarborough Reef much earlier than the Philippines. When the Philippines began to make a similar claim thereto, then it would be fair to say that the Chinese claim has been contested by the Philippines rather the Philippines’ by the Chinese. Who’s on first? The Philippines made its claim over part of the Spratly Islands as early as the 1970s when it occupied seven islands and designated them as the Kalayaan (Freedomland).24 The reason given to support the Philippine claim was that the Spratly islands were terra nullius. The Philippine government further asserted that the Kalayaan Islands were not part of the Spratly Islands because: (1) the Kalayaan group is some distance from the Spratlys; (2) the largest island is larger than Spratly Island and it is commonly accepted

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practice to name an island group after its largest island; and (3) by definition, the Philippines make no claim to the Spratly or Paracel Islands.25 The Kalayaan area has its own peculiarities. According to the Philippine Presidential Decree No. 1596 it represents a claim to sovereignty including not only the islands but also the waters, the seabed as well as the airspace within the defined area. Its validity is questionable in international law, just like the alleged Chinese claim to the entire South China Sea based upon the U-shaped line. No matter what it is, Scarborough Reef is north of the Spratly Islands and lies 348 km beyond the Kalayaan area. That is to say, the Philippine claim in the South China Sea did not include Scarborough Reef and its surrounding area before 1997. The Philippines claims as territorial waters those seas bounded by its archipelagic baselines and the limits described in the treaties between Spain and the United States ratified in 1898 and 1901 and the Convention ratified by the United Kingdom and the United States in 1933. This means that its territorial waters vary in width from 1 nm in the Sulu Sea between Pearl Bank and Babuan Island to 285 nm northeast of Amianan Island, the most northerly point of the Philippine territory.26 However, Scarborough Reef was not within the outer limits described by the above treaties. The reef is located 13.5 nm west (outside) of the 1898/1933 Treaty Limits. In practice, the Philippines has usually used exact geographic coordinates to define their territories, which can be seen from its claim to the Kalayaan as well as its metropolitan territory. It is clear that Scarborough Reef is not within the areas defined by these coordinates. The Philippines established its EEZ up to 200 nm from the baselines from which the territorial sea is measured by the Presidential Decree No. 1599 in June 1978.27 Accordingly, Scarborough Reef may lie within that 200 nm distance. Therefore one of the Philippine arguments to justify its claim to Scarborough Reef is that this reef is located within the Philippine EEZ. It is recalled that during the tension from Mischief Reef in 1995, the Philippine authorities frequently accused China’s occupation of Mischief Reef as a grave violation of the Philippine sovereignty over its EEZ.28 As Dzurek correctly points out, The Philippines’ unilateral EEZ claim ignores any potential EEZ radiating from the Spratlys themselves. Maritime jurisdiction flows from sovereignty over land territory, not the reverse. If the Philippines is not sovereign of the Spratly Islands, then Mischief Reef would probably fall outside Manila’s EEZ jurisdiction. The Philippine claim of violation to its EEZ may be an effort to muddy the juridical water and gain international support for its weak sovereignty claim.29 The same reason can well be applied to the Scarborough Reef case. It is worth mentioning that in 1997 the Philippine judge dismissed charges of illegal entry into the Philippine territory against 21 Chinese fishermen apprehended by the Philippine navy near Scarborough Reef finding that “there can be no legal basis as yet for the conclusion that the accused… entered Philippine territory illegally” as it has not yet been established that the area “exclusively belongs to the exclusive economic zone of the Philippines” based upon the 1978 Presidential Decree.30

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The Philippines has also used the concept of contiguity to justify its claim. Comparatively speaking, Scarborough Reef is closer to the Philippines than to China, though it is still about 116nm from Luzon. However, the concept of acquiring a territorial title by means of geographical continuity has been discarded in recent times.31 As is pointed out, continuity is a pretext for attempts to preempt the sovereignty of a certain area which the state concerned is not yet in a position to acquire by effective occupation. Therefore, inasmuch as the territorial claims are based on notions of “proximity” or “contiguity”, they have no validity in law.32 Turning to the legal concept of “prescription” as it applies to the case of Scarborough Reef, it may be argued that even if China originally owned the reef, Manila could obtain sovereignty over it if it exercised peaceful, unopposed, and continuous governance over the reef.33 Nevertheless, the applicability of the “prescription” concept is problematic because: (1) this concept is controversial in contemporary international law and state practice, and international judicial bodies are reluctant to expressly recognize prescription;34 (2) China never relinquished its claim; and (3) so far the Philippines has not made an actual, much less continuous, occupation of the reef. In 1992, Jorge Coquia, a legal adviser to the Philippine government stated that “the Philippines has no intention or interest in any area in the South China Sea outside the limits set forth in P.D. No. 1596”.35 That statement indicates that the Philippine claim over the South China Sea is limited to the Kalayaan area. Nevertheless, its claim to Scarborough Reef is a new one and relates to an area beyond the Kalayaan. It is therefore inconsistent with what the Philippines had expressed before. Thus unless the Philippines could justify that their claim to Scarborough Reef was an old one, already existing before the claim of the Kalayaan, its claim is probably not tenable. It seems impossible that China will give up its claim to Scarborough Reef. There are at least two reasons accounting for this. First, this is the only above-water natural feature in its claimed Zhongsha Islands. China therefore perceives the reef to be vital to a claim to the entire Zhongsha Islands including Macclesfield Bank. Macclesfield Bank and other surrounding shoals are permanently submerged under the water and not permitted to be claimed in international law, including the LOS Convention. Nevertheless, as is pointed out by a Chinese scholar, this reef is believed to be critical for the Zhongsha Islands with its loss or gain thought to determine the loss or gain of the whole Zhongsha Islands.36 Second, the Chinese claim to Scarborough Reef is superior to that of the Philippines, at least from historical and comparative perspectives. This makes China persevere with its own position and be unlikely to compromise easily. As a Chinese Foreign Ministry spokesman reiterated, “Huangyan Island in the South China Sea has been an inherent part of Chinese territory since ancient times and the Chinese government maintained a consistent position on related issues”.37 Seeking a peaceful solution No matter what the case might be, it is well acknowledged that the claims to Scarborough Reef, made either by China or the Philippines, are not perfect and subject to challenge, despite the fact that China’s is superior to the Philippines’. China’s superiority does not

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mean that China is able to possess the ownership of the reef without question. Reality shows that China’s claim has been challenged by the Philippine side and a bilateral dispute has formed. Such a dispute contains two aspects: one is relating to the sovereignty issue over Scarborough Reef, i.e. who owns that reef? The other is the maritime boundary dispute resulting from the reef. However, if sovereignty over the reef is granted to the Philippines, then potentially there should be a little overlapping maritime area between China and the Philippines. In any case, unless one side has recognized the validity of the other’s claim, the dispute exists and will continue to exist. There are some general international rules to help states solve their disputes. The United Nations Charter obligates UN member states to resolve their territorial disputes by peaceful means, which include, inter alia, negotiation, investigation, mediation, conciliation, arbitration, judicial settlement, and use of regional organs and means.38 The LOS Convention also has similar provisions on treaty obligations to settle any maritime dispute by peaceful means.39 Thus it is universally accepted that peaceful settlement of international disputes is one of the fundamental principles in international law. Since China and the Philippines are both UN members as well as signatories of the LOS Convention, they are obliged to resolve any dispute between them in a peaceful way. In fact, both China and the Philippines have pledged to solve their disputes in the South China Sea by peaceful means. In 1995 after the Mischief Reef incident, the two countries signed a code of conduct in which they promised to settle their bilateral disputes in accordance with the recognized principles of international law, including the LOS Convention. They also agreed that their bilateral territorial disputes in the South China Sea should not affect the normal development of their relations.40 In 1998, the two sides issued a joint communiqué in which the foreign ministers of China and the Philippines “reaffirmed their commitment that the relevant disputes be settled peacefully in accordance with the established principles of international law, including the United Nations Convention on the Law of the Sea”.41 The two sides agreed to form a joint expert working group on confidence-building measures and a legal group to study their respective claims to Mischief Reef .42 Settlement by judicial means would be the most efficient and permanent way to solve the dispute over Scarborough Reef. However, it is unlikely that both China and the Philippines would submit their dispute to the competent international judicial organ or arbitral tribunals in the foreseeable future. In spite of calls for judicial settlement from various circles,43 it seems that the parties prefer bilateral negotiations towards the settlement of the dispute.44 The concept of joint development may be worth considering, at least as an interim measure to settle the Sino-Philippine dispute over Scarborough Reef. Not long ago, China was described as “the most reluctant to commit itself to joint development, and clearly presents the greatest obstacle to a cooperative solution”.45 However, things have changed since 1995 and China has shown its willingness to cooperate through joint development. When Wu Bangguo, Chairman of the National People’s Congress, visited the Philippines in August 2003, he proposed to his Philippine counterpart to jointly develop petroleum in the South China Sea.46 On 11 November 2003, the China National Offshore Oil Company and the Philippine National Oil Company agreed to jointly explore oil and gas in the South China Sea through the signing of a letter of intent between the two sides. A

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joint committee will be set up to help select exploration areas in the South China Sea. They also agreed to establish a program to “review, assess and evaluate relevant geographical, geophysical and other technical data available to determine the oil and gas potential in the area”.47 It is definitely a positive step. In the spirit of cooperation, a possible alternative modus vivendi would be the establishment of a joint maritime zone around Scarborough Reef for the purpose of resource management and environmental protection between China and the Philippines. Since Scarborough Reef does not necessarily qualify as a fully-fledged island and therefore generate its own EEZ and/or continental shelf, the two countries may declare an area of 12 or even 24 nm in breadth around Scarborough Reef as a joint maritime zone. An existing precedent is the joint fishery conservation zone around the disputed Falkland/Malvinas Islands created by Argentina and the United Kingdom.48 A certain joint mechanism should be helpful for the settlement of the dispute over Scarborough Reef, no matter what form that mechanism would take. China once proposed to the Philippines that the facilities in Mischief Reef could be jointly used both by the Chinese and Filipino fishermen.49 China’s offer is helpful for the resolution of the Scarborough Reef dispute. In many island territorial disputes, the value of the land is less than the maritime zone that could be claimed from that land under the LOS Convention.50 Thus the crux in the dispute over Scarborough Reef is not only the reef itself, but also more importantly the maritime zones around it and the resources therein. Second, Scarborough Reef has the potential to affect the future delimitation of maritime boundaries of the EEZs and continental shelves between China and the Philippines in the South China Sea. In such a context, it is most likely that the Philippines will argue that the reef is not entitled to generate an EEZ claim, whereas China would favor a maximum extent of water area generating from the reef. The preservation of the status quo would favor the Philippines because of its proximity to Scarborough Reef. As is recommended by an Australian scholar, “the Philippines has built a lighthouse on the Reef [sic] but it would be much safer to ensure that it is permanently occupied”.51 It is not clear whether the Philippines would take action to fully occupy the reef. If that were to happen, it would definitely invite strong repercussions from China. Tension would then be likely to escalate to an unpredictable stage. Both sides certainly would not like to see such a negative event occurring in their bilateral relations. In conclusion, it can be seen that both China and the Philippines have promised to settle their territorial disputes in the South China Sea by peaceful means. This is positive and helpful for building up good relations between the two countries. On the other hand, however, it must be realized that there are uncertainties over the Scarborough Reef dispute. If the two sides keep their promises and pave the way for regional peace and security, the contested reef could turn into an area of cooperation. If the two sides are inclined to seek their unilateral interests, disregarding the need for cooperation, then the reef could be a potential threat to peace and security in the South China Sea.

5 Maritime boundary delimitation in the Gulf of Tonkin Background The Gulf of Tonkin (Beibu Gulf in Chinese and Bac Bo Gulf in Vietnamese)1 is a shared water area between China and Vietnam. It has an area of 44,238 sq km (about 24,000 sq nm). The gulf has an average depth of 38 m and the maximum depth is no more than 90m. The topography of the seabed is smooth.2 Geographically, it is categorized as a semi-enclosed gulf because it is embraced by the northern part of Vietnam, China’s Guangxi Province, the Leizhou Peninsula, and Hainan Island. The gulf measures 170nm at its widest and has two outlets: the Qiongzhou Strait between Hainan Island and the Leizhou Peninsula, approximately 19nm in width; and the major passage to the south, 125 nm wide at its narrowest point.3 Although peacefully used by the people of the two countries for centuries, the Gulf itself has brought up a number of issues in the political, legal, and economic spheres. The occurrences of disputes are not unusual for the two nations in the past and at present. After the adoption of the United Nations Convention on the Law of the Sea (the LOS Convention) in 1982, some of the disputes had become more intensive and complicated because either of the two countries has the right under the Convention to extend its jurisdictional waters, leading to overlapping claims in the Gulf of Tonkin. Under the present political and economic circumstances, the control of the sea areas is mainly for the control of the natural resources, particularly after the establishment of the exclusive economic zone (EEZ) of up to 200 nm under the LOS Convention. Natural resources are rich in the Gulf of Tonkin. The fishing ground in the Gulf of Tonkin is one of the main fishing grounds in China, and also one of the principal fishing grounds for Vietnam. There are also plentiful mineral resources, especially oil and gas. The thick Leizhou sedimentary basin that underlies the gulf is an obvious target for oil exploration.4 According to the prediction of the China National Offshore Petroleum Company, the Gulf area is one of the biggest oil and gas concentrations in the world, having an oil deposit of about 2.29 billion tons and natural gas deposits of about 1,444 billion cubic m.5 It is reported that the South China Sea Offshore Oil Company pumped 14.2 million tons of crude oil in 1997, up nearly 10 percent to rank first among China’s offshore oil producers.6 In addition, the gulf is an important sea route of communication for Vietnam and China.7 These economic factors are influential for the delimitation of the SinoVietnamese maritime boundary in the Gulf of Tonkin. There are established norms governing international relations in general, and governing the Sino-Vietnamese bilateral relations in particular. Although the boundary issue on the Gulf of Tonkin is multifaceted, the focus of this chapter is confined to the field of

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international law, particularly the law of the sea and international norms of territorial sovereignty. In addition, the respective domestic laws of either China or Vietnam which have impact upon the Gulf of Tonkin will be examined. The Gulf of Tonkin boundary was one of the three main unresolved boundary issues between China and Vietnam. For this reason, the settlement of the land boundary between China and Vietnam is a relevant issue. Furthermore, viewing it broadly, the issue of the Gulf of Tonkin constitutes a part of the whole South China Sea question. The Sino-Vietnamese border was basically demarcated by the Sino-French Treaty of 1887 as a result of the Sino-French War of 1884–85 and finalized in 1895. The relevant version of the Sino-French Treaty of 26 June 1887 contains the following provision: “The islands which are east of the Paris meridian of 105°43′ east [108°3′ east of Greenwich], that is to say the north-south line passing through the eastern point of Tcha’s Kou or Quan-Chan [Tra Co], which forms the boundary, are also allocated to China. The island of Gotho [Kao Tao] and other islands west of this meridian belong to Annam.”8 Since the arrangements made under the treaty, the border situation had been relatively calm and there existed a traditional customary line of jurisdiction along the border areas of the two countries. However, the boundary, including the area of the Gulf of Tonkin, has never been accurately demarcated. The unclear situation of boundaries caused problems when the two countries had tensions and/or conflicts. Thus, for the sake of permanent peace and stability, the two sides have reached a consensus that a clear delimitation of the boundaries between the two is necessary. The negotiation on the delimitation of the maritime boundary in the Gulf of Tonkin was actually initiated by Vietnam. In late December 1973, Vietnam informed China of its intention to prospect for oil in the Gulf and proposed to launch official negotiations between the two sides to delineate the maritime boundary.9 It should be pointed out that the Gulf of Tonkin was the first proposed topic among the three major border issues between China and Vietnam, which clearly signified its central importance for the whole territorial dispute of the two countries.10 The relevant negotiations first began in Beijing in August 1974, but they brought no result and broke down even prior to the SinoVietnamese armed conflict in 1979. The two sides did not resume negotiations until 1993 when they attempted to solve the issue again. The tenth round of negotiations, held between 24 and 30 March 1998, like all the previous talks, ended without any concrete results.11 The only significant progress was made in 1993, when the general agreement on the basic principles for settling the disputes relating to the land border and to delimitation of the Gulf of Tonkin was adopted by the two parties. Basic issues The critical differences between the two sides rest with their disagreement over the standards for delimiting the sea areas. Both sides put forward various arguments to support their respective negotiation positions. At the beginning of the negotiations, Vietnam took the view that the Gulf of Tonkin had already been divided by the 1887 Sino-French treaty and the line of 108˚3′13″ east longitude was the maritime boundary

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line. It further proposed to treat the whole gulf as historic waters belonging to Vietnam and China. This view was rejected by the Chinese side. According to the Chinese, the line in the said treaty was not a maritime boundary line because there was no reference in the treaty to such interpretation. Neither China nor Vietnam had ever exercised sovereignty over or jurisdiction in the gulf area beyond their territorial seas.12 On 18 January 1974, China, while agreeing to hold negotiations with Vietnam, proposed that a rectangular area in the middle of the gulf, bounded by the 18° and 20˚ parallels and the 107˚ and 108˚ meridians, be kept free from any oil exploration until the two parties reached an agreement on the boundary delimitation. China further put forward that [e]ach side shall respect the other side’s sovereignty over its 12 nm territorial sea, and the two sides shall demarcate their respective economic zones and continental shelves in the Beibu Gulf and other sea area in a fair and reasonable way in accordance with the relevant principles of present-day international law of the sea.13 The above differences indicate that there are several intermingled legal issues to be resolved, including inter alia, (1) whether the maritime boundary in the Gulf of Tonkin was already decided under the 1887 Treaty, (2) if not, whether the waters in the Gulf of Tonkin are historic waters, and (3) if not, how to delimit the respective jurisdictional areas for China and Vietnam. The 1887 Treaty and subsequent documents were made in both Chinese and French. However, there are different expressions in the two official texts. To try to make a clearer explanation, Pao-min Chang offered two English translations, one from the French text and the other from the Chinese text of the 1887 Sino-French Treaty. The translated Chinese version reads as follows: As far as the islands in the sea are concerned, the red line drawn by the officials of the two countries responsible for delineating the boundary shall be extended southward from the eastern hill-top of Chagushe (or Wanzhu in Chinese) and constitutes the dividing line. The islands lying east of this line shall belong to China. The islands of Jiutousan (Gotho in Vietnamese) and other small islands west of this line shall belong to Vietnam. The translation from the French version is: The islands east of the meridian 105°43′ east of the Paris meridian (i.e. the meridian 108˚03′08″east of the Greenwich meridian), that is, east of the northsouth line passing through the eastern tip of the Tch’a-kou or Ouan-chan (Traco) and forming the boundary, are all assigned to China. The Gotho islands and other islands lying west of that meridian belong to Annam.14 Due to the different texts of the Treaty, different interpretations may occur. There are some general rules in international law to govern the interpretation of a treaty. According to the law of treaties, if there is a provision in the treaty which gives the priority to one text, then this text should prevail once different interpretations occur from different

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texts.15 There was no such provision in the Sino-French treaty.16 Therefore the two versions are equally authentic. Under these circumstances, the interpretation of a treaty should be made according to the law of treaties by considering any agreement relating to the treaty, any instrument in connection with the conclusion of the treaty in addition to the text, including its preamble and annexes. Furthermore, supplementary means of interpretation may also be used, such as the preparatory work of the treaty and the circumstances of its conclusion in order to try to find the same meaning of the different expressions in each authentic text.17 Thus rationality and good faith in terms of treaty interpretation are very important, and sometimes critical. Upon careful examination of the texts of the Treaty, it is discovered that the meaning of the above Chinese version indicates that the red line drawn on the attached map was a line to divide the islands in the Gulf of Tonkin rather than a line of maritime boundary. The line, which ended at about 21°23′ north latitude on the map, involved only the land and coastal islands of the two sides. Such a line was simply a form of geographical shorthand to avoid the need to name all the islands and such technique was used widely at that time in state practice.18 Even from the French version, it is hardly asserted that the wording “forming the boundary” be a line of maritime boundary. It is actually a line equivalent to the red line mentioned in the Chinese version.19 As is revealed in history, the purpose of concluding this treaty was to demarcate the boundary between China and Vietnam according to the Sino-French Treaty of 9 June 1885. There was no mention of the Gulf of Tonkin and only part of the Gulf close to the land was shown on the attached map. Thus the representatives from both parties had no authorization and/or intention to delimit the maritime boundary in the Gulf of Tonkin.20 Moreover, at the time when the freedom of the seas prevailed, it was beyond imagination that the two countries could divide between themselves a vast gulf like the Gulf of Tonkin into two respective jurisdictional waters. The prevailing limit of the territorial sea for a coastal state at that time was out to 3 nm.21 It is impossible that China and Vietnam could have endorsed the modern concepts of the law of the sea to delimit the Gulf of Tonkin. Clearly, therefore, the 1887 Treaty did not divide the Sino-Vietnamese maritime boundary in the Gulf of Tonkin. Additionally, the Vietnamese argument that the maritime boundary was decided by the 1887 Treaty was impractical in theory. As correctly pointed out by Prescott, renowned Australian specialist in maritime boundary delimitation, Vietnam would face four serious difficulties for sustaining its arguments. First, the meridian in the Treaty has no termini. Second, if the meridian was the maritime boundary it would mean that Vietnam was not entitled to any territorial waters off the eastern tip of Tra Co. Third, if this meridian was meant to be a maritime boundary, it was so far out of character with the prevailing concepts of maritime sovereignty of the period that it would have been given special mention in the text. Fourth, there is nothing in the treaty to distinguish the use of this meridian from the use of straight lines by other colonial powers in other treaties to separate island groups.22 Perhaps the Vietnamese had realized the obstacles to their insistence on the meridian. In its own practice, Vietnam rejected a similar line, called “Brévie Line”, drawn in 1939 in the Gulf of Thailand as a line that could divide the areas of the seabed between Cambodia and Vietnam.23 Though there is no indication that Vietnam has abandoned its

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former position, the fact that Vietnam agreed to delimit the gulf clearly indicates that the delimitation issue had not been resolved under the 1887 Sino-French Treaty. In fact, as early as December 1973, the Vietnamese vice foreign minister expressed that the Bac Bo Gulf had not been delimited because of the war in Vietnam.24 However, Vietnam should not be blamed for invoking the meridian line to defend its interest in the Gulf of Tonkin. It is a political act. If its argument were accepted by China, then Vietnam could obtain two-thirds of the water area in the Gulf after delimitation. The question is whether its argument is tenable in practice and in theory. Otherwise it could easily be defeated. The meridian line mentioned in the 1887 Treaty was also once invoked by the Chinese side. As early as the 1930s, when the French authority in Vietnam occupied some islands in the South China Sea, the then Chinese Government argued that the meridian line in the 1887 Treaty showed that Vietnam had no rights to the islands east of this line.25 It is therefore understandable that Vietnam used the meridian line in the Treaty to support its own claim. The line might play a role in the delimitation of the Gulf of Tonkin as one reference of indirect evidence, which could favor the Vietnamese side. In history, the line was used several times for the convenience of exercising some jurisdictional functions for the two countries, such as criminal jurisdiction after 1887 and possession of specimens from scientific investigation in the gulf in 1961.26 These historical encounters have already been invoked by the Vietnamese side to justify its position, but the Chinese side has different interpretations.27 This is not to say that the line in the 1887 Sino-French Treaty could not become a maritime boundary line provided that both China and Vietnam have intended to use it as such. For example, the line drawn under the 1867 US-Russia Convention on the cession of Alaska was originally a line to divide the territories of the two countries. But later, in 1990, the two sides considered the scope of its application and agreed that that line, as defined in the 1867 Treaty, was the maritime boundary between the two countries, with some minor adjustments.28 In the case of the Gulf of Tonkin, the problem lies in how Vietnam could persuade China to accept the Vietnamese proposal to jointly recognize the line as a line of maritime boundary. Gulf of Tonkin as historic waters? Whether the Gulf of Tonkin is an area of historic waters is another issue brought up by the Vietnamese arguments. Generally speaking, a bay or gulf can become historic waters of a coastal state under certain conditions in international law. Though not clearly defined in international law, historic waters usually refer to “the waters over which the coastal State, contrary to the generally applicable rule in international law, clearly, effectively, continuously, and over a substantial period of time, exercises sovereign rights with the acquiescence of the community of States”.29 There are three conditions to be fulfilled to sustain an historic waters claim: (1) the exercise of the authority over the area; (2) the continuity over time of this exercise of authority; and (3) the acquiescence of foreign states to the claim.30 Thus, if a gulf meets the conditions set forth in international law, the coastal state has a right to claim it as historic waters. Usually, in the late nineteenth century and early twentieth century, since the width of the territorial sea was 3 nm, a bay

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could be enclosed as historic waters when its entrance was no more than 6nm. However, in some circumstances, such limit could be extended to more than 6nm by continued and well-established usage.31 The closing line of the Gulf of Tonkin is about 150nm, far exceeding the width limit at that time. It was impossible for France, Vietnam’s then protector, to declare the historic status of the gulf. In fact there was no such declaration even when France regarded its other bays as its historic waters, such as the Bay of Cancale with a breadth of 17nm at the entrance.32 Historic factors are of course critical in the claim of historic waters. To declare a certain bay or gulf as historic waters is the first step to consolidate a claim by a coastal state. Then the state should continuously exercise its authority over the claimed area, preventing third parties from encroaching on its claim. Vietnam declared the Gulf of Tonkin as historic waters as recently as 1982 in its Statement on the Territorial Sea Baseline of Vietnam, claiming that the part of the gulf appertaining to Vietnam constituted historic waters and should be subjected to the juridical regime of internal waters of Vietnam.33 It may be difficult for Vietnam to maintain its claim without proof of historic continuity of its authority in the Gulf of Tonkin. The general standards relating to historic waters are usually applicable for a bay or gulf owned by a single state. It is difficult for gulfs and bays claimed by more than one country to be recognized as historic waters. The legal doctrine in this respect is rather passive. Oppenheim states that “as a rule, all gulfs and bays enclosed by the land of more than one littoral State, however narrow their entrance may be, are non-territorial. They are parts of open sea, the marginal belt inside the gulfs and bays excepted.”34 Blum also shares the same view and points out that historic bays lose that character when they become multinational.35 However, a few exceptions exist in state practice. The best known example is the Gulf of Fonseca, situated in Central America. Its historic character was affirmed by the Central American Court of Justice in 1916. Spain had possessed the Gulf of Fonseca from its discovery in 1522 until 1821, and this exclusive possession continued throughout the period of the existence of the successor state, the Federal Republic of Central America. In the beginning of 1839 it was vested in three successor states of the Federal Republic: Nicaragua, Honduras, and El Salvador. The historic status of this gulf remained unchanged as the territory passed to the successor states.36 Its historic status has been reaffirmed by the International Court of Justice (ICJ) in 1992.37 This case opens up the possibility that if territorial changes occurred along the coast of an existing historic gulf, which was formerly enclosed by a single state, then the change would not affect its status as an historic gulf. The case has some relevance to the Gulf of Tonkin in that Vietnam was part of China for more than a thousand years, until 939.38 If evidence could be found that, before the separation, the Gulf of Tonkin had already become an historic gulf, then Vietnam, as a successor state, could reasonably assert its historic rights to the gulf. In general, the burden of proof of title to historic waters rests on the claiming state. If the state cannot prove its claim to the satisfaction of the necessary requirements in international law, the claim to the title should be disallowed. A relevant example from China is Bohai Bay. China declared Bohai Bay as its historic bay in its Territorial Sea Declaration in 1958, which provides that Bohai Bay constitutes part of the Chinese inland waters.39 China justified its claim by saying that Bohai Bay

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was completed inside the straight baseline of China’s territorial sea; the breadth of the largest entrance along the closing line of the bay was 22.50nm,40 less than 24 nm; and for thousands of years it has been constantly under the actual jurisdiction of China.41 Compared with Bohai Bay, the Gulf of Tonkin seems geographically unlucky, which added to other problems, has prevented it from being an historic gulf. Both China and Vietnam use straight baselines to measure their respective territorial seas. However, the gulf cannot be enclosed within their baselines. The entrance is much wider than that of Bohai Bay. The most perplexing problem for Vietnam regarding its argument on historic waters in the Gulf of Tonkin perhaps lies on the fact that China, the only other country with rights there, has refused to recognize such historic status for the gulf. It would be absurd and illogical if half of the waters in the gulf were historic and the other half were not. Thus the Gulf of Tonkin cannot be regarded as historic waters as Vietnam has claimed. If Vietnam insists on its historic waters claim based upon the 1887 line, there will be no hope for a solution of the boundary delimitation. It is clear that the waters beyond the territorial seas of the two countries in the gulf are within the definition of EEZ and the continental shelf in the LOS Convention. The Chinese practice in terms of historic waters suggests that China might not oppose the view that the Gulf of Tonkin is an historic gulf. China claimed Bohai Bay as its historic waters and also supported the Russian claim to the Peter the Great Bay as historic waters.42 What China is against is the Vietnamese position that the historic bay claim is based upon the line in the 1887 Treaty. There should be no reason why China would not agree if the gulf could be divided half-and-half between the two countries. If China could agree with Vietnam, then such agreement could reinforce the status of the gulf as historic waters. As it was expressed by the Office of the U.S. Department of State, “[t]he Vietnamese claim to historic waters is questionable because China, which also borders the Gulf of Tonkin, does not claim the gulf as historic waters and disputes the Vietnamese claim to the meridional boundary within the Gulf”.43 The concept of juridical bay may also apply to the Gulf of Tonkin because this concept is closely related to the concept of historic waters, particularly of historic bays. The concept of juridical bay is enshrined in the LOS Convention which defines a juridical bay as a bay that is a well-marked indentation whose penetration is in such proportion to the width of its mouth as to contain land-locked waters and consti-tute more than a mere curvature of the coast. An indentation shall not, however, be regarded as a bay unless its area is as large as, or larger than, that of the semi-circle whose diameter is a line drawn across the mouth of that indentation (Art. 10). In addition, such a bay should belong to a single state. It is obvious from the above stipulations that the conditions for a juridical bay are stricter than those for an historic bay. Accordingly, the Gulf of Tonkin is not a juridical bay either, because it cannot meet the conditions set forth in the LOS Convention. First, it is bordered not by a single state, but by two states. Second, the closing baseline is much wider than the required maximum of 24 nm. Finally, it is more difficult for a bay or gulf that cannot be regarded as an

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historic bay to meet the requirements for a juridical bay. Consideration for boundary delimitation As far as maritime boundary delimitation is concerned, there are a number of established rules in international law that could become the basis for the resolution of the Gulf of Tonkin issue. Since both China and Vietnam have ratified the LOS Convention, this treaty can be a basic guideline to govern the delimitation of the gulf. According to Articles 74 and 83 of the Convention, delimitation of the EEZ and the continental shelf between states with opposite or adjacent coasts should be effected by agreement on the basis of international law, as referred to in Article 38 of the ICJ Statute, in order to achieve an equitable solution.44 These provisions, however, are general and indeterminate and their implementation lies to a large extent upon state practice and international judicial decisions. As for the delimitation of territorial seas, the equidistant line is normally adopted in state practice in accordance with the LOS Convention. The principle of equidistance usually provides an equitable delimitation when two countries concerned face each other, like the case of the Gulf of Tonkin in general. This principle has been regarded as a rule in international customary law.45 A median line is a line “every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial sea of each of the two States is measured”.46 To avoid possible inequitable results from using such a method, various factors should be considered at the same time, including navigational, historical, geographical, resource locations, or other pertinent factors. The equidistance principle does not apply when there are “special” circumstances, particularly when the delimitation is affected on the basis of “historic title”.47 Since the Gulf of Tonkin cannot be regarded as historic waters, there should be no problem for such a principle to apply, subject, of course, to the agreement of the two parties concerned. In state practice, the equidistant line is frequently used for maritime boundary delimitation. The relevant examples comparable with the Gulf of Tonkin include: the Iran–Saudi Arabia maritime boundary in the Arabian/Persian Gulf; the Canada– Greenland (Denmark) maritime boundary in Baffin Bay; the Finland–Sweden maritime boundary in the Gulf of Bothnia.48 Thus the equidistance principle has been confirmed in recent state practice, which has to some extent denied a previous scholarly approach that equidistance was no longer a governing principle of international law,49 though it is not a compulsory principle. Furthermore, the pronouncements that the equidistant rule found in the 1958 Convention on the Continental Shelf had not emerged as customary international law, made by the ICJ in the North Sea Continental Shelf case in 1969, has also been greatly eroded by its subsequent judgments on the maritime boundary delimitation,50 the detailed analysis of which is beyond the scope of this chapter. It is recommended that this principle be applied as a basis for the delimitation of the Gulf of Tonkin while considering any other particular factors existing in history and in law so as to make some adjustments if necessary.51 It is recalled that in the Jan Mayen case, the ICJ used the equidistant line at first as a provisional line, then, based upon that line, the Court decided the final line for the maritime boundary between Greenland (Denmark)

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and Norway.52 As is demonstrated in maritime boundary literature, the use of an equidistant line is much more frequent than that of all the other methods of maritime boundary delimitation. It is rightly predicted that the judicial organs as well as coastal states will make further use of the equidistant line in appropriate cases as the boundary line or as one basis for analyzing the maritime boundary situation.53 The maritime boundary delimitation in the Gulf of Tonkin is concerned not only with the delimitation of both EEZs and the continental shelves, but also with the delimitation of the territorial seas. The geographical character in the gulf suggests that the delimitation either be opposite (vis-à-vis Hainan Island) or be adjacent (seaward of the SinoVietnamese land border). For the delimitation of the three different sea zones, the question arises as to whether there should be a single line for all of them or different lines for each different zone. It is also relevant to the question as to whether the equidistance principle should apply. The equidistance principle has become an established rule for the delimitation of the territorial seas according to the LOS Convention. For the delimitation of EEZs, there are few obstacles to prevent the application of the equidistance principle. The problem lies with the delimitation of the continental shelves, because different standards exist in this respect. According to some analysts, Vietnam asserted an approach of natural prolongation to claim its continental shelf in the Gulf of Tonkin. If its assertion could be established, then it would offset the equidistance principle. For China, the approach of natural prolongation was also invoked in the East China Sea against the claims of Japan. Therefore, it is argued that China’s assertion to the East China Sea continental shelf would put itself in a disadvantageous position in the case of the Gulf of Tonkin because the natural prolongation approach favors the Vietnamese side.54 Nevertheless, this view may not be correct since geographically China and Vietnam share the same continental shelf in the gulf so that the natural prolongation approach does not apply.55 Under theses circumstances, the boundary line for the EEZ and the continental shelf should be a single line rather than two different lines. A single maritime boundary is convenient and practical.56 China and Vietnam have finally adopted a single line to define their respective sea zones with different legal statuses in the Gulf of Tonkin. The possibility of joint development has also been considered in some scholarly publications. It seems that the rectangular zone in the middle of the Gulf of Tonkin should become a zone of joint development between China and Vietnam.57 Joint development in the maritime boundary delimitation practice is common, usually as an interim measure. There are a number of examples in East Asia, such as the Japanese– Korean Joint Development Zone in the East China Sea,58 and the Malaysian–Thailand Joint Development Zone in the Gulf of Thailand.59 There are two types of joint development arrangements: one is pending delimitation and the other after boundary delimitation. The advantages of joint development are as follows: to facilitate the settlement of boundary dispute; to ensure the equitable distribution of the shared resources; and to avoid potential conflict which may escalate from a territorial dispute. On the other hand, the concept of joint development has its limitations as well, such as the temporary nature when boundary delimitation is pending, and the fact that joint development is usually confined to mineral resources. Recently, China put forward a

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proposal to shelve the sovereignty issue on the Spratly Islands and to develop the resources there jointly with other interested countries. The 1998 Chinese White Paper on Marine Development reaffirmed this policy.60 Vietnam has made an arrangement of joint development with Malaysia.61 Even as early as 1980, despite the poor relationship between the two countries, Nguyen Co Thach, the then-Vietnamese Foreign Minister, proposed that Vietnam and China undertake a joint development program in the gulf.62 Thus the attitudes of the two sides are positive towards joint development. There will still be a possibility for China and Vietnam to consider some kind of joint development in the Gulf of Tonkin even after the maritime boundary delimitation. Any joint development arrangement in the Gulf of Tonkin would be expected not only to address oil and gas exploitation but also, perhaps more importantly, the management of fish stocks. Even without such arrangement for oil and gas, a joint management of fisheries after delimitation is necessary. As a result, the 2000 Sino-Vietnamese Fishery Agreement has established a joint common fishery zone between China and Vietnam in the Gulf of Tonkin.63 Since the main fishing ground is located at the Vietnamese side from the middle line in the Gulf of Tonkin,64 China defended its traditional fishing rights in the negotiations on the maritime boundary delimitation by citing some existing examples in state practice, such as the 1986 France–Italy Agreement on the Delimitation of the Maritime Boundaries in the Area of the Strait of Bonifacio,65 the 1984 France– Monaco Maritime Delimitation Agreement,66 and the 1974 India–Sri Lanka Agreement on the Boundary in Historic Waters between the Two Countries,67 in which there is a provision to the effect that the boundary established is not to affect the traditional fishing activities of fishermen from each state and that such traditional fishing operation may continue undisturbed. The fishery factor thus became one of the key considerations in the negotiations. Role of islands in boundary delimitation The maritime boundary delimitation will be further complicated by the existence of islands in the disputed area. In the case of the Gulf of Tonkin, there are generally two categories of islands in addition to Hainan Island. One is that of the adjacent islands along the coasts of China and Vietnam and the other refers to the outlying islands in the gulf. For the first category, the islands are most likely to be enclosed within the straight baselines of the two countries and some of them will be selected to become basepoints. The respective baselines will no doubt affect the delimitation of the EEZ and the continental shelf. In 1996, China publicized part of its baselines along most of its mainland coast, Hainan Island, and the Paracel Islands.68 The baseline segments from Point 40 (Jinmu Jiao) to Point 49 (Junbi Jiao) along Hainan Island will affect the delimitation of the gulf. Vietnam protested against China’s proclamation of such baselines.69 On the other hand, Vietnam also claimed a straight baseline system, but has not yet claimed any baselines for its coast on the Gulf of Tonkin. Though no official explanation is given for this ommission, the reason may be that the Gulf of Tonkin close to the Vietnamese side is Vietnam’s historic waters, and there is thus no need for a baseline because it is already regarded as Vietnam’s internal water or territorial sea.

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However, since the claim of historic waters has not been recognized by China and delimitation is required, it is necessary for Vietnam to consider asserting a baseline for the coastal areas of the gulf. It is recalled that in September 1964, Vietnam declared 12nm territorial sea and published a map that included the marking of the territorial sea in the Gulf of Tonkin.70 It is not clear whether such status of territorial sea is still recognized. Judging from the 1982 Statement of Vietnam, it seems that such earlier defined territorial sea has been replaced by the newly claimed historic waters. The critical island in the delimitation of the Gulf of Tonkin is the Bach Long Vi Island, approximately 1.6sq km and 53m above sea level, which is proximate to the middle line of the gulf, but a bit closer to the coast of Vietnam (38nm from the nearest Vietnamese coast). It was reported that this island formerly belonged to China and had Chinese inhabitants for centuries.71 It is unknown whether this island was one of the contests in the Sino-French boundary negotiation in 1887 since the 1887 boundary line decided only the ownership of the coastal islands and did not include mid-ocean islands such as the Bach Long Vi Island in the Gulf of Tonkin. However, during the 1950s, in order to show the solidarity of the Sino-Vietnamese friendship and brotherhood, the island was handed over to Vietnam under a decision of the Chinese communist leaders led by Mao Tsetung.72 Since the agreement for this matter is not available to the public, research into this issue is considerably limited. Nevertheless, one thing is certain: the hand-over has put China in a more embarrassed and awkward position in the negotiations. The two sides are certainly expected to engage in a dispute over the effect of the island on the delimitation of the sea zones in the gulf. If both China and Vietnam prefer to apply the equidistance principle, then the effect resulting from the existence of the Bach Long Vi Island must be considered since terms such as “full weight” or “partial effect” are used in conjunction with a discussion of islands in the maritime boundary decisions and literature.73 Thus the problem is whether this island should be valued fully or partially, or be ignored in the delimitation of the gulf. In international practice, there are quite a number of precedents in which special treatment has been given to islands. In the 1982 Libya/Malta case, the ICJ did not allow Malta, an independent island state, to receive full consideration in the establishment of its boundary with Libya. In the 1977 Anglo-French Award, the British Scilly Islands were not given full weight in the delimitation. In the Italy/Tunisia agreement, some islands belong to Italy but near the Tunisian coast were not considered in the boundary delimitation.74 In state practice, mid-way islands are treated differently under different circumstances, subject to the agreement of the parties concerned. Some islands are given full weight despite their proximity to a mainland-to-mainland equidistant line.75 Examples include the 1965 Finland–USSR agreement concerning the Gulf of Finland,76 the 1984 Denmark–Sweden agreement,77 and the 1976 Colombia-Panama agreement.78 Another approach is to reduce the effect of the mid-way islands and in such cases the relevant islands receive only a 3- or 12-nm arc of territorial sea. The 1969 Qatar-UAE (Abu Dhabi) agreement, in which a modified equidistant boundary between the two adjacent states was made, allowed Daiyina, an island belonging to Abu Dhabi, a 12-nm limit.79 Another example can be found in the Italy–Yugoslavia agreement, where the Yugoslav island of Pelagruz was given a 12-nm arc causing the equidistant line to “bulge”.80 A final treatment of islands is to draw the line of equidistance between or from

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mainland coasts, ignoring the existence of the islands altogether, such as occurred in the 1958 Bahrain–Saudi Arabian agreement.81 In the 1985 Libya–Malta Continental Shelf case before the ICJ, the island of Filfla belonging to Malta was ignored as well.82 The first approach mentioned above is certainly the one most preferred by Vietnam, because if it were applied, Bach Long Vi Island would extend the line of equidistance in Vietnam’s favor and would allocate an additional l,700nm2 of maritime zone to Vietnam. In contrast, China would prefer the last approach, and would argue that the location of Bach Long Vi Island constitutes special circumstances that render its use in drawing a line of equidistance inappropriate. As perceived by Morgan and Valencia, “[d]iscounting Ile Bach-Long-Vi, a line of equidistance, which might be reasonable under the equity principle, would be advantageous to China”.83 To reach an agreement, there should be some kind of compromise to coordinate the different positions regarding the effect of the island in the boundary delimitation. If partial effect were given to Bach Long Vi Island, then the question is to what extent the island should receive the effect in the boundary delimitation: 3, 12, or even 24 nm-three standards existing in state practice. Another factor that is important in the light of the island’s effect is the historical fact that this island formerly belonged to China. Bearing this in mind, the effect resulting from the islands in the delimitation should be further reduced in order to reach an equitable solution. Bach Long Vi Island has finally been given an effect of 15 nm in the maritime boundary delimitation as a result of the bilateral negotiations. Concluding remarks The relationship between China and Vietnam is characterized as a “love/hate” relationship. Vietnamese attitudes towards China reflect genuine ambivalence—a “mixture of admiration, envy, resentment and fear”: admiration for Chinese culture and industriousness, but distrust of Chinese intentions and resentment of past arrogance.84 However, history shows that the basis for bilateral cooperation is profound in terms of their similarities in cultures, languages, traditions, social infrastructures, etc. In the Gulf of Tonkin, the two countries carried out a number of cooperative activities in the past. On 27 June 1959, China and Vietnam signed a protocol on the cooperation of the two sides for the comprehensive marine survey in Beibu Gulf. Based on this document, scientists from the two countries conducted comprehensive marine surveys between December 1959 and December 1960, and between December 1961 and April 1963, including the investigations of marine biology and marine hydrology.85 Fishery agreements in the gulf were also concluded three times in recent history in 1957, 1960, and 1963. On 19 October 1993 an agreement on the basic principles for the settlement of border territory issues was formally signed by the two sides in Hanoi. It clearly stipulates that “[w]hile negotiating to settle the issues, the two sides shall not conduct activities that may further complicate the disputes”.86 For this reason, it is unlikely that the two sides would resort to the use of force to resolve their disputes. It is clear that a consensus has been reached for the two countries to settle their disputes according to established international norms, including the LOS Convention. In July 1997, the two foreign ministers, Qian Qichen and Nguyen Manh Cam, agreed to speed up their boundary negotiations so that

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the land boundary issue and boundary delineation in the Gulf of Tonkin could be properly resolved at an early date. During a visit to Beijing by the then Vietnamese Communist Party General Secretary Do Muoi in December 1997, China and Vietnam further agreed to accelerate negotiations with the aim of settling their disputes by the year 2000.87 The sincerity of both sides cannot therefore be doubted, particularly Vietnam’s. It is worth recalling that as early as 1973, when China proposed the rectangular area in the gulf as a neutral zone, Vietnam suspended its negotiations or agreements with foreign oil companies for oil exploration in the gulf, even though Vietnam did not expressly accept the Chinese proposal. The political climate was also good. Vietnam and China normalized their relationship in 1991. Vietnam was admitted into ASEAN. China and the relevant ASEAN members pledged to resolve their territorial disputes in the South China Sea by peaceful means in accordance with accepted international law.88 Some of the recent successful examples for the maritime boundary delimitation in this region can be used as references in the settlement of the Gulf of Tonkin issue. The Agreement on the Maritime Delimitation in the Gulf of Thailand between Vietnam and Thailand was signed on 9 August 1997 and ratified by both sides on 26 December 1997. The agreement put an end to the maritime dispute which involved an over-lapping area of about 6,500 sq km.89 At the time the Vietnamese representative signed the agreement, he expressed his sincere resolve to use this example to facilitate the resolution of the maritime issue in the Gulf of Tonkin.90 Unlike other competing areas in the South China Sea, the issue of the Gulf of Tonkin involves no overlapping territorial claims and there is no dispute over the ownership of any islands. It is a dispute of pure maritime character, pertinent only to the delimitation of maritime boundary. The issue could thus be much more easily resolved than other issues in the South China Sea. The success of the negotiations on the Gulf of Tonkin will no doubt set a good example for resolution of other Sino-Vietnamese territorial issues. On the other hand, this issue is closely interwoven with other territorial issues (the land border and the South China Sea) between China and Vietnam. If the two parties had chosen to negotiate for a comprehensive resolution to all issues at the same time, then it would take much longer, and would create much more difficulties. The Sino-Vietnamese negotiations finally reached an agreement and on 25 December 2000, they officially signed the Agreement on Maritime Boundary Delimitation in the Gulf of Tonkin. It is reported that Vietnam obtained about 8,000 sq km of maritime area more than China,91 though the agreement is not available to the public at the time of writing. Then, Vietnam and China ratified the treaty, respectively, on 15 and 25 June 2004. Thus, it has turned this disputed area into an area of great economic potential and of a long-lasting peace.

Part III Fishery management

6 Sino-Japanese joint fishery management in the East China Sea Fishery resources in the East China Sea The East China Sea is a semi-enclosed sea as defined under the 1982 United Nations Convention on the Law of the Sea (LOS Convention)1 shared among China, Japan, and Korea. It covers about 480,000 sq miles (1,243,190 sq km) and is bounded by the islands of Cheju (north), Kyushu (northeast), Ryukyu (east) and Taiwan (south) and by China’s mainland coast (west).2 It is a marginal sea with a wide continental shelf, and its average depth is 370m with a maximum of 2,719m. The East China Sea, due to its geographical location in the temperate zone and to the role of the Yangtze River mouth and other big rivers in China, is of dense biodiversity and high productivity. The ocean current system contributes to the formation of good offshore fishing grounds, especially near estuarine areas, where the ocean current, of high temperature and salinity, is mixed with the fresh waters of large rivers.3 For that reason, biological and chemical resources are plentiful, which in turn cherish more than 800 fish species, of which about 40–50 are of commercial fishing value, such as yellow croakers, hairtail, and squid. The annual productivity of fish could reach as much as 3.4 million tons.4 China is a big marine fishery country with an annual catch of more than 25.3 million tons,5 of which about 7 percent comes from its pelagic catch. That is to say, most of the catch is from China’s coastal waters. According to a statistic in 1996, China had a total area of 2.81 million sq km of marine fishing grounds.6 The East China Sea embodies 14 traditional fishing grounds for the Chinese, among which the Zhoushan Fishing Ground is the largest, and the catch in the East China Sea accounts for about 50 percent of the total in China. Marine fishery is even more important for Japan than China since Japan is a maritime country. The East China Sea together with the Yellow Sea is one of the eight main coastal and offshore fishing grounds for Japan.7 According to a statistic in 2000, marine fisheries account for 65.8 percent of the total fisheries output. The production of marine fisheries is 5 million tons and trawling from the East China Sea 10,518 tons.8 However, the production from the East China Sea in 2000 was decreased in comparison with the figure in 1999 which was 19,206 tons, and this was possibly due to the implementation of the new Sino-Japanese Fishery Agreement.

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Early efforts With the end of World War II (1939–45), countries in East Asia were desperate to rebuild their homes which had been destroyed or damaged in the war. Acquisition of marine resources from the sea was one of the important means for subsistence and development. For Japan, the restrictive “MacArthur Line” was lessened and finally suspended in April 1952 so that Japanese fishermen could fish beyond the line.9 On the other hand, because during the war normal fishing operations were disrupted or discontinued, fishery resources were abundant afterwards. After the founding of the People’s Republic of China (PRC) in 1949, the Chinese Government carried out an encouraging fishery policy so as to recover the fishery industry after the Civil War (1946–49) and Chinese fishermen were asked to take more fish from the sea.10 Meanwhile, Japan also encouraged its fishermen to go fishing along the Chinese coast. The 1950 Japanese regulations only allowed Japanese trawler fishing boats over 50 tons to operate west of 130˚E longitude (which was changed to west of 128˚E longitude in 1952), and actually pushed bigger fishing trawler boats into fishing areas far beyond the coast of Japan. As a result, approximately 900 Japanese fishing boats conducted fishing operations close by the Chinese coast from the tip of Shandong Peninsula to the mouth of the Yangtze River.11 Clashes were inevitable between the Chinese and Japanese fishermen. Because of poor fishing equipment on the Chinese side, bigger Japanese fishing boats usually took better catches. Complaints from the Chinese fishermen were submitted to their government. In addition, because of the Cold War and the hostility between China and Japan at that time, the two countries did not recognize each other.12 China was not happy to see so many Japanese fishing boats operating along the Chinese coast, and decided to take necessary protective measures for the interests of its own fishermen as well as for the conservation of the fishery resources. The arrest and detention action first started with the seizure of the Japanese fishing boat Dai-Ichi Unzen-Maru on 7 December 1950. As a result, China arrested 158 Japanese fishing boats and 1,919 crew members between December 1950 and July 1954.13 In order to avoid such conflicts and to maintain a normal fishing order in the East China Sea, China and Japan began to discuss the fishery matters. Since there was no official diplomatic tie between the two, the authorized parties for negotiation were nongovernmental entities (despite whether it was in the name). In June 1955, a first (nongovernmental) fishery agreement was reached between the Japan–China Fisheries Council (originally known as Japan–China Fisheries Enterprise Association) and the China Fisheries Association. From 1955 to 1975 except for the period from June 1958 to November 1963, three non-governmental fishery agreements (1955, 1963, and 1965) were negotiated and implemented, and they played a very critical role in establishing and developing fishery relations between China and Japan. The non-governmental agreements usually contained the agreements themselves, annexes, and other related documents such as memoranda, and covered the sea areas north of 27°N excluding Chinese coastal waters. Fishing zones (six zones for trawling and three for seine operations) were established by way of limiting the maximum number

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of fishing boats and fishing seasons. For some areas, the horsepower of fishing boats was also limited. Limitations on the length of fish and the mesh size of fishing nets were imposed. These arrangements were comparable with the Chinese domestic regulations concerning the fisheries in the East China Sea. In June 1955, China promulgated the Order on the Motor Trawl Prohibition Zones in Bohai Sea, the Yellow Sea, and the East China Sea which was designed to change by decree such zones provisionally established in 1950 to be permanent ones.14 The agreement established a joint fishery commission, consisting of three members from each of the two sides, which helped to implement the agreement.15 The total trawl fishery catch under the agreement was 200,000 tons, covering a variety of demersal fish, such as croaker and hairtail, and the number for purse seine catches was 300,000 tons centring on mackerel and jack mackerel.16 What is remarkable in the fishery agreement was the establishment of conservation zones in the East China Sea in the 1950s when sustainable development or other environmental principles had not come into being. It is also remarkable that such conservation zones covered areas in the high seas. Both sides realized that the non-governmental fishery agreements had limitations in nature and were only implemented provisionally, and expected to conclude an agreement at the governmental level.17 However, such time to have a governmental agreement did not come until the normalization of diplomatic relations between China and Japan in 1972. Following the establishment of diplomatic ties, the two countries started their consultations on a governmental fishery agreement. The Fishery Agreement between the Government of the People’s Republic of China and the Government of Japan was finally signed on 15 August 1975, and came into force on 23 December 1975.18 Meanwhile, the non-governmental agreement was terminated. The 1975 Agreement had been revised twice in 1978 and 1985.19 Although the 1975 agreement introduced more rigid protective measures than the non-governmental agreements, it was largely the same as the nongovernmental ones, in which six conservation zones and seven fishing closed zones were established to protect the resources in the East China Sea and the Yellow Sea. Both sides acknowledged that the zones where the agreement applied were part of the high seas. Japanese fishing boats were still permitted to operate along China’s coast, while the Japanese government agreed to require its fishing boats to abide by the protection measures under the Agreement.20 The 1975 Agreement, like the non-governmental agreements, established fishery zones which lie within 182nm from China’s coast both in the East China Sea and the Yellow Sea.21 However, the deterioration of fishery resources has led most of Japanese fishing boats out of the west part of the East China Sea since the end of 1970s. Meanwhile, China’s fishing capacity expanded dramatically in pace with its economic development. Chinese fishermen started to explore the eastern part of the East China Sea, and to catch squid in the Sea of Japan and in the North Pacific areas east of Japan. Under such new circumstances, the Sino-Japanese fishery relations contained new factors: while the 1975 Agreement set forth some restrictive measures on Japanese fishermen, Japan had no such corresponding measures on Chinese fishermen and its restrictions provided in its 1977 Law on Fishery Zone did not apply to Chinese and Korean fishermen. The entry into force of the LOS Convention in 1994 ushered in a new era of fishery relations between China and Japan. China proclaimed the establishment of its EEZ upon

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its ratification of the LOS Convention and Japan promulgated its Law on the EEZ and the Continental Shelf in 1996. Since the broadest width of the East China Sea is less than 400 nm, the whole sea area becomes EEZs that are shared by China, Japan, and Korea. The fishery relationship between the two sides inevitably needed a new adjustment. Strong voices from fishermen of both sides advocated that their governments should take necessary steps to protect their interests. Japanese fishermen and political bodies pushed their government to seek a solution that could eventually keep Chinese fishermen away from the sea areas on the Japanese side by imposing stricter regulations, whereas Chinese fishermen urged their government to find an arrangement that could maintain their existing fishing grounds in the Japanese EEZ on the grounds that Japan had fished considerably along the Chinese coast since the 1950s. Legal and environmental challenges After the adoption of the LOS Convention, the marine legal regime has been changed dramatically. The EEZ regime under the Convention is designed on the one hand to grant the coastal state the sovereign rights to marine resources, and on the other to conserve and manage marine resources in a sustainable manner. For that reason, the LOS Convention contains a number of provisions on the conservation and management of marine living resources including the maximum sustainable catch based on the total allowable yield which is decided by a coastal state on scientific data and other considerations.22 There are two treaty requirements which are particularly important to the management of fisheries in the East China Sea which need unremitting efforts from both China and Japan. First, the LOS Convention requires its contractual parties to take necessary measures to deal with fish stocks occurring within the EEZs of two or more coastal states or both within the EEZ and in an area beyond and adjacent to it by stipulating that 1 Where the same stock or stocks of associated species occur within the exclusive economic zones of two or more coastal States, these States shall seek, either directly or through appropriate sub-regional or regional organizations, to agree upon the measures necessary to coordinate and ensure the conservation and development of such stocks without prejudice to the other provisions of this Part. 2 Where the same stock or stocks of associated species occur both within the exclusive economic zone and in an area beyond and adjacent to the zone, the coastal State and the States fishing for such stocks in the adjacent area shall seek, either directly or through appropriate subregional or regional organizations, to agree upon the measures necessary for the conservation of these stocks in the adjacent area (Art. 63). From the above provisions, it can be seen that there are three distinctive types of obligations for the conservation and management of transboundary stocks according to the kinds of stocks involved: obligation to cooperate, obligation to enter into negotiations, and obligation to regulate by agreement.23 Though it is not clear how many fish stocks in the East China Sea are transboundary, there must be some which can be categorized under this definition. Pelagic spawning grounds and wintering grounds in the East China

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Sea encompass the entire offshore.24 Furthermore, the bilateral fishery arrangement between China and Japan is only regarded as a first step of a regional arrangement for the whole East China Sea, and perhaps including the Yellow Sea as well. It is expected that a regional legal arrangement among all the countries concerned in the East China Sea and the Yellow Sea can ideally fulfill the treaty obligations derived from the LOS Convention. Second, the LOS Convention requires its contractual parties to cooperate between/among themselves when they border the same enclosed or semi-enclosed sea. Accordingly, they should cooperate with each other in the exercise of their rights and in the performance of their duties under the LOS Convention. To this end they should endeavor, directly or through an appropriate regional organization, inter alia, to coordinate the management, conservation, exploration, and exploitation of the living resources of the sea (Art. 123). Thus, fishery management is one of the aspects on which the states bordering a semi-enclosed sea such as the East China Sea can cooperate so as to reach a goal of sustainable development of marine living resources. The requirements in the LOS Convention are further affirmed in the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (the 1995 Agreement) and obliges the contractual parties to take into account the natural characteristics of the semi-enclosed sea and to act in a manner consistent with the relevant provisions of the LOS Convention (Art. 15). In addition, the 1995 Agreement introduced the precautionary principle which is now prevailing in the management of fishery resources worldwide. This principle or approach requires the relevant states to take necessary measures to prevent any adverse impact or threat to the environment or fishery resources, even if risks are not yet certain but only probable.25 According to the 1995 Agreement, the precautionary approach should be applied by the contractual parties by (a) improving decision-making for fishery resource conservation and management by obtaining and sharing the best scientific information available and implementing improved techniques for dealing with risk and uncertainty; (b) applying the guidelines for the application of precautionary reference points and determining, on the basis of the best scientific information available, stock-specific reference points and the action to be taken if they are exceeded; (c) taking into account uncertainties relating to the size and productivity of the stocks, reference points, stock condition in relation to such reference points, levels and distribution of fish mortality and the impact of fishing activities on non-target and associated or dependent species, as well as existing and predicted oceanic, environmental, and socio-economic conditions; and (d) developing data collection and research programs to assess the impact of fishing on nontarget and associated or dependent species and their environment, and adopting plans which are necessary to ensure the conservation of such species and to protect habitats of special concern.26 Both China and Japan signed the 1995 Agreement but have not yet ratified it.27 Nevertheless, some principles and measures stipulated in the 1995 Agreement can be endorsed for the conservation and management of the fishery resources in the East China Sea, particularly in the shared EEZ area between the two countries.

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Since the U.N. Conference on Environment and Development (UNCED) at Rio de Janeiro in 1992, international environmental requirements for the members of the world community have been further tightened. The UNCED adopted the Rio Declaration on Environment and Development and Agenda 21. The Rio Declaration contains 27 principles guiding the protection of the global environment as well as the interests of human beings and their future generations.28 Agenda 21 sets out comprehensive strategies and programs for the whole world to counter environmental degradation and promote sustainable development, and contains a whole chapter (Chapter 17) regarding the protection of the oceans including the protection and rational use of the marine living resources.29 As to the sus-tainable use and conservation of marine living resources under national jurisdiction, states should ensure that such resources in the EEZ or other areas are conserved and managed in accordance with the provisions of the LOS Convention, issues of straddling stocks and highly migratory species are tackled through bilateral and/or multilateral cooperation. Following these environmental requirements, countries have prepared their own agendas 21. China adopted its own Agenda 21 in 1995 and Ocean Agenda 21 in 1996, both of which contain chapters and/or sections dealing with the sustainable management of marine living resources.30 The Food and Agricultural Organization (FAO) is a specialized international organization for the management of global natural resources including fisheries. Under its auspices, many international documents concerning fishery management have been adopted, and the most remarkable one is the Code of Conduct for Responsible Fisheries which was unanimously adopted on 31October 1995. The Code provides a general framework for national and international efforts to ensure sustainable exploitation of aquatic living resources in harmony with the environment.31 It consists of a collection of principles, goals, and elements for action to guarantee the best possible supplies of fish for future generations. The Code requests countries and all those involved in fisheries and aquaculture to work together for conservation and management of fish resources and their habitats. All people involved in fisheries should strive to maintain or restore fish stocks to levels capable of producing reasonable amounts of catch both now and into the future.32 The Code also emphasizes the importance of national cooperation with one another in fisheries management, and the compatibility of management measures taken by one country with similar measures adopted by other countries, particularly when they fish the same stocks in the same sea areas. Since the Code is not a document with legal binding force, countries just follow it bona fide. In order to give it more teeth, the FAO held two follow-up meetings at the ministerial level in 1999 and 2001. The first meeting unanimously adopted the Rome Declaration on the Implementation of the Code of Conduct for Responsible Fisheries.33 Both China and Japan attended the meeting. The second one was the Reykjavik Conference on Responsible Fisheries in the Marine Ecosystem on 1–4 October 2001 in Reykjavik, Iceland where the Reykjavik Declaration on Responsible Fisheries in the Marine Ecosystem was adopted.34 Sustainable management of marine fisheries is not only the requirement from the legal and political documents, but also from the cruel reality that over-exploitation of the world’s marine fisheries becomes a serious concern. Rapid technological advances and significant increases in the human population during the past half century have resulted in

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a vast increase in global production of marine capture fisheries, from 19 million tonnes of catch in 1950 to around 80 million tonnes annually since the mid-1980s. Thus despite the efforts made by the international community for the last decades in the sustainable management of fisheries, the whole world still faces serious challenges resulting from the fact that approximately 75 percent of the world’s fisheries were either fully exploited or over-exploited.35 Fishing fleets in many regions often have a capacity that exceeds the mature fish stocks available. For example, in China’s Zhoushan Fishing Ground, there were only 64 motor-propelled fishing boats and 31,575 non-motor-propelled boats operating there in 1951, but in the 1980s, there were more than 40,000 motor-propelled and 40,000 non-motor-propelled.36 Such increase poses too much pressure on fishery species and marine ecosystems. Closely related is the concern with the global marine environment, which has been deteriorating for decades. The pollution from land-based sources particularly harms coastal fishery resources. According to the Bulletin on China’s Fishery Ecological Environment in 2001, part of the fishing areas were to some extent polluted, and the situation was severe. There was no improvement in comparison with 2000. There were more fishing-polluting incidents than the previous year, and coastal waters were more polluted than offshore waters.37 Domestic laws and regulations The LOS Convention grants the coastal state the sovereign rights to explore and exploit, conserve, and manage the natural resources, whether living or non-living in the EEZ. Also it permits the coastal state to take necessary management measures for its fishery management in the EEZ. However, the realization of those rights and jurisdiction rests on the promulgation of relevant domestic laws and regulations as well as their enforcement. Chinese laws China declared its territorial sea of 12nm from straight baselines in 1958.38 It was not until the 1990s that China enacted its laws on the territorial sea (1992)39 and on the EEZ (1998).40 In the 1992 Territorial Sea Law, China reaffirmed the 12nm territorial sea and 12nm contiguous zone from the outer limit of the territorial sea. Foreign marine operations should be approved by the Chinese authorities and in compliance with Chinese laws and regulations. In 1996, when China ratified the LOS Convention, it proclaimed part of its straight baselines to measure its maritime zones.41 According to the 1998 EEZ Law, China has sovereign rights in its EEZ for the purpose of exploring and exploiting, conserving and managing the natural resources of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents, and winds (Art. 3). It is noted that the above provisions are virtually a verbatim copy of Article 56 (1)(a) of the LOS Convention. Fishery management is an important focus in the EEZ legislation. According to the

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relevant Chinese laws, foreign fishing activities in China’s territorial sea and/or EEZ should be approved by the Chinese authorities and in compliance with Chinese laws and regulations, and/or fishery agreement signed between China and relevant foreign countries.42 As to the preservation of the fishery resources in the EEZ, the Chinese authorities have the right to adopt various necessary measures of conservation and management so as to prevent the living resources in the EEZ from any harm of overexploitation (Art. 6). The Chinese law uses the relevant LOS Convention provisions to ensure China’s rights to the natural resources in the EEZ. The EEZ Law provides that China has the right to conserve and manage the straddling stocks, highly migratory species, marine mammals, anadromous stocks originating in China, and catadromous species which spend the greater part of their life cycle in the Chinese water areas. China has a primary interest in the anadromous stocks originating in its rivers (Art. 6). There is no mention in the EEZ Law of the surplus of the allowable catch in China’s EEZ which, in accordance with the LOS Convention, can be exploited by other countries.43 It is obvious that in the China Seas there is no such surplus because of intense fishing for a long time. Conservation is more important than development in regard to the fish species. Despite this, the Chinese law does not exclude foreign fishing in China’s EEZ. The traditional foreign fishing rights seem guaranteed in the EEZ Law subject to bilateral agreements, such as the Sino-Japanese Fishery Agreement.44 For fishery management in particular, China enacted its Fishery Law in 1986, and amended it substantially in 2000.45 Regarding foreign fishing, the Fishery Law stipulates that Foreigners and foreign fishing vessels shall obtain permission from the relevant department under the State Council before entering the jurisdictional waters of the People’s Republic of China to carry on fishing operations or investigations of fishery resources, and shall abide by this Law and other related laws and regulations of the People’s Republic of China. If those persons and vessels belong to countries that have signed relevant accords or agreements with the People’s Republic of China, their activities shall be conducted in accordance with those accords or agreements (Art. 8). The amended Law adds new provisions to impose liability on foreigners or foreign fishing vessels which have violated relevant Chinese laws and regulations.46 On the other hand, it also incorporates some stipulations concerning Chinese fishing vessel operations in the high seas or jurisdictional waters of other countries. Chinese fishing vessels which intend to conduct distant fishing in the high seas or in fishing zones of joint management between China and other countries should obtain a permit from the competent authority under the State Council, and fishing operations in jurisdictional waters of other countries should be approved by the competent authority under the State Council and should abide by the treaties or agreements acceded to or signed by China as well as the laws of the relevant countries (Art. 23). In addition, the Chinese Ministry of Agriculture has adopted a series of detailed regulations on preservation and utilization of fishery resources within the sea areas of China’s national jurisdiction. In practice, since 1995 China has implemented the new system of a summer closed season for two or three months from

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June to September to reduce the adverse impact on marine living resources and to protect young fish stocks. Since 1999 China has further carried out a new policy to reach the goal of maintaining “zero growth” in marine fishery catch. For example, the output in 1999 should not exceed the quantity of 1998 (about 15 million tons). Japanese laws Japan extended its territorial sea from 3nm to 12nm by the Territorial Sea Law (Law No. 30) on 2 March 1977. It enacted the Law on Provisional Measures Relating to the Fishing Zone (Law No. 31) on 2 May 1977. Because of the existence of the fishery agreements between Japan and China and between Japan and Korea, respectively, and because there was no delimitation of the EEZs and continental shelves between these countries, a Cabinet Order of 17 June 1977 implementing the above law provided for non-application of the Law in the areas in the Sea of Japan west of the longitude of 135˚E, the East China Sea, and the Pacific Ocean of the southwestern parts of the Nansei (Ryukyu) Islands, and accordingly exempted Chinese and Korean fishermen from the application of the newly established 200 nm Fishery Zone in the Sea of Japan, the East China Sea, and the Pacific Ocean so that they could continue fishing in the sea areas outside the 12 nm territorial sea but within the 200 nm fishery zone.47 Since Japan only established its fishery zone instead of the EEZ, it was able to take some flexible measures towards Chinese and Korean fishermen so as to maintain the normal fishery relations with these two countries. After the ratification of the LOS Convention, Japan adjusted its legal regime on maritime zones accordingly. It revised the territorial sea law48 and enacted the law on the EEZ and continental shelf in 1996.49 Japan uses straight baselines, instead of its former normal baselines, along many parts of its coastal lines, to measure its maritime zones. The adoption of straight baselines considerably extended the outer limits of Japan’s claimed territorial sea.50 The EEZ Law applies Japan’s relevant laws and regulations to the activities for economic exploitation and exploration of natural resources in the EEZ together with other matters such as drilling on the continental shelf, protection and preservation of the marine environment, marine scientific research, construction, operation, and use of artificial islands (Art. 3). The officials may exercise the right of hot pursuit in law enforcement. It is not clear whether the EEZ Law replaces the law on fishing zone in 1977 since there is no mention in the EEZ Law in this regard. The extent of the EEZ is 200 nm, but in the area where 200 nm cannot be claimed, Japan prefers the use of the median line (or the line which may be agreed upon between Japan and a foreign country as a substitute for the median line) to delimit the EEZ boundary between Japan and a neighboring country. Japan set up a comprehensive system of marine fishery management based on a series of laws and regulations including the Fishery Law (1949), Law on the Protection of Aquatic Resources (1951), Law on the Development of Marine Aquatic Resources (1971), and Law on the Provisional Measures for Fishery Zone (1977). There are two rights for Japanese fishermen: (1) the right to fishery which is designed for offshore fishing activities including aquaculture; and (2) fishing license which is applicable to offshore, outer shore, and distant fishing operations.51 One of the features of the Japanese fishery management is the establishment of the Fishery Adjustment Committees at the

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local, regional, and central levels. They function to enhance the democratic management of fisheries as well as fishery production. It is reported that Japan is preparing a basic law on fisheries to emphasize the importance of fishery in the national economy and development.52 As Japan officially proclaimed, “[a]s a country with major interests in fishery, Japan has been constantly paying keen attention to the conservation and management of marine living resources, and has been contributing vigorously to the formulation and implementation of international conservation and management measures”.53 Domestic laws and regulations on fishery management from both countries no doubt have impact on the process of negotiating the new Sino-Japanese Fishery Agreement, and some of them are reflected in the Agreement. Joint arrangements The year 1996 was an important year for all East Asian countries in the field of the law of the sea. In that year, the three countries—China, Japan, and South Korea—officially ratified the LOS Convention. In addition, they enacted relevant laws and regulations on the territorial sea and the EEZ. Under such new circumstances, new arrangements for fisheries became necessary, and the governments concerned realized their importance. China and Japan were eager to reach a new agreement. As Japan states, [t]he Government of Japan, with regard to fishery relations with the Republic of Korea and the People’s Republic of China, makes earnest efforts to start talks promptly, with the aim of the early conclusion of new fishery arrangements, fully based upon the spirit of the United Nations Convention on the Law of the Sea, and to reach a conclusion within a reasonable period of time.54 However, there are disagreements in the talks. Japan implemented its domestic law on the EEZ and continental shelf by extending its EEZ to the unilaterally assumed median line in the East China Sea, but China strongly opposed the Japanese claim based on the median line and emphasized historical and existing fishery relations between the two countries. China also tried to preserve rights of its fishermen to fish in Japan’s EEZ located other than in the East China Sea. Chinese fishermen feared that they would be driven away from the traditional fishing grounds which were critical to their livelihood and families.55 After several rounds of negotiation, the two sides finally reached agreement in September 1997 regarding the fishery management in the East China Sea.56 The new agreement came into force from 1 June 2000. It consists of one preface, 14 clauses, and two annexes with a number of significant achievements. Affirming the principle of fishery resources conservation and protection Pursuant to the relevant provisions in the LOS Convention and environmental requirements from Agenda 21 and others, the Agreement contains as one of its purposes the establishment of a new fishery order in accordance with the LOS Convention, conserving and utilizing rationally marine living resources of common concern, and

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maintaining the normal operation order at sea. Both sides agree to cooperate to conduct scientific research in fishery and to conserve marine living resources (Art. 10). Each should adopt necessary measures to ensure compliance by their nationals and fishing boats with the provisions of the Fishery Agreement and the conservation measures and other conditions provided for in the relevant laws and regulations of the other Party when they are engaged in fishery activities in the other’s EEZ, and should inform each other of such conservation measures and other conditions provided for in its relevant laws and regulations (Art. 4). In order to ensure compliance by their nationals and fishing boats engaged in fishery activities in the EEZ with the conservation measures and other conditions provided for in their relevant laws and regulations, both sides agree to take necessary measures for their EEZs in accordance with international law. Arrest or detention is allowed under some conditions set forth in the Agreement, and vessels should be promptly released after an appropriate bond has been posted.57 This is particularly meaningful when it is recalled that in the early years so many Japanese fishing boats were arrested and detained by the Chinese side. Reciprocal fishing rights The Agreement applies to the EEZs of both countries. However, this does not include all the EEZs as the Agreement excludes the EEZ area south of 27°N, and west of 125˚30′E in the East China Sea where Taiwan and the disputed Diaoyu/Senkaku Islands are located. In comparison with the 1975 Fishery Agreement which applied only to the water areas along the Chinese coast and within the de facto Chinese EEZ, the new agreement applies to the EEZs of both sides. It also implies the application of the Agreement to the EEZs of both sides in other sea areas such as the South China Sea, the Sea of Japan, and the North Pacific. Within the EEZ, China and Japan give each other’s nationals and fishing boats the right to fish in the EEZs pursuant to the principle of reciprocity, the Fishery Agreement, and their relevant domestic laws and regulations. The competent authorities of each party issue fishing permits to nationals and fishing boats of the other party, and may levy appropriate fees on the issuance of such permits. The issuance of fishing permits to the fishermen of the other side should follow the relevant provisions of the Agreement.58 Nationals and fishing boats of each party engaged in fishery activities in the other’s EEZ should comply with the Agreement and the other’s relevant laws and regulations (Art. 2). How many permits should be issued and how many tons of fish can be caught by the other side in its EEZ is a complicated and difficult matter which needs both sides to discuss and reach an agreement. The Agreement simply provides that Each Party shall, taking into account resource conditions in its exclusive economic zone, national catch capability, traditional fishery activities, conditions subject to which the other Party is permitted fishing entry and other relevant factors, decide annually the allowable catch of fish species, catch quota, fishing areas and other operation conditions. This decision shall be subject to the result of the consultations of the Sino-Japanese Fishery Joint Committee to be established in accordance with Article 11 (Art. 3).

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There is also the issue affecting the implementation of the Agreement. Both legislatures ratified the Agreement in 1998, but according to the Agreement, the execution of the Agreement requires the exchange of notes between the two sides, which was not made until February 2000 when the two sides solved their differences. As a result, the Agreement came into effect on 1 June 2000. The main difference concerned the treatment of the water area north of 30°40′N in the East China Sea. China expressed the view that since the northern part of the East China Sea involved the maritime boundary delimitation of three countries (China, Japan, and South Korea), the status quo should be maintained. Japan requested the implementation of the EEZ regime and that the Chinese fishing boats when operating within the Japanese EEZ water should apply for and get a permit from Japan and accept Japan’s administration. After more than 20 rounds of consultation, the two sides reached the agreement to create an intermediate zone. Both sides could conduct fishing operations in the Intermediate Zone between 124˚45′E and 127˚30′E without permission from each other, but to the east of the Intermediate Zone, Japan gives 900 fishing permits to the Chinese side, while China gives Japan 317 permits to the west of the Intermediate Zone.59 Each year the two sides decide the number of permits and the fishing quotas. According to the conditions set forth by the Chinese side for the Japanese fishing vessels operating in China’s EEZ in 2000, Japan can fish in China’s EEZ not only in the East China Sea, but also in the Yellow Sea and the South China Sea. The conditions include quotas (e.g. 3,500 tons for trawling in the Yellow Sea), number of permitted vessels (e.g. 42 for trawling in the Yellow Sea), geographical limitations (e.g. no vessels are allowed to enter the territorial sea of the Xisha Islands and the Protection Zone of Aquatic Resources of the Zhongsha Islands in the South China Sea), and time of operation (e.g. 1 June to 31 December for purse seine in the Yellow Sea).60 Reciprocally, Japan set forth similar conditions for the Chinese fishing boats. For trawling in the Sea of Japan and the East China Sea, the fishing quotas are 10,000 tons, fishing vessel numbers (of 120 tonnage or below) are 100 (in the Sea of Japan) and 700 (in the East China Sea), and limits of fishing time and geographical areas are set. In addition, Chinese fishermen are allowed to fish squid in Japan’s EEZ in the Sea of Japan and the Pacific.61 The quota of the total allowable catch will vary from year to year. In December 2001, China and Japan agreed to cut their fishing quotas in 2002 in each other’s EEZ to 62,546 tons-a cut of 7,800 tons in Japan’s fishing quota from 2001 and a cut of 10,500 tons in China’s quota.62 The Provisional Measures Zone The establishment of the Provisional Measures Zone (PMZ) is regarded as “one striking feature” of the new fishery agreement.63 The Agreement creates the PMZ by using encircling straight lines connecting in order the following points: 1 30°40′N, 124˚10′1″E 2 30°00′N, 123˚56′4″E 3 29°00′N, 123˚25′5″E 4 28°00′N, 122˚47′9″E 5 27°00′N, 121˚57′4″E

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6 27°00′N, 125˚58′3″E 7 28°00′N, 127˚15′1″E 8 29°00′N, 128˚0′9″E 9 30°00′N, 128˚32′2″E 10 30°40′N, 128˚26′1″E 11 30°40′N, 124˚10′1″E Accordingly, it is located in the middle of the East China Sea, 52 nm from the baselines of the territorial seas for the Chinese mainland coast and for the coast of the Ryukyu Islands with its northern limit on the parallel of 30°40′N and its southern limit on the parallel of 27°N (which was also the southern limit of the 1975 Agreement). For conservation and quantity of fishery resources in the PMZ, both sides should adopt, based on decisions made by the Sino-Japanese Fishery Joint Committee, appropriate management measures in order to protect marine living resources from the harm of being over-exploited. Each party should take administrative and other necessary measures for its nationals and fishing boats fishing in the PMZ, and should not impose administrative and other measures on nationals and fishing boats of the other party in this water area. When one party has discovered any breach of operation conditions by a national and fishing boat of the other party, it may call the attention of the national and fishing boat to the facts and notify the other party of the facts and other information concerned. The party, with due regard to the notification of the other party, should inform the other party of the result after necessary measures have been taken (Art. 7). It can be seen that flag state jurisdiction applies in the PMZ, rather than the jurisdiction of the coastal state over its EEZ. In that sense, the PMZ retains some kind of high seas status. So far there have been no concrete management measures formulated by the Fishery Committee. However, both sides agreed in 2000 to continue their consultations on the management measures for the PMZ as well as for the Intermediate Zone in the north East China Sea.64 The establishment of such an area is in conformity with the relevant provisions in the LOS Convention. Articles 73 and 84 of the Convention concern the delimitation of the EEZ and continental shelf between states with opposite or adjacent coasts and encourage the countries concerned to “make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardise or hamper the reaching of the final agreement” before the final agreement has been reached. In addition, such arrangements should not be prejudicial to the final delimitation. That is why in the Sino-Japanese Agreement there is a provision stating that “[n]o provision in this Agreement shall be construed as prejudicial to the respective positions of both Parties on the law of the sea issues” (Art. 12). The establishment of a common fishery zone is a typical form of fishery cooperation for shared waters between any two countries. There are many examples in the world. The Sino-Japanese PMZ is just a new addition. What is new is that the PMZ is the first such zone between China and Japan, though there was some kind of fishery cooperation between the two sides in history. It indicates that the fishery cooperation between these two countries has entered a new era. It is recalled that China established a common fishery zone in the Gulf of Tonkin with Vietnam in 2000 under the Sino-Vietnamese Fishery Agreement.65 However, in comparison, there are two main differences between the Sino-Vietnamese Zone and the

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Sino-Japanese Zone: (a) the former is permanent while the latter is provisional; and (b) the former is connected to the maritime boundary delimitation and the fishery issue was one of the critical considerations during the delimitation negotiation while the latter has no such connection and the PMZ is just designed for fishery management rather than provisional delimitation of the EEZs. On the other hand, since the PMZ has implications for the delimitation of the EEZs, it became the toughest issue in the negotiation of the fishery agreement. At the beginning Japan proposed a median line as a provisional fishery line but China opposed it. In early 1997, Japan proposed the establishment of a PMZ and it was accepted by China. The size of the PMZ became a focal difference between the two sides. Japan preferred a PMZ with a small as possible size while China preferred a larger PMZ. Japan proposed that the distance from the PMZ to each other’s coast should be no less than lOOnm, but China wanted to reduce it to 24 nm.66 As a compromise, the distance of 52 nm was determined. The joint Fishery Committee In order to implement the fishery agreement as well as to coordinate respective fishery management procedures, both sides decided to establish the Joint Fishery Committee which consists of four members, two of whom are appointed by each Party. This is actually inherited from the 1975 Agreement, but with varied stipulations. The tasks of the Committee include: 1 to consult on matters relating to fishing conditions and reciprocal permits, matters relating to the water area south of 27°N and 125˚30′E, and to make recommendations to governments of both parties. The matters subject to consultation include: a those relating to the catch of fishery species, quota of fishery catches and other specific operation conditions for nationals and fishing boats of the other party; b those relating to the maintenance of the operation order; c those relating to the state and conservation of marine living resources; d those relating to fishery cooperation between the two countries. 2 to consult and decide on matters relating to the PMZ; 3 if necessary, to make recommendations to the governments of both parties on any revision of the annexes to the Agreement; and 4 to study the situation of implementing this Agreement and other matters relating to the Agreement. The decision-making mechanism is based on the unanimous consent of the committee members. Both sides have to respect the recommendation made by the Joint Fishery Committee, and adopt necessary measures in accordance with its decision. The Committee may be convened annually either in China or in Japan and temporary meetings, if necessary, may be held (Art. 11). Such a committee is not new and was provided for in the 1975 Sino-Japanese Fishery Agreement. However, in comparison, the functions of the new committee are more substantial and include consultation on the catch of fishery species, quota of fishery catches, and other specific operation conditions. In addition, the number on the

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Committee is reduced from 6 to 4. What is not clear is to what extent the recommendations made by the Committee for management measures are binding upon the two sides since the Agreement only uses the word “respect”. Issues affecting the fishery management There are two big issues which affect the implementation of the fishery agreement: (1) maritime boundary delimitation; and (2) the territorial dispute over the Diaoyu/Senkaku Islands. China and Japan began their talks on the delimitation of the EEZ and continental shelf in 1995. At the beginning of the talks on the fishery agreement, China wished to discuss EEZ delimitation. Due to the different positions of the two sides, such talks were deadlocked.67 Since both sides realized that delimitation would take a long time, they agreed to negotiate the fishery agreement first. Thus the EEZ delimitation is still a pending issue. The fishery agreement can be regarded as a provisional arrangement in this respect. According to the Agreed Minutes on 11 September 1997, both governments expressed their intentions to continue the consultation on the delimitation of the EEZs and continental shelves of the two countries, and the PMZ established under the Fishery Agreement should not be deemed to prejudice the positions of both sides concerning the above delimitation. Despite its nature as provisional, the Agreement contains important implications for the future EEZ delimitation since it has narrowed the disputed area in the East China Sea between the two countries. At least, there will be no tough discussion in the future talks over the EEZ areas of both sides except for those which are either the PMZ, the Intermediate Zone, or the areas not covered by the Agreement. On the other hand, the Diaoyu/Senkaku issue was frozen in the fishery agreement by providing that both sides respect the current fishing operations in the part of the East China Sea in the north of the PMZ, pay due consideration to the traditional fishing of the other country and the resource situation of the said area, and not unduly damage the interest of fishing of the other country in the said area, in considering the traditional and cooperative fishing relations.68 As explained by the Japanese side, the purpose of the fishery agreement was to establish a fishing order between Japan and the PRC and had no direct relationship with the territorial title of the Senkaku Islands. The territorial waters of the Senkaku Islands are not an area where the agreement applies or would affect its status.69 At present, the Diaoyu/Senkaku Islands are under Japan’s control, but the dispute goes back over a century.70 There is no immediate prospect that the dispute could be solved in the near future. Besides the above most important issues, there are other issues in the fishery management in the East China Sea, such as the illegal fishing problem. In the past before the Agreement, illegal fishing activities occurred frequently in the East China Sea due to the unclear demarcation line. It is hoped that illegal fishing can be reduced with the help of the implementation of the Sino-Japanese Fishery Agreement and future efforts to be made by the Joint Fishery Committee. In recent years, many Chinese fishing vessels, either from the mainland or Taiwan, have been detained by neighboring countries, such as the Philippines, Vietnam, Japan, or Russia for alleged illegal fishing in their EEZs.

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Moreover, fishing vessels from other countries have been detained by China for the same reason. Since the Sino-Japanese Fishery Agreement only covers part of the East China Sea, illegal fishing may continue to occur, particularly in the areas outside the coverage of the fishery agreement. In addition, illegal fishing occurs in other forms by the fishermen of the coastal states. In China’s case, there are two phenomena which need to be prevented and eliminated. The first is that many fishing vessels do not possess complete and/or valid certificates for fishing. The Chinese Government started in 2001 to clean up and rectify fishing boats which did not have the valid fishing license, the valid boat registration certificate, and the valid boat inspection certificate.71 The other is the irrational plunder after the closed season. Because of the long time break, when the fishing season begins the fishermen just want to catch as many fish as possible to remedy the economic loss during the break, and some even use illegal methods for that aim, thus severely damaging the fishery resources and the efforts of the closed season.72 To prevent this, effective law enforcement is indispensable. Interplay occurs between various bilateral fishery relations in the East Asian region. The Sino-Japanese relations have implications for Sino-Korean fishery relations and Japan–Korean fishery relations. Any bilateral arrangement may affect other relations and interests since they share the same sea area and use the same pool of marine living resources. For example, when Japan and Korea concluded their new fishery agreement, China considered that the Japan–Korea Fishery Agreement encroached on China’s sovereign rights over its EEZ in the border areas among the three countries and stated that China’s rights and interests in the EEZ and its fishery activities should not be subject to the limitation of that agreement. China maintained that the delimitation of the overlapping area among the three countries should be subject to consultations among the parties concerned, and exclusion of any party from the delimitation negotiations would be a violation of international law.73 On the other hand, South Korea also expressed its dissatisfaction with the Sino-Japanese Fishery Agreement by asking China and Japan to explain how they drew the northern-limit line of their joint fishing area. They should consult South Korea before reaching the agreement.74 The establishment of the EEZ regime reduces the scope for fishing, particularly for the traditional big fishing countries such as Japan. As early as 1974–75, the Japanese fish catch within 200 nm of the shores of other countries plunged by more than 500,000 tons from 4,246,000 tons to 3,744,000 tons. The total production from marine fisheries registered a drop of 176,000 tons.75 Where the Sino-Japanese fishery relations are concerned, the old fishery agreements benefited Japan a lot because Japanese fishermen could fish in China’s economic waters; the new agreement provides a principle of reciprocity so that fishermen from both sides can fish in each other’s EEZs under the conditions set forth in the agreement. In that sense, Japan suffers a loss with the conclusion of the new agreement. On the other hand, with the rapid development of China’s marine fishery industry, more Chinese fishermen fished in Japan’s economic waters in recent years, and the conclusion of the new agreement forces a large number of fishermen and fishing boats to retreat from the Japanese EEZ. China has to cut its fishing work force and fishing boats by around 10 percent in the coming five years (from 2002) as a response to the implementation of fishery agreements signed with other countries.

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More than 30,000 fishing boats have to retreat from their traditional fishing grounds and the livelihood of 300,000 fishermen has been affected. The affected fishermen will have to find other jobs.76 Among them, the fishermen in Zhoushan—a traditional fishing prefecture with 250,000 fishermen and another 500,000 people working in fishery-related sectors out of a one million population—are most severely affected.77 As a general trend, China’s allowable catch in Japan’s EEZ will further be decreased as shown in fishing quotas arranged for the year 2002.78 Concluding remarks It should be noted that the fishery relationship is the first link of the chain of normalizing the overall and comprehensive relations between the two countries. It was the first area of contact between China (PRC) and Japan, either through conflict at the outset or through cooperation afterwards, despite the absence of formal diplomatic ties between them in the 1950s and 1960s. Second, it is remarkable that, at a time before the legal regime of maritime zones was established, the two sides were able to reach an agreement on fishery management in what is now the area of the EEZ. The new agreement is another significant development in their fishery relations and cooperation towards sustainable management of fishery resources in the East China Sea. It is the first such agreement between China and its neighboring countries concluded after the establishment of the EEZ regime. Following the Sino-Japanese Fishery Agreement, China signed fishery agreements with South Korea (August 2000) and Vietnam (December 2000). Third, the fishery relationship has been expanded to areas other than fishing operations in the East China Sea. It is reported that China has replaced the United States to become the largest provider of aquatic products for Japan in recent years, and the export in 2001 was 682,435 tons.79 In 1998 the two sides signed a protocol on marine fishery technology development and established a base in Rizhao, Shandong Province.80 Therefore, the view that the East Asian countries treat fishery management and marine environmental protection as trivial matters and are incapable of resolving the growing multiple-use conflicts in their EEZs81 should be amended when the recent Sino-Japanese joint fishery management for their EEZs is fairly considered. Finally, it is noted that the Agreement is different from the 1975 Sino-Japanese Fishery Agreement in the sense that the new one has a dual function: to continue the governance of the joint fishery management and to serve as a provisional arrangement for the future delimitation of the EEZs and continental shelves between China and Japan. On the other hand, it has to be realized that the fishery agreements either between China and Japan, or China and South Korea, or Japan and South Korea are bilateral ones. They have limitations and also do not completely cover the areas in the East China Sea and the Yellow Sea. Second, because of the bilateral nature, they may affect the interests of a third party as illustrated above in the Japan-Korean Fishery Agreement. Third, since bilateral agreements only regulate bilateral relations, fishing activities of third parties are outside any regulation. This is particularly true when Taiwan is concerned. Finally, many fishery resources in the East China Sea and the Yellow Sea are migratory species so that they belong to the same marine ecosystem. In that sense, the East Asian seas urgently

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need a regional and multilateral fishery arrangement which can be more effective to conserve and manage the fishery resources therein, and the newly concluded bilateral fishery agreements including the Sino-Japanese one could be the basis for such regional cooperation.

7 Sino-Vietnamese Fishery Agreement in the Gulf of Tonkin On 25 December 2000, China and Vietnam officially signed the Agreement on Fishery Cooperation in the Gulf of Tonkin together with the Agreement on Maritime Boundary Delimitation in the Gulf of Tonkin.1 This is the latest fishery agreement in East Asia towards sustainable management of fishery resources in the sea areas within national jurisdiction.2 This chapter will review and assess this bilateral agreement. Background As described in Chapter 5, the Gulf of Tonkin is a shared water area between China and Vietnam. Marine living resources are abundant in the Gulf of Tonkin due to some favorable natural factors, such as nutrient-rich discharges from numerous river systems, and year-round warm water temperature. The gulf is rich in organic substances and inorganic salt, and waters along the coasts are highly productive, containing abundant plankton and other organisms totaling up to 1,150 types. It therefore provides ideal conditions for fish to spawn, breed, feed, and mature.3 It is reported that there are 928 species of fish in the gulf and among them more than 20 are of commercial value.4 The main species include snapper, grouper, catfish, croaker, shrimp, and lobster.5 The fishing grounds in the Gulf of Tonkin are traditional fishing areas for both the Chinese and the Vietnamese. Indeed, the Beibu Fishing Ground is one of the four largest fishing grounds in China.6 On the other hand, due to the geographical conditions, the distribution of the fishery resources is not even between the two countries. The majority of the resources are located in the waters adjacent to the Vietnamese side. Recently, scientific data showed that fishery resources in the Beibu Gulf had been overexploited.7 Since the fishery resources in the Gulf of Tonkin are shared by China and Vietnam, bilateral cooperation in this regard is inevitable. The first fishery agreement between China and Vietnam was signed in 1957. The Agreement stipulated that the near offshore fishing grounds should be reserved for the respective adjacent coastal countries respectively, while the fishing grounds in the middle of the gulf were open to fishermen from both countries. In 1960, the 1957 Agreement was extended and a supplementary protocol to the Agreement was signed in 1961. These Agreements expired on 31 July 1963. In August 1963, the two countries signed a new fishery agreement which determined respective offshore lines and although special arrangements were made for a certain number of small fishing boats, the basic principle was that the fishing vessels from one side were not allowed to enter the area inside the limits of the other side. The 1963 Agreement expired in July 1969. In addition, China and Vietnam also signed an

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agreement on the preservation of fishery resources in the Red River in 1962.8 Due to the deterioration of the Sino-Vietnamese relationship in the 1970s, however, there was no new fishery agreement between the two sides until the end of 2000. Both China and Vietnam are signatories of the United Nations Convention on the Law of the Sea (LOS Convention).9 Based on the relevant provisions of the LOS Convention, the two countries established their respective EEZs by enacting new laws and regulations. The relevant Chinese legislation on EEZ and marine fisheries is already mentioned in the preceding chapter. Vietnam issued its Statement on the Territorial Sea, the Contiguous Zone, the EEZ, and the Continental Shelf on 12 May 1977.10 It declared the establishment of its EEZ much earlier than the Chinese pronouncement. Under Decree No. 30 on Regulations for Foreign Ships Operating of 29 January 1980, all catching, exploiting, or trading of any products without permission is prohibited in Vietnam’s maritime zones. When navigating in Vietnam’s EEZ, foreign fishing vessels must remove all their nets and other fishing instruments and store them in the ships’ holds and must render inoperative all their equipment for fish exploration, detection, and guidance.11 In May 1989 the Council of State promulgated a “regulation on the preservation and development of marine resources”, with the object of bringing about rational management and uniform control over those resources.12 On 9 June 1999, Vietnam promulgated the Decree on Sanctioning Administrative Violations in the Territorial Waters and Adjacent Areas, Exclusive Economic Zones and the Continental Shelf,13 which stipulates that the Vietnam Coast Guard has the competence to action against violations in the fields of security, order and safety, environmental protection, protection of aquatic resources and mineral resources, illegal transportation and smuggling. The Decree applies to foreigners and foreign vessels alike which have violated the relevant Vietnamese laws and regulations on fishery management together with the Decree No. 49/CP of 13 July 1998 on the Administration of Fishing Activities Conducted by Foreigners with Foreign Instrument in the Vietnamese Sea Areas. Foreign lawbreakers are subject to fines up to VND 100M, confiscation of the fishing gear as well as criminal liability in serious cases. It can be seen that the provisions of the Chinese and Vietnamese laws and regulations on fishery management are very similar and very strict in relation to foreign fishing activities within the waters under their respective jurisdiction. In terms of fishery management in the Beibu Gulf, common efforts have been exerted from both sides. As early as 1963, China and Vietnam jointly conducted a survey on fishery resources in the gulf. However, the efforts made by the two sides are not even. For example, China established closed seasons and closed areas for fishing activities in the Beibu Gulf, but it seems that no corresponding efforts had ever been made by the Vietnamese side. For this reason, there have been complaints by some Chinese fishery specialists. The Chinese conservation measures include the establishment of fishery resources conservation areas and the implementation of restricted fishing systems, including periods of closed seasons. Such measures have been taken by three Chinese coastal provinces adjacent to the Beibu Gulf, but they only apply to waters under China’s jurisdiction and to Chinese fishermen.14 Due to the continuing decline of fishery resources in the gulf, joint efforts of fishery management from the two sides are most important and urgent. The new fishery agreement can therefore be seen as a significant

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reflection of the joint efforts made by both sides towards sustainable management of the fishery resources in the Gulf of Tonkin. The new fishery agreement Fishing operations in the Gulf of Tonkin are important for economic development of the coastal regions adjacent to the gulf of both China and Vietnam, particularly the Chinese side. The Chinese have used the fishery resources in the gulf more heavily than the Vietnamese. Before the 1950s, Chinese fishing boats could fish within the 6 nm limit along the Vietnamese coast, and could land for food and fresh water supplies. However, in the 1960s after the conclusion of the first Sino-Vietnamese Fishery Agreement, Chinese fishing activities were restricted. With the further tightened measures taken by the Vietnamese side, the Chinese fishermen were only permitted to conduct fishing operations on the Chinese side of a line drawn across the middle of the gulf. In the 1980s, due to the deterioration of bilateral relations between the two countries, there were a large number of incidents involving the detention and arrest of Chinese fishing vessels. In order to avoid further loss of property and life, the Chinese advised its fishermen not to fish in the waters on the Vietnamese side of the middle line of the gulf. Nevertheless, the fishery issue was still there and needed a solution. The new negotiation on the delimitation of the Gulf of Tonkin commenced in 1993 when the countries normalized their relations. The fishery issue was first put forward by the Chinese side, who wanted to include cooperation on fishery management with the issue of maritime boundary delimitation of the gulf. China insisted on a “package deal” including fishery arrangements, such as recognition of the traditional fishing rights of Chinese fishermen. The Vietnamese emphasized the importance of resolving the issue of the EEZ demarcation line, and conservation and utilization of the fisheries should be considered later only after the resolution of the boundary delimitation. For that reason, Vietnam refused China’s request at the first stage of the negotiations. It was not until 1998 that Vietnam agreed to discuss the fishery issue in the context of the negotiation of the Beibu boundary delimitation, thus paving the way to reach the agreement between the two sides. The new Fishery Agreement was signed in 2000, reflecting the efforts made by both sides. It contains 22 articles and one annex. The purpose of the Agreement, as it stands, is to maintain and develop the traditional friendly relationship between the two neighboring countries, and to preserve and to utilize marine living resources in a sustainable manner in the Beibu Gulf. The Agreement applies to parts of the EEZs and parts of the adjacent territorial seas of the two countries (hereinafter referred to as “Agreed Water Area”) in the Beibu Gulf. The two parties have agreed to undertake fishery cooperation in the Agreed Water Area based on mutual respect for sovereignty, sovereign rights, and jurisdiction. However, the cooperation does not affect the sovereignty of the two countries over their respective territorial seas and other rights and interests enjoyed by them in their respective EEZs (Art. 2). It seems that neither China nor Vietnam accepts judicial settlement of any dispute resulting from interpretation or application of the Agreement. Instead, they prefer to seek

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settlement through friendly consultation as provided for in the Agreement. In order to avoid fishery disputes arising from small boats mistakenly entering each other’s territorial waters illegally, both parties agree to establish a buffer zone for small fishing boats with the following extent: the water area encircled by the straight lines connecting the following points: (a) 21˚28′12.5″N, 108˚06′04.3″E; (b) 21˚25′40.7″N, 108˚02′46.1″E; (c) 21˚17′52.1″N, 108˚04′30.3″E; (d) 21°18′29.0″N, 108˚07′39.0″E; (e) 21°19′05.7″N, 108˚10′47.8″E; (f) 21˚25′41.7″N, 108˚09′20.0″E; and (g) 21°28′12.5″N, 108˚06′04.3″E. Each party, if it finds small fishing boats of the other party conducting fishing activities in its water area in the buffer zone, may send a warning, or take necessary measures to order them to leave that water area, but in so doing that party should restrain its action and not detain or arrest the vessels in question, nor use force. If there is any dispute relating to fishing activities, it should be reported to the Sino-Vietnamese Joint Committee for Fishery in the Beibu Gulf (hereinafter referred to as the Joint Fishery Committee) for settlement; if any dispute should go beyond fishing activities, it should be settled by the relevant and respective competent authorities of the two countries in accordance with their domestic law (Art. 12). The Chinese side probably initiated the restraints on the use of force in dealing with the fishermen and fishing boats since China always opposes the use of force in fishery management. This is reflected in China’s declaration when China signed the 1995 Agreement for the implementation of the LOS Convention relating to the conservation and management of straddling fish stocks and highly migratory fish stocks in 1996. Both sides are obliged to provide assistance or render salvage and protection to the nationals and fishing vessels of the other side when they are in distress or other emergencies in the sea area of the other party. When the nationals and fishing vessels of one party seek refuge due to bad weather or other emergencies, they may take refuge in the area of the other party in accordance with the Annex to the Fishery Agreement and the regulations of the Joint Fishery Committee. During the refuge, the nationals and fishing vessels of that party should abide by the relevant laws and regulations of the other party, and obey the arrangement of the other side (Art. 15). Each party should ensure the right of innocent passage and navigational convenience of fishing vessels of the other party in accordance with the provisions of the LOS Convention (Art. 16). In addition to the above stipulations, the major achievements of the Agreement are the establishment of the Common Fishery Zone and the Joint Fishery Committee of the two parties. Common Fishery Zone China and Vietnam have agreed to establish a Common Fishery Zone in their respective areas of 30.5nm of the EEZs of the two countries from the demarcation line determined in the Delimitation Agreement on the Beibu Gulf, north to the closing line of the Beibu Gulf, and south of 20˚N. The actual extent of the Common Fishery Zone is the water area encircled by straight lines connecting a series of coordinate points (16 coordinates between 17°23′38″N, 107˚34′43″E and 20˚00′00″N, 108˚42′32″E). Both parties will undertake long-term fishery cooperation in the Common Fishery Zone in the spirit of

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mutual benefit, and jointly take measures in relation to preservation, management, and sustainable utilization of the living resources in the Common Fishery Zone in accordance with the natural conditions, characteristics of the living resources, the needs of sustainable development and environmental protection, and the impact on the respective fishery activities of the two parties (Art. 5). Guided by the principle of equality and mutual benefit, both parties will determine annually the quantity of operating fishing vessels for each party in the Common Fishery Zone through the Joint Fishery Committee established pursuant to Article 13 of the Fishery Agreement, based on the allowable catch which is itself determined on the basis of the results from joint regular surveys on fishery resources and the impact on respective fishing activities of both parties, and the needs of sustainable development (Art. 6). Both parties will carry out a licensing system for fishing activities conducted by their own fishing vessels in the Common Fishery Zone. Fishing permits are to be issued in accordance with the quantity of fishing vessels in the current year determined by the Joint Fishery Committee, and one party should notify the other of the names of the fishing vessels granted permits. Both parties are obliged to educate and train their fishermen who conduct fishing activities in the Common Fishery Zone (Art. 7). Fishing vessels which intend to enter the Common Fishery Zone for fishing activities must apply for permits from the competent authorities of their own countries,15 and they cannot enter the Zone until they have obtained the permits. The fishing vessels of both sides that operate in the Common Fishery Zone should identify themselves with some conspicuous marks on board in accordance with the regulations set forth by the Joint Fishery Committee. Nationals and fishing vessels of both parties who operate in the Common Fishery Zone should comply with the regulations on preservation and management of fishery resources laid down by the Joint Fishery Committee, and should complete a fishing log correctly in accordance with the requirements by that Joint Committee and submit it to the competent authorities of their own countries within the prescribed time. The competent authorities of the parties have the right to monitor and inspect the nationals and fishing vessels of both parties in their own water areas of the Common Fishery Zone in accordance with the regulations laid down by the Joint Fishery Committee, based on the characteristics of the Common Fishery Zone, and in line with the domestic laws of both parties on preservation and management of fishery resources. The competent authorities of one party, having found any breach of the regulations laid down by the Joint Fishery Committee by nationals or fishing vessels of the other party in the Beibu Gulf in its own water area of the Common Fishery Zone, have the right to deal with such breach in accordance with the regulations laid down by the Joint Fishery Committee, and should notify the other party promptly of the relevant circumstances and the way the issue has been handled through the consultation mechanism established by the Joint Fishery Committee. The detained fishing vessels or crew should be released promptly after the appropriate bond or other kind of security has been posted (Art. 9). The competent authorities of both parties, if necessary, may coordinate to conduct joint monitoring and inspection, and to handle any breach of the regulations laid down by the Joint Fishery Committee concerning preservation and management of fishery resources. Each party, in accordance with its domestic law, has the right to impose punishment on

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fishing vessels which enter its own water area in the Common Fishery Zone without a permit, or with a permit but conducting illegal activities other than fishing activities. Each party should provide facilities for the permitted fishing vessels of the other party in the Common Fishery Zone. The competent authorities of each party should not abuse its power, or hamper normal fishing activities conducted by the permitted nationals and fishing vessels of the other party in the Common Fishery Zone. Each party, having found that the competent authorities of the other party has conducted law enforcement in contravention of the common management measures adopted by the Joint Fishery Committee, has the right to request this authority to render explanations, and to submit, if necessary, the matter to the Joint Fishery Committee for discussion and settlement (Art. 9). Each party may adopt any form of international cooperation or form of joint venture within the framework of operational scale in its own area in the Common Fishery Zone. All the vessels under the above cooperative or joint ventures will be permitted to conduct fishing activities in the Common Fishery Zone but should comply with the regulations on preservation and management of fishery resources adopted by the Joint Fishery Committee, hoist the national flag of that party who has granted them the permit, mark them in accordance with the regulations of the Joint Fishery Committee, and operate within the area of that party who has granted them the permit. The establishment of a common fishery zone is a typical form of fishery cooperation for shared waters between two countries.16 The Sino-Vietnamese Common Fishery Zone is simply a new addition. However, this common zone is the first such zone between China and Vietnam and indicates that the fishery cooperation between them has entered a new era. This is just the same as the establishment of the PMZ under the Sino-Japanese Fishery Agreement, though the Sino-Vietnamese Common Fishery Zone is different in nature and in functions.17 Joint Fishery Committee In accordance with the Fishery Agreement, the Joint Fishery Committee will be established. Each country will send one representative to sit in the Committee together with several other committee members. The Agreement does not mention who the other members are nor how many of them there should be. Since the Joint Fishery Committee will make detailed regulations on its operational mechanism, these matters will only be known in the fullness of time. The following functions are granted to the Joint Fishery Committee: 1 to consult on matters relating to the preservation and sustainable utilization of fishery resources in the Agreed Water Area, and to make proposals for the two sides; 2 to consult on matters relating to fishery cooperation between the two countries in the Agreed Water Area, and to make proposals for the two sides; 3 to adopt regulations and implementing measures on preservation and management of fishery resources in the Common Fishery Zone in pursuance to Article 5 of the Agreement; 4 to determine the quantity of fishing vessels of each party entering into the Common

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Fishery Zone annually in pursuance to Article 6 of the Agreement; 5 to consult and decide on other matters relating to the Common Fishery Zone; 6 to carry out the functions in accordance with the supplementary protocol on transitional arrangements; 7 to settle disputes of fishing activities occurring in the buffer zone for small fishing boats; 8 to guide the settlement of fishery disputes and maritime accidents within its prescribed capacity; 9 to evaluate the situation of implementing this Agreement and report to the two Governments; 10 to propose to the two Governments any amendment or revision of the Agreement, annexes, and supplementary protocols; and 11 to consult on other matters within common concern of the two parties. Any proposal and decision of the Joint Fishery Committee is subject to the unanimous agreement of the representatives of both parties. The Joint Fishery Committee will hold one or two meetings annually, and the venue alternates between the two countries. Meetings ad hoc may be held with the agreement of both parties when necessary (Art. 13). The establishment of the joint fishery committee is significant in the overall SinoVietnamese fishery cooperation. Just as the Common Fishery Zone, the Joint Committee is also the first permanent bilateral body which has the competence to manage the fishery issues in the Gulf of Tonkin. As provided in the Fishery Agreement, many matters regarding fishery management will have to be discussed and resolved by this committee; it will play a most important role in this regard. In this sense, sound and sustainable fishery management depends on the effective functions of this newly-established body. Management issues The Sino-Vietnamese Fishery Agreement has reflected in many aspects the spirit and letter of the LOS Convention.18 There are several provisions regarding the cooperation in the field of fishery management, as mentioned above in relation to the establishment and management of the Common Fishery Zone as well as the establishment of the Joint Fishery Committee. In addition, the two parties agree to cooperate for fishery scientific research and preservation of marine living resources in the Agreed Water Area, and either party can make international cooperation for fishery scientific research in its own water area of the Agreed Water Area (Art. 17). Although the Sino-Vietnamese Fishery Agreement reflects the concept of sustainable development, unfortunately it does not incorporate the precautionary principle which is now prevailing in the management of fishery resources worldwide. It is contained in the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (the 1995 Agreement), which China signed in 1996 but has not yet ratified. For Vietnam, it still remains outside this agreement. Nevertheless, some principles and measures stipulated in the 1995 Agreement

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can be endorsed for the conservation and management of the fishery resources in the Gulf of Tonkin. It is predicted that when the Sino-Vietnamese Joint Fishery Committee begins to work, it may adopt management measures which incorporate or reflect the precautionary approach. China’s historic fishing rights seem not to be reflected fully in the Fishery Agreement. The LOS Convention only mentions “traditional fishing rights” in relation to archipelagic waters, but not in relation to EEZs (see Art. 51). Nevertheless, there are existing boundary delimitation agreements signed by other countries which have retained the traditional fishing activities from the countries concerned and such traditional fishing operations may continue undisturbed.19 Probably, the transitional arrangements contained in the Fishery Agreement impliedly reflect the traditional fishing rights, as Article 11 provides that Each Contractual Party shall make transitional arrangements for the existing fishing operations of the other Contractual Party in its exclusive economic zone north of the Common Fishery Zone (measured from 20˚N). The transitional arrangements shall be implemented from the date of the entry into force of this Agreement. The other Contractual Party shall take measures to reduce such fishing operations year by year. The transitional arrangements will end within four years from the date of the entry into force of this Agreement. The extent of the water area and management measures for the transitional arrangements shall be made by the Contractual Parties in the form of a supplementary protocol, which shall constitute an integral part of this Agreement. Each Contractual Party, upon the end of the transitional arrangements, shall give priority, under the same conditions, to the other party for fishing operations in its exclusive economic zone. These arrangements can be seen as a partial realization of the Chinese traditional fishing rights in the gulf. Nevertheless, the Agreement does not mention any traditional fishing rights in any of its clauses expressly. That would imply, on the other hand, and the Vietnamese would prefer to say, that the Chinese claim to any traditional fishing rights in the Gulf of Tonkin has been denied. No such rights have ever been recognized by the Vietnamese side. Furthermore, it should be borne in mind that even the transitional arrangements made under the Agreement may only last four years after the entry into force of the Agreement. When the period of four years expires, the Chinese traditional fishing rights in Vietnam’s EEZ may be taken away totally, despite the provision in the Agreement that both parties should give each other priority access for fishing operations in their EEZs. As provided in the Agreement, the two parties will negotiate a detailed protocol to implement the transitional arrangements. Another issue relating to the fishery management in the Gulf of Tonkin is illegal fishing. With the establishment of the EEZs around the world, illegal fishing has become a big issue in fishery management. According to a recent UN report, illegal, unreported, and unregulated fishing activities (IUU fishing) have increased on the high seas as well as in areas under national jurisdiction.20 The seriousness of IUU fishing is recently reflected in two judgments rendered by the International Tribunal for the Law of the Sea in 2000 in

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cases involving applications for the prompt release of vessels alleged to have fished illegally in the EEZ of a coastal state: The Camouco case (Panama v. France) and the Monte Confurco case (Seychelles v.France).21 The UN has called its member states to take action to combat this issue globally, regionally, or domestically. It is recalled that in the past, before the 2000 Agreement, illegal fishing activities occurred frequently in the Gulf of Tonkin due to the unclear demarcation line. When China and Vietnam maintained a good and harmonious relationship, these activities could be tolerated and ignored by both governments, but when the relationship between the two sides deteriorated, they instantly became an issue. As a result, detention, arrest, even shooting took place. Thanks to the Sino-Vietnamese Fishery Agreement, illegal fishing in the territorial sea or EEZ of either side can be reduced, or even eliminated finally, while the Joint Fishery Committee can resolve any related issue. Final remarks The conclusion of the Sino-Vietnamese Fishery Agreement can be seen as a natural consequence after the establishment of the EEZ in international law as well as in domestic laws of the two countries. On the one hand, both countries have established their EEZs for the purpose of exercising their sovereign rights and jurisdiction over the management and utilization of the marine living resources there, but on the other they both have lost their traditional fishing grounds which existed before the establishment of the EEZs in the sea area of the other side. This is a trade-off deal, just as the new SinoVietnamese Fishery Agreement manifests. It should be noted that the Sino-Vietnamese Boundary Delimitation Agreement is critical in assessing the Fishery Agreement. The relationship between these two agreements is very close. The Fishery Agreement is regarded as an important component of the delimitation of the Beibu Gulf.22 First, the Fishery Agreement is made in accordance with the Boundary Agreement together with international law including the LOS Convention. Second, the geographical coordinates of the Common Fishery Zone stipulated in Article 3 (2) of the Fishery Agreement and the geographical coordinates of the buffer zone for small fishing boats are measured from the complete map of the Beibu Gulf and the special map of the mouth of the Beilun River annexed to the Delimitation Agreement on the Beibu Gulf (Art. 21). Due to the closeness of these two accords, some issues will not be clarified until the contents of the Sino-Vietnamese Boundary Delimitation Agreement are known to the public. For example, the “closing line” of the Gulf mentioned in Article 3 of the Fishery Agreement is not clear and needs crossreference to the Delimitation Agreement. The entry into force of the Fishery Agreement depends on the completion of the exchange of notes by the two governments after ratification at the domestic level by both sides. The Agreement, once it comes into force, will last 12 years with an automatic extension of another three years. On 29 April 2004, the two sides signed the Supplementary Protocol to the Fishery Agreement, which has paved the way to bring the Fishery Agreement into effect. On the signing ceremony in Beijing, both sides agreed to push forward the entry into force of the two agreements relating to the Gulf of Tonkin by

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30 June 2004.23 Yet, it should be borne in mind that the Fishery Agreement together with the Maritime Boundary Delimitation Agreement was signed during the time when Le Kha Phieu, who was regarded as a pro-China conservative and replaced recently by Nong Duc Manh, was the secretary-general of the Vietnamese Communist Party.24 He was blamed for giving away too many concessions to China for the conclusion of the above agreements. Although doubts persist, there is cause for optimism since both sides pledged to implement the agreement “in real earnest” and cooperate with each other effectively.25 The implementation of the Sino-Vietnamese Fishery Agreement, after it has entered into force, needs further supplementary arrangements in order to reach the goal of sustainable development of fishery resources in the Gulf of Tonkin. In accordance with the Agreement, any future annex or supplementary protocol, once signed by both sides, will become integral parts of the Fishery Agreement. In addition, the Joint Fishery Committee will have the competence to adopt measures for fishery management. In considering the persistent dispute over the Paracel and Spratly Islands between China and Vietnam, there may be some uncertainties as to the implementation of the 2000 Fishery Agreement. However, on the other hand, the conclusion of the agreements regarding the boundary delimitation and fishery management in the Gulf of Tonkin may actually facilitate the resolution to the South China Sea dispute. At the signing ceremony of the above two Agreements, the two sides agreed to maintain the existing negotiation mechanism on maritime issues and to persist in seeking a fundamental and everlasting solution acceptable to both sides through peaceful negotiations.26 It is recalled that there were three major border issues in the relationship between China and Vietnam: the land boundary issue, the issues arising in the Gulf of Tonkin, and the issues in the South China Sea including the Paracel and Spratly Islands. Now the first two issues have been resolved through consultation and negotiation between the two sides,27 and only the last one remains. Despite whatever difficulties remain, on the basis of the negotiating of the present Fishery Agreement as well as other agreements, the two countries do obviously have the capacity to resolve their issues in a peaceful and friendly fashion. As the conclusion of the Sino-Vietnamese Fishery Agreement for which both sides pledged to accomplish by the end of 2000 illustrates, the political will of the two sides plays a critical role.

Part IV Safety of navigation and maritime security

8 Redefining the legal status of the Taiwan Strait Geography of the Taiwan Strait It seems that the Taiwan Strait crisis which resulted from the missile tests launched in 1996 by mainland China in order to intimidate Taiwan is not over. The proclamation of “special state to state relations” made by Lee Teng-hui, then President of Taiwan, in July 1999 exacerbated cross-Strait relations and blocked the continuation of dialogues between the two sides. On the other hand, as described in Chapter 2, in 1998—the UN Year of the Ocean—Taiwan promulgated its laws on the territorial sea and on the exclusive economic zone (EEZ)/continental shelf in January, while mainland China enacted its Law on the EEZ/continental shelf in June in addition to its 1992 Law on the Territorial Sea and the Contiguous Zone. Thus the basic marine legal regimes both in the mainland and in Taiwan have been formulated in accordance with the United Nations Convention on the Law of the Sea (the LOS Convention). Under such circumstances, it is necessary to redefine the legal status of the Taiwan Strait. Research on this is meaningful for at least two reasons: one relates to the tricky issue of the legal status of the Taiwan Strait itself; the other relates to the newly formulated ocean legal order based upon the LOS Convention. What is more significant is the fact that China is now a divided nation and the Taiwan Strait has become and will remain a military and strategic arena for China’s future. The Taiwan Strait is located between China’s Fujian (Fukien) Province and Taiwan Province and constitutes a critical corridor connecting the East China Sea to the South China Sea. Actually the Strait itself is regarded as part of the East China Sea.1 The breadth of the northern end is about 93nm and that of the southernmost end 116nm. It is more than 170nm long and about 60 m in average depth.2 The Strait is within the continental shallow sea and three-quarters of its water is less than 60m in depth. The Taiwan Strait is one of the more important fishing grounds in China, and there are about 700 fish species, among which 100 species are economic. The coastal areas of the Taiwan Strait contain rich sand deposits. Recently, oil and gas has been discovered around the Taiwan Strait. For example, petroleum has been discovered in the seabed area off the western coast of Taiwan.3 In addition, the Taiwan Strait is traditionally used as an important navigational waterway both for China and for the rest of the world. For China, it is a critical sea route from north to south between the East China Sea and the South China Sea, and also between Taiwan and Fujian.4 Many islands and reefs are scattered in the Strait. Along the mainland coast the significant islands include the Jinmen (Kinmen or Quemoy) and Mazu (Matsu) Islands which are under the jurisdiction of the Taiwan authorities. The 12 Jinmen islands are located off the southern coast of Fujian Province, covering an area of 150.45 sq km. They lie at approximately 118˚24′E longitude and 24°27′N latitude, a key position in the

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Taiwan Strait that blocks the mouth of the Xiamen (Amoy) Bay and protects Taiwan and Penghu (Pescadores). The Jinmen Islands are 82 nm west of the Penghu Islands and 150nm from Kaohsiung in southern Taiwan. The shortest distance from the main island, Jinmen, to the territory of mainland China is only 2,310m.5 Situated outside the mouth of the Min River, the Mazu Islands form the northern anchor of the offshore defense line commanding the Min River. The main island of the complex is Nankan, more commonly known as Mazu, from the name of the major port of the island. It is 114nm northwest of Keelung, the port city on the northern tip of Taiwan, and is the same distance north of the Jinmen Islands. Other major islands of the group are Peikan, Kaoteng, Tungyin, Hsiyin, Tungchu, and Hsichu. Nankan is the largest, with an area of 10.4 sq km. Kaoteng is located only 5.5nm (9,250m) from the Chinese mainland.6 Along the Taiwan side, the biggest islands are the Penghu Islands, lying between 119˚18′03″ and 119˚42′54″E, and consisting of 64 islets situated in the Taiwan Strait. The total area of the islands is 126.86sq km. Penghu, the largest island of the archipelago, accounts for half of the total area, and is home to 70 percent of the population.7 In the past, they were a key stopping place for ships sailing throughout the Far East and crossing the Pacific. In the developments of marine law, the Taiwan Strait is a key concern both for the mainland and Taiwan, in particular after the entry into force of the LOS Convention. Mainland China ratified the Convention in 1996.8 Although Taiwan is not a party to the LOS Convention because of its peculiar status in the world community, it declared that it would follow the new legal rules embodied in the LOS Convention to exercise maritime jurisdiction and manage maritime affairs, which can be illustrated by its laws on the territorial sea and on the EEZ promulgated in 1998. Historical and political implications Historically the Taiwan Strait has been a battlefield. For example, in 1661, Zheng Chenggong (Koxinga) led his army across the Strait to recover the Taiwan Islands from the Dutch colonists.9 In 1949, the Nationalist Government retreated to Taiwan from this strait. In Chinese history 1949 was critical because, from this year on, China was divided with two governments: the Nationalist Government in Taiwan continued to use the name of the Republic of China (ROC)10 while the Communist Government in the mainland established the People’s Republic of China (PRC). As a result, there are two de facto jurisdictions existing within the Strait. The divided status of China has also made the situation in the Taiwan Strait complex and uncertain. In terms of administrative zoning, there are two coastal provinces adjacent to the Taiwan Strait: Fujian Province and Taiwan Province. Taiwan Province is under the control of the ROC while the Fujian Province is part of the PRC except for some coastal islands. The ROC Government administers only two counties in Fukien Province: Kinmen County, which encompasses Kinmen, and Lienchiang County, which encompasses Matsu. In July 1956, the ROC military assumed full administrative responsibility for these two counties. Military administration lasted until 7 August 1992, when Lee Teng-hui promulgated the Statute for the Security and Guidance of Kinmen,

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Matsu, and the Pratas and Spratly Areas. The return of local autonomy to Kinmen County and Lienchiang County is part of the ROC’s recent constitutional reforms. The residents of these counties now have the same rights and freedoms as all people in Taiwan. However, the Self-Governance Law for Provinces and Counties, passed in July 1994, does not apply to the Fujian Provincial Government because of the small area under its jurisdiction.11 Since these islands are close to the mainland coast, their administration is a difficult task for the ROC. On the other hand, such contiguity produces strategic significance for the defense of Taiwan and Penghu. During the 1950s, the situation in the Taiwan Strait was rather intense. The communist regime in the mainland pledged to “liberate” Taiwan. In order to deter the expansion of communism from mainland China to Taiwan and Southeast Asia, the United States was determined to protect Taiwan from being occupied by the PRC. It sent the 7th Fleet to the Taiwan Strait to “neutralize” the Strait.12 Further, the United States concluded a mutual defense treaty with the Nationalist Government in Taiwan.13 Accordingly, the United States promised to protect Taiwan; in return, the Nationalist Government should not launch a military attack against the mainland without the consent of the United States. Since then a state of peace based on military confrontation has existed in the Taiwan Strait. In 1987, Taiwan abolished its marshal law and permitted its people to visit the mainland. Four years later, the Period of National Mobilization for Suppression of the Communist Rebellion was terminated. Taiwan adopted in 1993 the Guidelines of National Reunification, seeking the reunification of China by peaceful means and based upon democracy and freedom. For that purpose, Taiwan has no longer regarded itself as the sole representation of the whole of China and has recognized the division of China and the existence of the Communist Government in the mainland as an unfriendly regime.14 Meanwhile mainland China exerted its endeavors to unify the country also by peaceful means and based upon the principle of “one country, two systems”. However, the mainland has not given up use of force to reach the goal of unification in certain extreme cases. For example, if Taiwan should declare independence, mainland China may use force to reunify the country. As the White Paper on China’s National Defense states, “[t]he Chinese government seeks to achieve the reunification of the country by peaceful means, but will not commit itself not to resort to force”.15 Thus there is no doubt that the political situation across the Taiwan Strait has a direct impact upon the Strait itself as well as the activities therein. From the above background, we can see that the study of the Taiwan Strait has to focus on the two main lines: one is based upon the law of the sea; and the other is on crossStrait relations. Useful research must therefore reflect these two main threads. Legal status before and after UNCLOS III The Taiwan Strait is generally classified as an international strait in international law, which is defined as a contraction of the sea between two territories, being of a certain limited width

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and connecting two seas otherwise separating at least in that particular place the territories in question.16 It seems that, before the LOS Convention, such definition applied to all international straits, though we have to admit that the definition was rather general and inaccurate. However, after the adoption of the LOS Convention in 1982, the definition of international straits becomes narrower and divided: narrower because, under the LOS Convention, the definition of straits used for international navigation only refers to those straits within the territorial seas of the coastal states; divided because, after the LOS Convention, it seems that there are two definitions for international straits: one is the strait used for international navigation, and the other is the remaining kind of strait. The LOS Convention defines the “strait used for international navigation” as a strait connecting one part of the high seas or an EEZ with another part of the high seas or an EEZ (Art. 37). There are two criteria: one geographical and one functional. The geographical criterion is that the strait connects one part of the high seas or an EEZ with another part of the high seas or an EEZ; and the functional one is that the strait is used for international navigation.17 In addition, such straits must be within the ter-ritorial seas of the coastal states. Foreign ships and aircraft can enjoy the right of transit passage through these straits. Transit passage means the exercise of the freedom of navigation and overflight solely for the purpose of continuous and expeditious transit of the strait between one part of the high seas or an EEZ and another part of the high seas and an EEZ (Art. 38). However, if a strait used for international navigation is a strait between a part of the high seas or an EEZ and the territorial sea of a coastal state, the regime of innocent passage provided in the LOS Convention should apply (Art. 45). The typical examples of such straits are the Straits of Malacca and Singapore. The Straits of Malacca and Singapore are situated between Sumatra and the Malayan peninsula and serve as a major international route linking the Indian Ocean and the South China Sea. The Strait of Malacca is 500 miles long and varies in width from 220 miles to 10 miles.18 The Strait of Singapore is just an extension of the Strait of Malacca. That is why they are always mentioned together. In the early 1970s, the straits’ coastal states attempted to extend their territorial sea to 12nm and to tighten up the control of the navigation through the Straits since the whole Straits lay within their respective territorial seas after the maritime extension. In the tripartite Joint Statement issued on 16 November 1971, Indonesia and Malaysia (but not Singapore) agreed that the Straits of Malacca and Singapore were not international straits while fully recognizing their use for international shipping in accordance with the principle of innocent passage.19 The maritime powers, such as the United States and the former Soviet Union strongly opposed this position and insisted on the international character of the Strait of Malacca and Singapore for free navigation of foreign vessels. Largely as a result of this confrontation, the compromise model of transit passage regime was reached in UNCLOS III and incorporated into the LOS Convention. Thus, for straits like the Straits of Malacca and Singapore, the transit passage regime applies. We now turn to examine whether the stipulations governing the straits used for international navigation contained in the LOS Convention can apply to the Taiwan Strait. The geographical features described in the first section of this chapter demonstrate that

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the Taiwan Strait is not the strait fully within the territorial seas of the coastal states. Under such geographical circumstances, the LOS Convention expressly provides that the regime governing the straits used for international navigation should not apply to such straits as the Taiwan Strait: Nothing in this Part affects: (a) any areas of internal waters within a strait, except where the establishment of a straight baseline in accordance with the method set forth in Article 7 has the effect of enclosing as internal waters areas which had not previously been considered as such; (b) the legal status of the waters beyond the territorial seas of States bordering straits as exclusive economic zones or high seas; or (c) the legal regime in straits in which passage is regulated in whole or in part by long-standing international conventions in force specifically relating to such straits (Art. 35). The Taiwan Strait is thus within the second category according to the above provision. Despite the non-applicability of the straits regime of the LOS Convention, it should be noted that such a regime bears, at least, indirect implications for straits like the Taiwan Strait. More importantly, we may derive some useful elements for the establishment of a legal regime for such straits as the Taiwan Strait, which will be dealt with below in the Conclusion. On the other hand, it may be noted that other regimes established in the LOS Convention can apply to the Taiwan Strait. After the LOS Convention, the legal status of the Taiwan Strait has been changed from a strait embodying high seas waters to a strait only with waters within national jurisdiction of China. The waters within the Strait may be divided into several sea zones in accordance with the LOS Convention, i.e. the internal waters, territorial sea, and EEZ/continental shelf. Because of the different status of the maritime zones, the navigational routes within the Strait have different legal governing provisions. In the case of internal waters, China, the only coastal state to the Taiwan Strait, has full sovereignty and jurisdiction over such part in the Strait. PRC publicized part of its straight baselines in May 1996 together with its ratification of the LOS Convention. The publicized baselines include the mainland coast along the Taiwan Strait (points 19–24).20 If there is a navigational route inside the publicized baselines, then PRC has full control over the passage of foreign vessels. Similarly, along the other side of the Taiwan Strait, there should be a certain belt of waters which can be enclosed into the internal waters of Taiwan when the baselines have been determined. On 31 December 1998, the ROC authorities publicized part of its baselines, including those encircling the Taiwan Island and Penghu Islands in the Taiwan Strait.21 Outside the baselines is the 12nm belt of the territorial sea where foreign vessels can enjoy innocent passage in accordance with the LOS Convention. The laws of the mainland and Taiwan provide different stipulations which are mentioned in Chapter 2 and thus affect the passage in the Taiwan Strait. As far as the EEZ is concerned, the LOS Convention only vests certain sovereign rights in the coastal states, and it is by no means clear that coastal states like China have the right to impose any excessive restrictions upon the freedom of navigation by foreign vessels including warships. The main part of the Taiwan Strait is within the EEZ area so

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that foreign ships can pass freely. The LOS Convention reaffirmed the freedom of navigation in the straits used for international navigation which have routes through EEZs. However, the Convention sets down a further condition that such a route is “of similar convenience with respect to navigational and hydro-graphical characteristics” for foreign vessels.22 That means that, if there is no such route, foreign vessels may enjoy the right of transit passage within the territorial sea part of the strait. This further complicates the situation in the Taiwan Strait. On the other hand, exercise of sovereign rights and jurisdiction by the coastal states in the EEZ may create certain conflicts of interests with the freedom of navigation. Chinese domestic regulations on straits Having discussed the general provisions in the LOS Convention relating to the legal status of the Taiwan Strait, it is necessary to look into the Taiwan Strait from the Chinese domestic angle. As we know, at UNCLOS III, PRC supported the right of developing straits states to control straits used for international navigation. In the Working Paper on Sea Area within the Limits of National Jurisdiction submitted by the Chinese Delegation in July 1973, PRC expressed that “[a] strait lying within the territorial sea, whether or not it is frequently used for international navigation, forms an inseparable part of the territorial sea of the coastal State”.23 PRC asserted that the navigation of foreign vessels should be subject to the regulations of the coastal state, i.e. foreign commercial vessels might enjoy the right of innocent passage and foreign warships must obtain prior authorization.24 When the straits states submitted their proposal to UNCLOS III, PRC supported them.25 Thus, PRC favored a regime of innocent passage for straits used for international navigation. This PRC position and policy was also reflected in its domestic legislation. In addition to the Taiwan Strait, the other major strait in China is the Qiongzhou Strait (Chiungchow Strait) which is situated between Hainan Island and the Leizhou Peninsular. It is about 50 miles long and from 9.8 to 19 miles wide.26 In 1958, PRC promulgated the Declaration on the Territorial Sea, which expressly declared that the Qiongzhou Strait was China’s internal strait.27 The reasons behind this statement were, according to a Chinese legal authority, that the Qiongzhou Strait is an important sea route linking the mainland with the Hainan Island and a convenient navigation route between our country and southeast Asian countries. It has an extremely important meaning for our economy and national defense. Historically, it has always been subject to our sovereign jurisdiction and has constituted an inalienable, composite part of our territory. Since liberation [in 1949] our country has always administered it as an internal strait. The present Declaration is merely to reaffirm once more a historical fact.28 It should be noted that whether or not the Qiongzhou Strait was an internal strait of China is unclear before the 1958 Declaration. It may be assumed that to a large extent the status of the Qiongzhou Strait as an internal strait was a result of China’s declaration that it would use straight baselines to enclose the coastal sea areas as its internal waters, though

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at that time the exact delineation was not publicly known. For administrative purposes, PRC promulgated the Regulations concerning the Passage of Foreign Non-Military Vessels through the Qiongzhou Strait in 1964. According to these Regulations, warships are not allowed to navigate through the Qiongzhou Strait, while the non-military vessels may pass through it subject to strict regulations. When any merchant vessel intends to make a passage through the Qiongzhou Strait, it must apply to the Qiongzhou Strait Authority 48 hours before the vessel enters the Strait, or before the vessel leaves port, with detailed information about name, nationality, tonnage, speed, color of hull, funnel marking, port of departure, time of departure, and destination. The vessel, after having obtained permission, must inform the Authority of the exact time of entering the Strait 24 hours before its entry. The Qiongzhou Strait Authority may, when it deems necessary, close the Strait. The speed of the vessel shall be less than 10 knots.29 The vessel should pass through the central channel in the Strait and should not use radar, except specially permitted to do so by the Authority. The above regulations are very stringent in terms of passage of foreign vessels through the Qiongzhou Strait. Some countries, particularly the United States, protested at the promulgation of these regulations.30 However, the international law of the sea only governs the innocent passage in the territorial sea and transit passage for straits used for international navigation; it leaves the power to regulate the passage in internal straits to coastal states. Second, besides the Qiongzhou Strait, there are also other navigable channels outside Hainan Island. It is said that these regulations particularly affected neighboring Vietnam,31 but, recalling history at that time, when Vietnam had fought wars first against France and later against the United States, the Chinese regulations definitely benefited Vietnam, as China was its ally in defending the Gulf of Tonkin and North Vietnam including Hanoi. The above regulations, on the other hand, indicate that PRC has taken a tough position regarding passage in the Strait. Thus the administration of the Qiongzhou Strait can be seen as a mirror to assess the legal status of the Taiwan Strait. The 1958 Declaration on the Territorial Sea uses the wording “high seas” in relation to the Taiwan Strait. As expounded by an authoritative scholar in China: If the breadth of the strait is wider than twice the breadth of the territorial sea declared by the coastal State, then the sea area outside the territorial sea should be open sea. There are many straits belonging to this category and the Taiwan Strait conforms to this situation. Both shores of the Taiwan Strait are our territory, but the breadth of the strait is from 83 to 140 nautical miles, which is wider than twice the breadth of the territorial sea of our government. Therefore, the Declaration on the Territorial Sea issued by our government expressly points out that there is open sea [in the Taiwan Strait].32 It is obvious that, before the establishment of the EEZ in the Taiwan Strait, the freedoms of the high seas (including freedom of navigation) applied to the Strait. However, the current status of the Taiwan Strait is different from its former one. In the 1992 PRC Law on the Territorial Sea and the Contiguous Zone the “high seas” wording did not appear since according to the LOS Convention the sea water beyond the 12 nm territorial sea in

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the Taiwan Strait has been categorized as China’s EEZ. Except for the part in the Strait which was subject to the freedom of navigation, the Strait in general is governed by the domestic laws of China including the mainland and Taiwan under their respective jurisdictions. The PRC Law on the Territorial Sea and the Contiguous Zone reaffirms the provision in the 1958 Declaration on the Territorial Sea that the territorial sea of China is 12nm from the baselines from which the territorial sea is measured.33 In addition, the law provides that China uses the straight baselines to delineate the extent of its territorial sea. In May 1996 PRC publicized part of its straight baselines including those relating to the Taiwan Strait on the mainland side. On the other hand, ROC also promulgated its Territorial Sea Law in January 1998. As mentioned above, the baselines encircling Taiwan Island and Penghu Islands were published at the end of 1998.34 The connecting lines between Taiwan and the Penghu islands are straight baselines, thus the Penghu Channel, which used to be a main international waterway, has become the internal waters of ROC. As to the islands adjacent to the mainland but under the control of Taiwan, the baselines around them have not yet been published. The apparent reason was that it concerned cross-Strait relations.35 Perhaps the hidden consideration was that the Jinmen– Mazu area had already been enclosed within the mainland straight baselines. Under the “one China” conception, it would not be necessary to publish again the different baselines for these islands since the publicizing of baselines is an act of sovereignty of an external nature rather than an internal matter regarding relations between the mainland and Taiwan. Furthermore, the status of the Taiwan Strait has also been affected by the promulgation, by both the mainland and Taiwan, of laws on the EEZ/continental shelf. According to these laws, an EEZ of 200 nm should be established. Thus there is no area of the high seas to be left in the Taiwan Strait afterwards. Although freedom of navigation and overflight is retained in the EEZ part of the Taiwan Strait, the Chinese from both sides across the Taiwan Strait have the right to exercise sovereign rights and jurisdiction over the natural resources in the Strait as well as over marine environmental protection and construction of artificial installations. With the establishment of an EEZ in the Taiwan Strait, the rights previously enjoyed by third states may be limited to some extent. The tension in cross-Strait relations is a result of the Chinese Civil War in the late 1940s. Though the relations between the mainland and Taiwan have been improved, the existing hostility has not yet been officially terminated. Because of the political tension between the two sides across the Taiwan Strait, both sides have designated a number of military prohibited zones within and/or close to the Taiwan Strait. Three military zones were designated by mainland China in the early 1950s: the Military Alert Zone in the Bohai and Yellow Sea; the Military Prohibited Navigation Zone around the mouth of the Qiantang River of Zhejiang Province and close to the Taiwan Strait; and the Military Operational Zone south of 27°N latitude which encompassed Taiwan and its environs.36 The lines to demarcate these zones were first publicly shown on the map attached to the Sino-Japanese (Non-Governmental) Fishery Agreement signed in April 1955.37 The Japanese fishing vessels may enter the Military Operational Zone but at their own risk. The 1985 revised map attached to the formal Sino-Japanese Fishery Agreement still

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indicated the existence of such zones.38 As for Taiwan, it also designated prohibited/restricted water areas in 1992 around Taiwan Island, Penghu Islands, Jinmen, Mazu, Wuqiu, the Pratas Islands, and Taiping Island in the South China Sea. The prohibited area for Taiwan and Penghu is 12nm and the restricted area 24 nm, while for other islands under ROC control, like Jinmen and Mazu, in the Taiwan Strait they are 4,000m and 6,000m, respectively.39 Mainland vessels are not allowed to enter these areas; if they do so, they are subject to compulsory measures taken by the ROC authorities. Mainland citizens entering without permission will be expelled with coercive measures.40 The presence of these prohibited/restricted zones in the Taiwan Strait is certainly harmful to the safety of navigation. Cross-strait cooperation: a Chinese Strait? After the LOS Convention and the Chinese establishment of an EEZ in the Taiwan Strait, the water area within the Strait has become Chinese waters no matter whether it is under PRC’s control or ROC’s control. This has therefore changed the previous international status of the Taiwan Strait. Foreign vessels now enjoy different navigational rights depending on the different regimes applicable in the waters of the Strait through which they pass. China’s position in UNCLOS III on straits used for international navigation is worth considering in order to understand whether PRC may tighten up the control of the Taiwan Strait in the future with the enforcement of its marine laws. As mentioned above, during UNCLOS III, PRC vehemently supported the straits states to reinforce their control over straits used for international navigation. Such a position might reflect PRC’s preference for maximizing coastal states’ control over straits within the territorial sea. Nevertheless, PRC expressed no view on the transit passage regime in the LOS Convention. The simple reason is that there is no such strait in the Chinese territorial sea. Suppose, however, that the Taiwan Strait were a strait used for international navigation as defined in the LOS Convention, PRC would presumably have opposed the transit passage. This can be seen from PRC’s position regarding the right of innocent passage for warships at UNCLOS III.41 It is not clear whether PRC will be able to tighten its control of the Taiwan Strait in the near future after its ratification of the LOS Convention and the establishment of its EEZ, though it may have the intention to do so. The EEZ/continental shelf regime established in the LOS Convention may give China, including the mainland and Taiwan, regulatory rights in the Taiwan Strait which are the same as the rights exercised by other coastal states in similar circumstances. The laws of EEZ/continental shelf of the mainland and of Taiwan provide sovereign rights and jurisdiction regarding the Taiwan Strait.42 In addition, these laws try to expand their rights to a maximum provided that such expansion is not contrary to the LOS Convention. Even some of the stipulations in the above laws are stricter than that provided in the LOS Convention. For example, marine scientific research in the EEZ or on the continental shelf, which is to be conducted by foreigners, should be approved by the Chinese authorities.43 What is of more concern in the context of the Taiwan Strait is the potential conflict between the freedom of navigation in the EEZ part of the Strait

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enjoyed by foreign vessels and the exercise of authority in the Strait by the Chinese authorities pursuant to the EEZ laws. One potential conflict is obvious: free navigation may be hampered by the Chinese enforcement of marine environmental protection regulations. This is typically illustrated by the 1992 incident relating to the Japanese shipping of plutonium. Singapore, Malaysia, and Indonesia opposed the passage of the ship through the Straits of Malacca and Singapore on the ground that the ship with a cargo of plutonium would pose a threat to their national security. In the end, the Japanese ship had to change its shipping route.44 The trend in the Taiwan Strait after the LOS Convention may be the further tightening of the national jurisdiction by both sides across the Taiwan Strait. The maritime powers may not be happy with such a tendency if it may impede freedom of navigation. On the other hand, despite the changed status of the Taiwan Strait, freedom of navigation should be preserved there. Thus some kind of self-restraint of exercise of jurisdiction would be welcome. This self-restraint is not new and has already been applied in East Asia. The Korea Strait is a typical example. The Korea Strait consists of the Eastern Channel, situated between the Japanese mainland of Honsu and Kyushu in the east and the Japanese islands of Tsushima in the west, and the Western Channel, situated between Tsushima in the east and the southeastern coast of the Korean peninsula in the west. The two waterways of less than 100nm total width connect the Sea of Japan to the northeast with the East China Sea to the southeast.45 The Korea Strait has been an international strait for a long time and all foreign vessels have the right to pass through the strait freely. After UNCLOS III, the transit regime for straits use for international navigation came into being, and both South Korea and Japan could have the right to put this regime into practice in the Korea Strait. However, the two countries preferred to limit their respective territorial seas to 3nm instead of 12 nm in the straits area, so that a high seas corridor was set up between them for international navigation so that the application of the transit passage is avoided. They have continued this practice since they ratified the LOS Convention and promulgated new laws on the territorial sea.46 Thus the Korea Strait will cause no problem as an international strait with free navigation as long as South Korea and Japan continue to limit their territorial seas in the strait area to 3 nm. This example shows that in some circumstances coastal states may restrain their exercise of jurisdiction, and even limit the sovereign rights to which they are entitled, for the benefit of international navigation. Self-restraint is also necessary for the Taiwan Strait in the respect of international navigation. In addition to the guarantee of international navigation in the Taiwan Strait, crossStrait cooperation is also necessary to manage the Strait and human activities there in a rational and effective way. In history the Strait area was once an arena of armed conflict between the Nationalists in Taiwan and Communists in the mainland. There was no contact between the two sides except hostilities. However, with a softening of the tense relations between the two sides, bilateral and peaceful intercourse often occurs. There may be a number of matters requiring bilateral cooperation, such as anti-smuggling, suppression of piracy, mineral resource development, fisheries management and conservation, and environmental protection. First, the conflicting use of fishery resources in the Taiwan Strait area is one of the most serious problems affecting cross-Strait relations. The Taiwan maritime police have

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shot at mainland fishermen who were fishing in the sea area close to the Taiwancontrolled islands.47 The incidents relating to alleged illegal fishing usually happen around the offshore islands such as Jinmen and Mazu under Taiwanese jurisdiction. Between 1993 and 1998, there were 563,800 illegal fishing vessels detected in those sea areas.48 The main reason for the conflict over fisheries in the Taiwan Strait lies in the fact that the Strait itself has two different jurisdictions (the mainland and Taiwan) and there is no line to demarcate the different jurisdictions. The Taiwan authorities designate prohibited and/or restricted water areas around the islands offshore the mainland ranging from 4,000 to 6,000m. The mainland vessels are not allowed to enter these areas, otherwise they are subject to compulsory measures in accordance with the 1992 Statute Governing the Relations between the People of the Taiwan Area and the Mainland Area.49 As to the mainland, there is no specific law prohibiting Taiwanese fishermen from fishing in the mainland-controlled water area. It is not clear whether the mainland authorities require Taiwanese fishermen to obtain fishing licenses in order to fish in the Taiwan Strait area.50 Since mainland China regards Taiwan as a part of it, the fishermen from Taiwan are assumed to have the same fishing rights as the mainland fishermen enjoy. Furthermore, mainland China publicized part of its baselines in 1996 encircling the offshore islands such as Mazu and Jinmen and their surrounding water areas under Taiwan’s jurisdiction as internal waters of China. In such a legal situation, the mainland will not recognize the prohibited/restricted areas designated by the Taiwanese authorities. Accordingly, the mainland will not issue regulatory notices for its fishermen to observe the Taiwanese restrictions. Since there is no clear demarcation of jurisdiction in the Taiwan Strait, conflicts arising from fishing operations are inevitable and the two sides across the Strait should sit together to negotiate an agreement on the management of fisheries in the Strait. Second, both sides across the Taiwan Strait should cooperate to combat crimes at sea. The criminal activities in the Taiwan Strait include, inter alia, illegal immigration, smuggling, and piracy or armed robbery at sea. Prevention and punishment of such crimes are necessary for the security of the coastal areas of the Strait as well as for the safety of navigation. As early as September 1990, the Red Cross Societies of both sides signed an agreement in Jinmen on mutual repatriation of criminals and criminal suspects. The Agreement resulting from the 1993 Wang-Koo Talks in Singapore reached a consensus that “topics that have been set down for discussion this year include repatriation of illegal immigrants, efforts to crack down on illegal activities at sea, the resolution of fishery disputes, the protection of intellectual property rights, and mutual assistance on judicial issues”.51 Due to the subsequent frustration in cross-Strait relations, the prospective agreement on prevention and suppression of maritime criminals has been blocked. Direct navigation between the two sides becomes the third area of cooperation. The mainland has advocated three direct links with Taiwan for years, but Taiwan refused to allow this. One of the three links is a direct link by sea. The delivery of raw materials and semi-finished products across the Taiwan Strait must currently pass through a third country or region due to the lack of direct transportation links between the two sides.52 The transportation detour is costly and time-consuming. The direct shipment across the Strait would save Taiwanese business a total of US$248 million each year.53 In the

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mainland’s view, shipping across the Taiwan Strait should belong to the rights of cabotage,54 which under international law is only limited to domestic shipping companies, and in the case of the Taiwan Strait to shipping companies of both sides, because mainland China regards Taiwan as one of its provinces. According to the Provisions Governing the Administration of the Direct Shipping between the Two Sides of the Taiwan Strait issued under Decree No. 6 of 1996 of the Ministry of Communications of the PRC, shipping between the two sides is defined as “domestic transportation under special administration”.55 Foreign shipping companies cannot operate shipping routes between the two sides of the Taiwan Strait unless the Ministry of Communications approves such operations.56 On the other hand, Taiwan established Kaohsiung as an offshore shipping center in 1995 to promote its Asia-Pacific Operations Center Plan as well as to cope with the need for direct transportation.57 Unlike the mainland, Taiwan allows foreign ships to sail between ports on both sides of the Strait. However, this is considered by the mainland as an attempt to internationalize the shipping lines in the Strait and thus to violate the “one China” principle.58 Since Taiwan still regards a direct link by sea as a potential threat to its security, there remain a number of difficulties to be overcome for fully direct transportation across the Taiwan Strait. The so-called “mini-three-links” between Fujian Province and Kinmen and Matsu, which allows direct shipping between these two offshore islands and the mainland,59 a positive step which was effective from 1 January 2001, does not, however, change the general picture. Fourth, cooperation between the two sides across the Taiwan Strait regarding petroleum exploration and exploitation is a recent matter. In previous years, despite the active oil exploration on the continental shelf in the East China Sea, mainland China avoided doing the same in the Taiwan Strait owing to the special relations of the two sides.60 It was only in July 1996 that the Taiwan Chinese Petroleum Corporation and the mainland China Ocean Petroleum Corporation signed an agreement on exploration of the Tainan Basin and Zhaoshan sunken area. Both sides approved it in April 1998.61 The agreement covers some areas in the Taiwan Strait. The two companies would invest as much as $20 million in a 50–50 joint venture.62 Since Taiwan is an oil-poor region and oil development is a key economic interest, cooperation in this field could be much easier than in other fields between the two sides across the Taiwan Strait. There should be no problem in establishing a joint development zone in the Strait for the purpose of oil exploration and exploitation. The final area of possible cooperation lies in marine environmental protection. The marine pollution in the Taiwan Strait also constitutes a serious concern for both sides of the Strait. The mainland has had a marine environmental protection law since 1982 and a series of regulations based upon it have also been promulgated for preventing and minimizing environmental hazards at sea, including vessel-source pollution, land-based pollution, dumping at sea, etc.63 Due to ineffective enforcement, the results with regard to the prevention and control of marine pollution have to date been far from satisfactory. The water quality in the East China Sea including the Taiwan Strait continues to deteriorate.64 In the laws of the territorial sea and of the EEZ passed by both sides, there are stipulations on pollution control in the territorial sea and/or the EEZ as well as regulations for anti-pollution enforcement.65 It is predicted that cross-Strait cooperation

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in this respect could also be easier than in other areas in which the matter of sovereignty and/or jurisdiction is involved. Concluding remarks As discussed above, the legal status of the Taiwan Strait has been changed by the new law of the sea as well as by the domestic law of China including the mainland and Taiwan. The part of the Strait that was formerly high seas is now a part of China’s EEZ subject to the Chinese jurisdiction, whether by the mainland or by Taiwan. The most complicated problem lies in the uncertain relations between mainland China and Taiwan. There are political differences between the two sides, which are not easy to resolve. The worst scenario in the Taiwan Strait would be a war or armed conflict if Taiwan were to declare independence. However, in peacetime, the door for cross-Strait cooperation for the management of the Strait is always open. Second, while the relationship between the two sides across the Taiwan Strait remains peaceful, the safety and freedom of navigation can be guaranteed. However, when the cross-Strait relationship becomes unstable, and even hostile, as illustrated by the 1996 missile tests launched by the mainland in response to Taiwan’s President Lee Teng-hui’s visit to the United States,66 then navigation through the Strait could be endangered. It is assumed that, in the case of hostilities, Beijing would define a “war zone” in the Taiwan Strait and direct neutral shipping in order to protect its right of innocent passage.67 The Taiwan Strait, though it is an international strait, is not a strait used by international navigation under the LOS Convention. While it is recognized as an important sea route for international shipping, where foreign vessels have free access to the EEZ part of the strait, it is not as critical as the Straits of Malacca and Singapore because outside the Strait, in the Pacific, there is a sea route of similar convenience for foreign vessels to navigate. In this context, the Taiwan Strait is more significant in the strategic sense rather than the navigational sense. How to regulate the straits in the EEZ is a new matter in the development of the law of the sea. With the extension of the sea areas within national jurisdiction, coastal states would like to maintain their control of the acquired areas as well as to make their jurisdiction “creep” beyond those areas as far as they can. This has already been illustrated by recent events regarding the management of fisheries in the high seas. The tendency of creeping jurisdiction has occurred in the Taiwan Strait as well. The ROC Law on the Territorial Sea stipulates that, for the part of the Taiwan Strait which is not territorial sea and which is used for international navigation, the ROC government may adopt decrees to regulate the transit passage of foreign vessels and aircraft with respect to: the maintenance of safe navigation and management of communications at sea; the prevention, reduction, and control of potential pollution; the prohibition of fishing; and the prevention and punishment of infringements of the ROC customs, fiscal, immigration, or sanitary laws and regulations, as well as concerning any act of loading, unloading, or transfer of commodities, money, or persons.68 This clearly indicates that the Taiwanese authorities would like to treat the Taiwan Strait as a strait used for international navigation under the LOS Convention and to apply the transit regime in the EEZ part

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there, while taking the stance that, in the territorial sea part, it will apply the innocent passage regime. Thus, the freedom of navigation, which can be exercised in the EEZ area by foreign vessels, is largely conditioned and restricted. Mainland China seems to have a similar position to Taiwan’s. During the 1996 missile tests crisis, when the United States sent aircraft carriers through the Taiwan Strait, the Chinese Foreign Ministry spokesman responded that the Taiwan Strait was an international strait, and foreign vessels could enjoy the right of innocent passage. However, he further commented that “in view of the situation in the Taiwan Strait, we are highly concerned with the issue concerning the passage of foreign warships in these waters”.69 As we know, innocent passage is only applicable to the territorial sea. Assuming that the US warships passed through the territorial sea part of the Taiwan Strait, then China’s statement sounded right, albeit contradictory to its domestic regulations, which require prior approval for foreign warships which want to pass through the Chinese territorial sea.70 If the above statement was referring to the EEZ part of the Strait, then it seems that China regarded the whole Strait as something equivalent to the territorial sea but more lenient regulations for the navigation of foreign vessels. One Taiwanese scholar even regards the Taiwan Strait as China’s historic waters.71 In the development of the law of the sea, some jurisdictional rights over straits like the Taiwan Strait can be justified and may be legitimized in the future. Some kinds of regulations and measures adopted by straits coastal states may be permissible for the purpose of safety of navigation such as: 1 traffic separation schemes in accordance with Articles 41 and 42(1)(a) of the LOS Convention; 2 measures on pollution control provided that such control is consistent with applicable international regulations under Article 42(1)(b); 3 regulations of prevention of illegal fishing; and 4 regulations on the control of loading, unloading, or transfer of any goods, currency, or person in contravention of the “customs, fiscal, immigration or sanitary laws and regulations”.72 A Taiwanese scholar also once advocated that China should establish the Traffic Separation Scheme and designate sea lanes in the EEZ part of the Taiwan Strait.73 Then it is assumed that the relevant stipulations in the ROC territorial sea law do not deviate greatly from what is permitted and/or will be permitted under international law. It should also be pointed out that, with the demarcation of the baselines by both sides across the Taiwan Strait and their extension of the territorial seas and contiguous zones, there is only a narrow belt in the Strait where foreign vessels can enjoy the freedom of navigation in the context of the LOS Convention. On the other hand, we should bear in mind that any excessive control of the Taiwan Strait, which would hamper the freedom of navigation, will also trigger some possible negative response from maritime powers. There should be a balance between the exercise of coastal jurisdiction and the common interest of the world community in navigation. In this context, the self-restraint of China regarding the control of the Taiwan Strait should be preserved.

9 Crackdown on piracy in the South China Sea and prospects for regional cooperation Piracy at sea: a global concern Piracy in the South China Sea is not new. It is recorded that as early as the 14th century, piracy had already existed in the waters of Southeast Asia.1 During Zheng He’s seven voyages to the Indian Ocean in the Ming Dynasty (1405–33), he undertook some actions to suppress pirates in the South China Sea and Southeast Asia for the purpose of keeping peace and bringing order in the region.2 In the late 20th century, the South China Sea was categorized as one of the most active piracy zones in the world. In mid-1992 the Singapore National Shipping Association (SNSA) listed seven key “pirate-prone areas” in Southeast Asia, and three of them were located in the South China Sea.3 Recently, piracy incidents increased considerably in the South China Sea. The figure in 2000 showed that piracy in the region accounted for 65 percent of the total worldwide number. The incidents in the South China Sea increased from 120 in 2001 to 140 in 2002.4 In fact, such incidents triggered a serious concern with potential increasing acts of piracy in Southeast Asia in general and in the South China Sea in particular. The most famous case in the South China Sea is the Petro Ranger case. This oil tanker mysteriously went missing in the South China Sea for several days and suddenly reappeared off the coast of Hainan Island. It was proven that the vessel was hijacked by a group of Indonesians in waters adjacent to Malaysia and Vietnam on 16 April 1998. The Chinese police arrested the hijackers on 26 April 1998. After the initial investigation, the Chinese public security authority let the vessel go and two days later released the crew. The South China Sea is bounded on the north by China, on the east by the Philippine archipelago, on the south by Kalimantan including East Malaysia and Brunei, and on the west by the Malay Peninsular and Vietnam. The complicated topography and the vast size of the sea may encourage pirates to commit their crimes more frequently than in other regions and locations. It is acknowledged that effective law enforcement is extremely difficult in the South China Sea because of its vastness (more than 200nm wide) and due to the fact that it is dotted with numerous uninhabited islands to which pirates can retreat.5 It is said that the Natunas and Spratly island groups are pirate havens.6 The South China Sea is part of the “choke points” in the sea lanes of communications in the world. Shipping is of utmost importance to the world economy, carrying well over 90 percent of world trade.7 The security of navigation of vessels through these sea lanes is of vital interest for East Asian countries. More than half of the world’s merchant fleet capacity sails through the straits of Malacca, Sunda, and Lombok and the South China Sea.8 More than 10,000 vessels of greater than 10,000 dwt move southward through the

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South China Sea annually, with well over 8,000 proceeding in the opposite direction.9 In addition, with the fast growth of the economy in East Asia, the recent trend to greater intra-Asian trade (relative to trade with Europe and North America) results in more shipping in the littoral waters of Southeast Asia and the South China Sea.10 Thus the sea routes in the South China Sea are usually regarded as economic lifelines for East Asian countries, particularly for Japan. For this reason, it is obvious that acts of piracy in the South China Sea constitute a great threat to the security of navigation as well as to the safety of vessels and crews. Piracy is traditionally regarded as hostis humani generis, the enemy of the human race. They commit acts of murder, robbery, plunder, rape or other villainous deeds at sea, cruelly against humanity. Because of the nature of the offense, it is punishable wherever encountered.11 Early references to it can be found in Justinian’s Digest in AD 529, in King John’s Ordinance of 1201, and in numerous European laws from then on.12 The law of piracy is directed to eliminate and suppress all acts of piracy in the world. Since piracy is sui generis, the law is to some extent very special in comparison with other laws. It embodies two parts, i.e. the international and the domestic. Piracy under international law Since piracy is a crime with international character, it is governed under international law. The term “piracy” is usually referred to a broad range of violent acts at sea. Article 101 of the United Nations Convention on the Law of the Sea (the LOS Convention) defines it as: Piracy consists of any of the following acts: (a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed to: (i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State; (b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a ] pirate ship or aircraft; (c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b). The above definition is copied verbatim from the 1958 Geneva Convention on the High Seas,13 which actually codified customary international law on the point. It consists of five elements: 1 the acts complained against must be crimes of violence such as robbery, murder, assault, or rape; 2 committed on the high seas beyond the land territory or territorial sea, or other territorial jurisdiction, of any State; 3 by a private ship, or a public ship which through mutiny or otherwise is no longer under the discipline and effective control of the State which owns it; 4 for private ends; and

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5 from one ship to another so that two ships at least are involved.14 However, the definition provided for in the LOS Convention has limitations. First, it defines “piracy” as only for “private ends”, though it is argued that such wording could be given a wider interpretation.15 For instance terrorist acts at sea for political ends are generally excluded. That is why after the Achille Lauro incident in 1988,16 the world community needed the Convention on the Suppression of Unlawful Acts against the Safety of Maritime Navigation (the Rome Convention), which will be discussed below. Second, according to the above definition, piracy juris gentium presupposes that a criminal act be exercised by passengers or the crew of a ship against another ship or persons or property on board. The two-vessel requirement is an ingredient of the crime of piracy, unless a criminal act occurs in terra nullius.17 Thus “internal seizure” within the ship is hardly regarded as an “act of piracy” under this definition.18 Because of these limitations and other alleged deficiencies in the definition, some scholars have suggested revising this definition.19 It may be recalled that in 1970 before UNCLOS III, the International Law Association suggested a definition on piracy as “unlawful seizure or taking control of a vessel through violence, threats of violence, surprise, fraud or other means”,20 but it was not considered in UNCLOS III. In addition, since the above definition is only applicable to the acts of piracy in the high seas or places outside states’ jurisdiction,21 it has a geographic limitation and could not cover the whole piratical situation in the South China Sea. To remedy these limitations, IMO has attempted to divide acts of piracy into two categories by geographical and legal division of maritime zones: piracy on the high seas is defined as “piracy” under the LOS Convention definition, while acts of piracy in ports or national waters (internal waters and territorial sea) are defined as “armed robbery against ships”.22 However, we may note that the shortcoming of such a division is obvious: piracy is not equivalent to armed robbery and it may also include other violent acts such as murder, assault, and rape. The Piracy Reporting Centre of the International Maritime Bureau of the International Chamber of Commerce (IMB-PRC) suggested a definition of piracy “as an act of boarding any vessel with the intent to commit theft or any other crime and with the intent or capability to use force in the furtherance of that act”,23 which seems to be accepted by the shipping industry but has not been recognized both in international law and in domestic law. Nevertheless, it bears some value for reference when the definition of piracy in international law is considered. International law has established an obligation on states to cooperate in suppression of piracy and grants states certain rights to seize pirate ships and criminal suspects. Article 100 of the LOS Convention provides that “All States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State”. Article 105 further provides that On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon penalties to be imposed, and may also determine the action to be

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taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith. Only warships or military aircraft or similar governmentally authorized ships or aircraft have the power to seize a pirate ship or aircraft in the high seas. The problem of the EEZ, originally being part of the high seas, has compounded the issue of piracy. Since the provisions in the LOS Convention are fully and unchangeably copied from the 1958 Convention, it may query whether these clauses are still applicable to the EEZ, as residual rights and/or obligations in question, despite the changed legal status of the latter. The provisions are ambiguous and controversial, particularly in the context of Article 86 of the Convention.24 In spite of such ambiguity, it is meaningful to note that similar residual rights and/or obligations have been retained in the LOS Convention formerly belonging to the freedom of high seas, such as the freedom of navigation in the EEZ. Article 58 of the LOS Convention expressly provides that the piracy provisions are applicable to the EEZ in so far as they are not incompatible with the provisions on the EEZ and in compliance with laws and regulations adopted by a coastal state. Since piracy is closely related to the safety of navigation, states could assume a corresponding duty or right to suppress piracy in the EEZ of other states provided that anti-piracy measures taken by such states are inadequate. The problem is more exacerbated when a certain coastal state is unable to handle effectively acts of piracy occurring within its EEZ. For such reason, it is argued that the piracy provisions in the LOS Convention should apply to the EEZ in so far as they are not incompatible with the rights of coastal states set forth in the LOS Convention: Since enforcement against a pirate, in normal circumstances, could not be viewed as impinging upon any rights reserved to the coastal State, the law of piracy in the EEZ must be viewed as identical to that applying beyond.25 The above issue is important to the South China Sea since most, if not all, of the sea areas will be within national jurisdiction after the necessary maritime boundary delimitation between/among the interested coastal countries. The piracy provisions in the LOS Convention, once they become the basis for regional cooperation combating piracy, are applicable to the EEZ in the region. Second, it is recognized that suppression of piracy within national jurisdiction is a duty and obligation of a coastal state on behalf of the interest of the entire international community as well as for its own interest. Since the EEZ is now within the national jurisdiction of the coastal state, the degree and scope of the applicability of the piracy provisions in the LOS Convention may differ from their application to the high seas. The key question lies in the jurisdictional aspect. The view expressed by Lauterpacht may be insightful. He once said that If a pirate is chased on the open sea and flees into the territorial maritime belt, the pursuers may follow, attack and arrest the pirate there; but they must give him up to the authorities of the littoral state.26 Accordingly, foreign warships have the right of hot pursuit within the EEZ of a coastal

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state and the right to arrest piratical vessels there, but the coastal state may have the right to request the state which has exercised the rights in respect of suppression of piracy to hand over the pirates for trial in the coastal state. International efforts As mentioned above, the clauses regarding piracy in the LOS Convention have some limitations. Based only on those provisions, the suppression of piracy may not be fully effective, thus other international mechanisms and arrangements are needed. IMO has been playing an active role in combating piracy at the international level. It first addressed the problem of modern piracy in 1983 and adopted a resolution on “measure to prevent acts of piracy and armed robbery against ships”, which urged Governments to take, as a matter of highest priority, all measures necessary to prevent and suppress acts of piracy and armed robbery against ships in or adjacent to their waters.27 The Maritime Safety Committee (MSC), a subordinated body of IMO, adopted its circular on “guidance for the use of radio signals by ships under attack or threat of attack from pirates or armed robbers”, which recommends that when shipboard personnel detect pirates before they have boarded the ship, a piracy/armed robbery attack message should be sent through the International Maritime Mobile Satellite Organization (Inmarsat) or Digital Selective Calling (DSC) equipment on distress and safety frequencies, providing the ship has not been ordered to maintain radio silence. When radio silence has been ordered by pirates, the circular recommends that the order should be complied with to avoid physical violence or death to the crew.28 In March 1994, IMO sent a fact-finding mission to China, the Philippines, and Hong Kong to inspect the piracy problem in the South China Sea.29 Under the auspices of IMO, the 1988 Rome Convention,30 a complementary legal instrument to the LOS Convention, was adopted. In IMO’s view, this convention is “a relevant treaty” for the suppression of piracy.31 It has filled a loophole left by the LOS Convention in its definition of piracy, and covered the unlawful acts for political ends. The restrictive two-vessel requirement is no longer a necessary element in the Rome Convention. The Convention aims to punish any person who commits an offense by unlawfully and intentionally seizing or exercising control over a ship by force or threat thereof; or performing an act of violence against a person on board a ship if that act is likely to endanger the safe navigation of that ship; or destroying a ship or causing damage to a ship or to its cargo which is likely to endanger the safe navigation of that ship; or placing or causing to be placed on a ship, by any means whatsoever, a device or substance which is likely to destroy that ship; or destroying or seriously damaging maritime navigational facilities or seriously interfering with their operation; or injuring or killing any person, in connection with the above offenses.32 Each contracting party should take necessary measures to establish its jurisdiction over the above offenses or extradite the offender or the alleged offender to the other contracting party who has the corresponding jurisdiction. The Convention applies to the offenses committed in the ship which is navigating or is scheduled to navigate into, through, or from the waters beyond the outer limit of the territorial sea of a coastal state or applies when the offender or the

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alleged offender is found in the territory of a contracting party other than the previous case. Accordingly, it could apply within the vast sea areas of the South China Sea including the EEZ areas of the coastal states beyond the 12-nm territorial seas. The Rome Convention applies to all maritime terrorist acts, whether private or political. In this context, piracy is naturally subject to the convention. In addition, the significance relating to the piracy in the South China Sea lies in the aspect that if terrorist acts would not be punished and suppressed under the LOS Convention, they are still under the suppression of the Rome Convention. This means that any maritime terrorist act cannot escape justice. On the other hand, in comparison with the LOS Convention in regard to piracy, it may be less meaningful and only can be a supplementary rather than a master convention for the South China Sea. The other sister instrument is the 1988 Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf (the Rome Protocol),33 which was adopted at the same time as the Rome Convention and contains similar provisions. It is relevant to the South China Sea in the context that the sea is rich in oil and gas and coastal states have already launched exploitation projects either by themselves or jointly with foreign oil companies. It is said that offshore oil and gas installations are potential targets of piracy.34 In case any terrorist or piratical attack should be aimed against oil platform(s) or artificial islands located in the South China Sea, it could be suppressed under this protocol. The United Nations Conference on Trade and Development (UNCTAD) has also played some role in suppressing piracy at sea. Its Committee on Shipping adopted in 1982 Resolution 49 (X) whereby it decided to establish an Ad hoc Intergovernmental Group to consider “means of combating all aspects of maritime fraud, including piracy”.35 Traditionally, piracy was prosecuted and punished under municipal laws of nation states. One of the reasons is the fact that there was no international criminal tribunal to administer international criminal justice against private individuals.36 However, the recent trend has shown that there is a necessity to establish some kind of international judiciary to bring crimes of international concern for trial. The International Criminal Tribunals for the Former Yugoslavia and for Rwanda are just two recent examples. What is more significant is the newly established International Criminal Court (ICC).37 The establishment of the ICC opens a new era for the suppression of piracy at the international level. It is the following conviction of establishing the ICC that the most serious crimes of concern to the entire world community must not go unpunished and their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation. Crimes against humanity become one category of crimes of international concern over which the court has jurisdictional competence. Acts of piracy can be put under this category. In addition, the jurisdiction of ICC may be expanded in the future to cover other crimes of international concern, such as maritime terrorism that is more specifically related to piracy. There is no doubt that the establishment of the ICC and its judicial activities will enhance the effective prosecution and suppression of piracy, just as its Statute so provides.

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National efforts The law of piracy at the national level is different from the law of piracy at the international level in that in the case of municipal crime the jurisdiction is reserved to the nation state, whereas in the case of international crime all nations may seize, try, and punish the offense.38 The coastal states have the sole jurisdiction over the acts of piracy committed within their internal waters and/or territorial sea. Thus jurisdiction and enforcement in the above sea areas differ from those exercised in the EEZ or the high seas. The domestic law of piracy can be traced back to early times. The English act on piracy in 1698 was perhaps the first domestic law specifically addressing the issue of piracy with the aim of the more effectual suppression of piracy.39 Since then, other countries, like the United States, Germany, and France, enacted similar laws.40 Some countries have no specific laws of piracy, but they have piracy provisions in their penal codes. For example, the Criminal Code of Canada provides that “every one who commits piracy while in or out of Canada is guilty of an indictable offence and liable to imprisonment for life”.41 Second, in domestic laws, states define acts of piracy to meet their own different needs. There is no uniformity of definition in the municipal legislation of different states.42 Some even contain no definition.43 Such phenomenon bears some passive ramifications for enforcing the law of piracy in the South China Sea. In terms of laws on piracy in the countries bordering the South China Sea, they are rather underdeveloped in comparison with Western countries. The country which specifically put “piracy” under its Penal Code is the Philippines. Accordingly, the death penalty will be imposed upon those who commit piracy.44 As to other countries, it seems that there is no specific mention of piracy in their criminal laws, but they can rely upon some other relevant laws and regulations to control and punish piracy in the South China Sea. Take China as an example. In China’s legal system, there is no such definition as “piracy”. According to its recently revised Criminal Law, certain crimes, particularly some crimes of endangering public security, are relevant so that piracy can be punished under its law.45 In addition, this law provides that For the crimes defined in international treaties, concluded or acceded to by the People’s Republic of China, which are under the jurisdiction of the People’s Republic of China within the framework of the treaty obligations, this Law shall apply.46 It thus establishes the universal jurisdiction of China over some international crimes. China has ratified the LOS Convention, the Rome Convention, and the Rome Protocol.47 For that reason, China is obliged to arrest and suppress piracy at sea and should impose punishment upon it according to its law. In addition, some other Chinese laws in respect to maritime affairs contain some stipulations relevant to piracy, such as the 1992 Law on the Territorial Sea and the Contiguous Zone48 and the 1998 Law on the Exclusive Economic Zone and the Continental Shelf.49 The provisions in the above laws concerning “security”, “safety”,

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and “hot pursuit” are relevant. It may be concluded that China’s law of piracy is immature and needs much improvement, in comparison with those of other countries. In terms of enforcement, China is also weak in practice. It is reported that people in Chinese military uniforms intercepted passing ships in the South China Sea and forced them to sail to ports in Southern China, which had been used to shelter hijacked ships. It is unacceptable that China, a major maritime nation, has failed to take action against this type of criminal activity where local government employees are clearly involved.50 Under some international pressure, however, China has pledged to strengthen its efforts in the crackdown on maritime crimes within its jurisdictional waters after the Petro Ranger incident.51 In some countries, despite the lack of specific legislation, their enforcement is recorded very well. For example, Singapore has had an excellent record in keeping the problem of piracy to nil in its own territorial waters; Malaysia also set up four anti-piracy commando units to patrol its busy sea lanes, and historically the Malaysian courts have tried several piracy cases.52 It is generally admitted that unilateral enforcement to combat piracy in the South China Sea is inadequate. That is one of the main reasons why piracy has become a frequent assault there. One difficulty lies in the fact that many piratical attacks are not reported. The number of attacks unreported may constitute half, and in some cases 90 percent, of the total attacks. There are a number of reasons for this.53 Usually in the case of personal injuries, robbery of necessary equipment on board which is related to seaworthiness, large sums of money or property, such piratical acts will be reported.54 Regional cooperation After the LOS Convention, the water areas under national jurisdiction have been greatly expanded. On the one hand, such expansion gives coastal states additional sovereignty or sovereign rights over their respective jurisdictional waters, but on the other, it also brings difficulties in enforcement within these areas, particularly in regard to piracy. It may pose a big problem for some small countries which own vast water areas but lack an effective enforcement mechanism. As is pointed out, pirate attacks often occur in areas where law enforcement response is either non-existent or negligible.55 Second, the LOS Convention created the EEZ and continental shelf regimes. Accordingly, the high seas have shrunk upon the expansion of territorial seas and EEZs, and the free mobility area in the high seas to control piracy is getting smaller. The question then arises whether the patrol vessels can freely enter into the EEZ areas of other states. Although the provisions in the LOS Convention regarding piracy are applicable to the EEZ, coastal states may not be happy to see warships or governmental vessels of other countries pursuing and arresting piracy vessels in their EEZs where they have sovereign rights and jurisdiction. The above zoning provisions of the LOS Convention may thus complicate the enforcement of the law of piracy. Potential conflict may arise and some kind of coordination and cooperation between/among states concerned is necessary. When a coastal state has good reason to believe that a foreign ship has violated its laws and regulations, it may exercise the right of hot pursuit. This can be directed to suspected

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vessels of piracy. Hot pursuit can begin from internal waters, territorial seas and the contiguous zone, or even in the EEZs. The Chinese laws on the territorial sea and EEZ authorize Chinese warships or governmental vessels to exercise this right.56 However, the right of hot pursuit ceases as soon as the ship pursued enters the territorial sea of its own state or of a third state.57 For that reason, in the case where a piratical attack occurs within territorial seas, and then the attackers flee to the territorial sea of another state, it is suggested that such a situation requires a regional cooperative arrangement between the affected states to coordinate their enforcement policies.58 Another serious matter relating to the suppression of piracy is that many pirates have been released unpunished under domestic law after the hijacked ship has been detained. Such a circumstance has been reported in Southern China.59 For that reason, in the Petro Ranger incident, the Royal Malaysian Police considered requesting the Chinese Government to extradite the pirates to stand trial in Malaysia.60 However, extradition requires an agreement between the two countries concerned, or may be executed under an international treaty to which both countries concerned are parties. In the South China Sea, different sea zones are established with the ratification of the LOS Convention by the coastal countries. Therefore, the states concerned have the right as well as the treaty obligation to enforce relevant laws and regulations within their respective jurisdictional areas, including the suppression and control of acts of piracy. As Sundberg opines, The more important obligation to fight piracy is not the one relating to the high seas, but the one relating to the states’ territorial waters. To suppress piracy within a state’s territorial jurisdiction is considered to be an international law obligation, not based upon the Geneva Convention but on general international customary law.61 Second, as to the sea areas beyond territorial seas of the countries bordering the South China Sea, a regional cooperation is more important than within the territorial sea. According to some statistics, the average distance of the piratical attacks from shore was 11.55nm in Indonesia, 68 nm in Northeast Asia, and 94.4 nm in the South China Sea.62 It indicates that most of the piratical attacks occurring in the South China Sea are within the EEZ and/or high sea areas. Thus the provisions on piracy in the LOS Convention are clearly applicable. Perhaps the main obstacle to regional cooperation in the South China Sea is the overlapping territorial claims for the islands there. The Spratly Islands are claimed by five adjacent countries, i.e. Brunei, China including Taiwan, Malaysia, the Philippines, and Vietnam, and the territorial dispute has not yet been resolved. Even if the territorial dispute had been solved, there are still boundary delimitation issues. As is pointed out, disputes over maritime boundaries make accurate delineation of enforcement responsibility difficult, if not impossible.63 On the other hand, we must realize that while the dispute is an obstacle, it can also be a window of opportunity for cooperation, since under such complicated circumstances, cooperation is the only way for the regional security of navigation. That is why in the “track two” conferences on the South China Sea sponsored by Indonesia, on the agenda was the safety of navigation and suppression of

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piracy as one of the areas of possible cooperation among the interested countries bordering the South China Sea.64 The recent proposal of joint development for the disputed areas in the South China Sea may have some instructive effect on the cooperation in piracy suppression. The relevant ASEAN countries together with China do not reject such a proposal and, on the contrary, they have considered it seriously. Such a proposal is helpful for piracy control in the South China Sea. Or alternatively, the successful cooperation in piracy control may facilitate the joint development of the natural resources in the South China Sea. Significantly, in November 2002 China and ASEAN countries signed the Declaration on the Conduct of Parties in the South China Sea and pledged to explore or undertake cooperative activities in the South China Sea including “combating transnational crime, including but not limited to trafficking in illicit drugs, piracy and armed robbery at sea, and illegal traffic in arms, pending a comprehensive and durable settlement of the disputes in the South China Sea”.65 The states concerned are prepared to work out implementing plans to realize the goals they set forth in the Declaration. Environmental concern also has some relevance to piracy. It is possible that piratical attacks which are directed against oil tankers could cause oil spill disasters at sea. The potential for a catastrophic accident involving one or maybe more vessels carrying environmentally damaging cargoes is huge. Also, many piratical attacks took place in areas of great natural beauty or of international environmental significance.66 According to one statistic, over 25 percent of the pirate attacks recorded in Violence at Sea database are against tankers of some sort.67 Potential environmental disaster resulting from piratical attacks has become a growing concern in the world community.68 In this context, the control of piracy is necessary and helpful for marine environmental protection in the South China Sea. Around the South China Sea, there is some basis for cooperation against piracy. The tripartite cooperation amongst Indonesia, Malaysia, and Singapore has already begun. The three countries have conducted coordinated anti-piracy patrols off their waters in the Malacca and Singapore Straits and their efforts have resulted in a significant reduction of piracy in that region.69 However, after the financial crisis in 1997 and political instability in Indonesia, this mechanism is not as frequently used as before.70 New initiatives have been made in 2004 to further strengthen the fight against piracy and maritime terrorism. Second, whereas it can provide some good experiences and lessons for cooperation in the South China Sea, it has limitations in playing a more effective role and geographically it has little impact upon piracy suppression in the South China Sea. It is interesting to note that the decrease in the number of attacks in the Singapore area was coincidental with an increase in piracy in the South China Sea during the same period between 1989 and 1993.71 Another basis is the IMB Piracy Reporting Center which was established in Kuala Lumpur on 1 October 1992 and acts as a focal point for the industry and liaisons with the law enforcement authorities in the region. Its functions are: 1 to receive reports of suspicious or unexplained craft movements, boarding and armed robbery from ships and to alert other ships and law enforcement agencies; 2 to issue regular status reports of piracy and armed robbery via broadcasts on InmarsatC through its SafetyNET service; and

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3 to collate and analyze all information received and to issue consolidated reports to interested bodies, including IMO.72 In addition, the Center will provide post-incident support in the event of a piratical attack and publish a Regional Piracy Guide which will provide background information concerning piracy and armed robbery, preventive advice, operational reporting procedures, and post-incident management, including the securing of evidence and contact points.73 Though a liaison and information distributing institution, it may help establish the regional mechanism for piracy suppression or it may expand its functions to have some kind of implementing power to be agreed upon by the states concerned, such as organizing investigations of piracy incidents and training law enforcement personnel in East Asia. Some existing models in other regions are conducive to the establishment of the mechanism for the control and suppression of piracy in the South China Sea. The European Convention on the Suppression of Terrorism, adopted on 27 January 1977, provides that terrorist acts are not political offenses and they are extraditable between contracting states.74 The contracting state should take necessary measures to establish its jurisdiction over the terrorist offense in the case where the suspected offender is present in its territory and it does not extradite him after receiving a request for extradition from a contracting state which also has jurisdiction.75 In implementing the European Convention, a separate Agreement Concerning the Application of the European Convention on the Suppression of Terrorism among the Member States of the European Communities was also concluded.76 The second existing model is a legal and institutional arrangement among the American countries. The 1971 Organization of American States Convention to Prevent and Punish Acts of Terrorism Taking the Form of Crimes against Persons and Related Extortion that Are of International Significance, in Article 2, requires that the listed offenses: kidnapping, murder and other assaults on life or personal integrity of those whom the State has to give special protection according to international law, as well as extortion in connection with those crimes, shall be considered “common crimes of international significance regardless of motives”.77 It contains the similar “prosecute or extradite” clause as in the Euro-pean Convention. The above conventions have two common characteristics: the elimination of the political offense exception, and the obligation to extend jurisdiction to meet the aut dedere aut judicare obligation.78 Though these two regional arrangements are concerned with combating terrorism, some elements contained therein can be considered in the future cooperation for the suppression of piracy in the South China Sea. What is more important is the framework established by these legal documents, which is also needed as a basis for the South China Sea cooperation. The most significant development recently is the ARF Statement on Cooperation against Piracy and Other Threats to Maritime Security which was issued on 19 June 2003. It is acknowledged that piracy and armed robbery against ships has been a significant problem in the Asia-Pacific region and effective responses require “regional maritime security strategies and multilateral cooperation in their implementation”.79 Encouraged by

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this, more South China Sea countries including Brunei and the Philippines joined the Rome Convention in 2004. Although there is no establishment of an anti-piracy regional mechanism in the South China Sea, some aspects are predictable. If all the countries bordering the South China Sea are willing and intend to agree to form some kind of regional mechanism on suppression of piracy, then they need a framework agreement as a guiding code to negotiate and implement necessary concrete measures. Some of the elements in other existing relevant treaties, whether regional or worldwide, can be borrowed for such a framework agreement. When the states bordering the South China Sea intend to negotiate an agreement, they could do it easily. However, comparatively speaking, the implementation task would be more painstaking. The question is this: Can the countries concerned form a joint patrol team for the purpose of safety of navigation and suppression of piracy, just like the tripartite team in the Straits of Malacca and Singapore, or should the task of patrolling be assigned to each country by turn; or should the South China Sea be divided into several functional patrol areas, with each area patrolled by a regular team either jointly or individually? Unilateral actions to be taken by one state within the sea area of another state to pursue and arrest pirates, even with justifiable reasons, would cause potential conflicts between the two countries. Thus cooperation should prevail and possible foreign naval intervention should be worked out through regional cooperation so that abuse, if it should occur, could be immediately corrected.80 The LOS Convention in its Article 123 requires the countries bordering the South China Sea as a semi-enclosed sea to cooperate with each other in the exercise of their rights and in the performance of their duties under the LOS Convention. This provision should be regarded as a principal basis for cooperation in the suppression of piracy. The piracy in the South China Sea is a common concern for all the countries bordering thereto. The effective suppression and control of piracy can benefit not only the adjacent countries but also the entire world community. A regional cooperation among all the countries concerned can play an active and effective role in suppressing piracy, initiate and coordinate the anti-piracy activities to be sponsored by states, either individually or jointly, resolve potential jurisdictional conflicts arising from the enforcement of law of piracy in the South China Sea, to facilitate and safeguard navigation in the South China Sea. Although there is a long way to go to reach a workable regional cooperation at the governmental and law enforcement level, it is believed that the countries bordering the South China Sea will continue their efforts. In conclusion, let me quote Gentili, a great Italian jurist in the 16th century: Pirates are common enemies, and they are attacked with impunity by all, because they are without the pale of the law. They are scorners of the law of nations; hence they find no protection in that law. They ought to be crushed by us…and by all men. This is a warfare shared by all nations.81

Part V Neglected issues in the law of the sea

10 Maritime historic rights and China’s practice On 26 June 1998, China (PRC) officially promulgated the Law on the Exclusive Economic Zone and the Continental Shelf (hereinafter referred to as the EEZ Law), of which Article 14 provides that “the provisions of this Law shall not affect the historic rights enjoyed by the People’s Republic of China”.1 This provision gives rise to several legal issues. What is meant by historic rights? How are they defined in international law? Where can China enjoy its historic rights? What are the consequences of such “historic rights” in the context of potential maritime conflicts between China and its neighbors? Are such historic rights claimed by China valid in international law? The present chapter attempts to answer these questions. Historic rights in international law In studying the issue of historic rights, one inevitably encounters two major difficulties: (1) this issue has never been thoroughly researched in international law; and (2) there are a number of legal terms in the historical context, such as “right”, “title”, and “consolidation”2 which may cause confusion. It is even more complicated when one tries to explore socalled historic rights in the maritime area, particularly when the term is used along with other related terms such as historic waters and historic bays. Despite all these difficulties, such studies are important as a contribution to the development of international law. Meanwhile, one thing has to be pointed out: whereas the term historic rights refers not only to maritime but also to land areas, the present chapter limits it, to a large extent, to the maritime domain without any prejudicial consideration of its application to the land domain. The term historic rights is usually related to the acquisition of territory in international law. There is no established definition of the term under international law. However, some scholars have attempted to explain it in various ways. For example, according to Blum, the term “historic rights” denotes the possession by a State, over certain land or maritime areas, of rights that would not normally accrue to it under the general rules of international law, such rights having been acquired by that State through a process of historical consolidation.3 Blum further explains that historic rights are a product of a lengthy process comprising a long series of acts, omissions and patterns of behavior which, in their entirety, and through

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their cumulative effect, bring such rights into being and consolidate them into rights valid in international law.4 According to other scholars, the term historic rights is used to indicate “those rights which a state has acquired vis-à-vis one or more other states by effectively exercising those rights, with the acquiescence of the state or states concerned”.5 The second definition is simply identical with the definition of “historic waters” given below when it is used in the context of maritime zones. It can be seen, therefore, that the concept of historic rights has a close relationship with maritime zones from its emergence. The evolution of the concept The concept of historic rights originated in the maritime context, particularly relating to bays and gulfs. Historic bays are defined as “those bays over which a coastal nation has traditionally asserted and maintained dominion with the acquiescence of foreign nations”.6 They are one form of the historic waters. As Bouchez put it, “[h]istoric bays are a species of the genus of historic waters. In other words, historic waters are the category of which historic bays form a part”.7 Another definition is given by the Japanese delegation to the United Nations, where “the term ‘historic bays’ means those bays over which coastal State or States have effectively exercised sovereign rights continuously for a period of long standing, with explicit or implicit recognition of such practice by foreign States”.8 As Strohl explains, the reason why some bays are historic bays is “because the littoral States claiming title to them have been generally considered to enjoy the title through long, uninterrupted and peaceful possession, and sometimes by reason of some relatively ancient symbolic act of claim which has gone uncontested”.9 Despite several suggestions made by legal scholars, learned societies, and international organizations, the world community failed to come up with a workable definition of what an historic bay is,10 and therefore, “there is no definition of ‘historic bay’ in any of the LOS conventions”.11 Due to the fact that historic rights are claimed not only in respect of bays, but also in respect of maritime areas which do not constitute bays, such as the waters of archipelago and the water area lying between an archipelago and the neighboring mainland; historic rights are also claimed in respect of straits, estuaries and other similar bodies,12 the new term historic waters is gradually emerging to embody, if not to replace, the term historic bays. Like the concept of historic bays, the concept of historic waters is not definitive in international law. A scholarly definition was offered by Bouchez: [h]istoric waters are waters over which the coastal State, contrary to the generally applicable rules of international law, clearly, effectively, continuously, and over a substantial period of time, exercises sovereign rights with the acquiescence of the community of States.13

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In international judiciary practice, the ICJ offered a definition of historic waters in the Fisheries Case: “[b]y ‘historic waters’ are usually meant waters which are treated as internal waters but which would not have that character were it not for the existence of an historic title”.14 According to O’Connell, there are three types of waters that could be considered historic waters: (1) bays, claimed by states which are “greater in extent, or less in configuration”, than standard bays; (2) areas of “claimed waters linked to a coast by offshore features but which are not enclosed under the standard rules”; and (3) areas of claimed seas which “would, but for the claim, be high seas because not covered by any rules specially concerned with bays or delimitation of coastal waters” (maria clausa).15 Accordingly, the concept of historic waters is usually applicable to bays and gulfs. Once established as historic waters, the waters in question are then regarded as internal waters. There may be exceptions to this, for example, some historic waters claimed by states are not bays or gulfs, but open seas, and might not therefore be regarded as internal waters. The United Nations International Law Commission (ILC) discussed the concept of historic waters in the 1950s, and in 1962 the UN Secretariat, upon the request of the ILC, prepared a study on the juridical regime of historic waters, including historic bays. The study examined the elements of title to historic waters, the issues of burden of proof, the legal status of waters regarded as historic waters, and the settlement of disputes. However, it did not give a conclusive concept of historic waters, nor criteria nor standards by which this concept could be applied.16 So the theoretical controversy over the concept of historic waters has not yet been resolved. Because of the controversial nature of this issue, the Third UN Conference on the Law of the Sea (UNCLOS III) simply dropped it from the agenda, leaving only a few tantalizing references in the 1982 United Nations Convention on the Law of the Sea (LOS Convention). Generally speaking, there should be three conditions needed to be fulfilled to sustain an historic waters claim: (1) the exercise of the coastal state authority over the area; (2) the continuity over time of this exercise of authority; and (3) the attitude of foreign states to the claim.17 The ILC study stated that it was a common perception that the State which claims “historic waters” in effect claims a maritime area which, according to general international law, belongs to the high seas. As the high seas are res communis omnium and not res nullius, title to the area cannot be obtained by occupation. The acquisition by historic title is “adverse acquisition”, akin to acquisition by prescription; in other words, title to “historic waters” is obtained by a process through which the originally lawful owners, the community of states, are replaced by the coastal state. Title to “historic waters”, therefore, has its origin in an illegal situation which was subsequently validated. This validation could not take place by the mere passage of time; it must be consummated by the acquiescence of the rightful owners.18 Although the study admitted that the title to “historic waters” was a form of acquisition of territory by prescription, it suggested that it would be preferable not to refer to the concept of prescription in connection with the regime of historic waters.19 There are other criteria or elements contributing to the concept of historic rights, such as acquiescence by

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other states, notoriety of possession, the role of time and geographical factors, and proof of historic rights.20 In brief, the term historic rights is a generic concept; under it is the term historic waters, which in turn embodies the more specific concept of historic bays. It is interesting to note that in the evolution of the generic concept of historic rights, the term historic bays first appeared, then expanded into a larger concept of historic waters, and finally into the even larger concept of historic rights. However, if we regard the term historic title as the same as historic rights, then we should acknowledge that the term historic rights came first. In addition, we have to realize that the term historic rights is not equivalent to that of historic waters or historic bays, though the former may carry a broader meaning also covering historic waters and bays. The term historic rights also covers certain special rights without involving a claim of full sovereignty, such as historic fishing rights, which a state might have acquired in particular areas of the high seas.21 It is not clear whether such expansion is still underway in China’s practice through its inclusion of the term historic rights in its EEZ Law. The second point resulting from our observation is that all these terms above are often used interchangeably in maritime contexts. The relationship between the concept of historic rights and the LOS Convention UNCLOS III did not discuss the issue of historic rights or historic waters.22 However, a variant term of historic bay and/or historic title is mentioned in provisions of the LOS Convention relating to bays, delimitation of the territorial sea between states with opposite or adjacent coasts, and limitations and exceptions in the settlement of disputes. Article 10 (6) provides that “[t]he foregoing provisions [on bays] do not apply to socalled ‘historic’ bays”. Article 15 does not allow the median line to apply to special circumstances such as “by reason of historic title” for the delimitation of the territorial seas of the two states. The last provision in the LOS Convention which mentions the historic bays or titles is Article 298, which permits the contracting states to exclude the compulsory procedure provided for in the LOS Convention from applying to the disputes “involving historic bays or titles”. It is obvious that the LOS Convention deliberately avoids the issue of historic rights or historic waters, leaving it to be governed by customary international law as reaffirmed by its preamble.23 On the other hand, the Convention does have some bearing on the concept of historic waters in territorial seas or internal waters since it appears only in the sections on territorial sea regime and the settlement of disputes. International practice As shown above, the concept of historic rights has grown out of historic bays, so that most of the existing cases are related to bays and gulfs. A number of judicial awards support and elaborate the concept of historic waters. One historic claim was accepted in 1951 by the ICJ in the Norwegian Fisheries case.24 The issue before the court was

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whether the Norwegian method of delimiting territorial waters was valid on the basis of historic title, even if the method violated international law. After examining the past Norwegian practice, the court found that the Norwegian system of delimitation had been applied consistently and without interruption for some 60 years and that this practice had not been opposed by other states and instead tolerated by them. Based on these facts, the court ruled that the Norwegian system was not contrary to international law, thus upholding the validity of the Norwegian claim to historic title.25 The same court also accepted the Gulf of Fonseca as a historic bay and its waters as historic waters in the Gulf of Fonseca case in 1992.26 The general standards relating to historic waters are usually applicable for a bay or gulf owned by a single state. For the gulfs and bays owned by more than one country, however, it may be difficult to prove recognition of such areas as historic waters. The legal doctrine in this respect is rather amorphous. Oppenheim states that “as a rule, all gulfs and bays enclosed by the land of more than one littoral State, however narrow their entrance may be, are non-territorial. They are parts of open sea, the marginal belt inside the gulfs and bays excepted.”27 Blum shares this view and points out that historic bays lose that character when they become multinational.28 Few exceptions exist in state practice. The most notorious example is the Gulf of Fonseca situated in Central America, shared by Nicaragua, Honduras, and El Salvador.29 The significance of this case is that it has confirmed that a historic title to certain waters can be shared by more than one country. It has thus made a precedent in international law as well as in state practice. In state practice, the concept of historic waters has been established as a criterion to determine the jurisdictional extent of coastal state waters. According to Churchill and Lowe, there are about 20 claims in the world to historic bays.30 Some historic waters are recognized within the international community without controversy, while others are of a controversial character and are subject to protest by other countries. For example, the former Soviet Union claimed the Peter the Great Bay as its historic bay, and the length of the bay’s closing line of 108 nm;31 the claim was opposed by the Western countries led by the United States. However, China expressly recognized the claim in 1957 at a time of close Sino-Soviet solidarity.32 The most controversial example was set by Libya who claimed the Gulf of Sidra in 1974 as its historic bay with a closing line of 296 nm in length. The claim was challenged by the Western countries, as well as the former Soviet Union, leading to a conflict between Libya and the United States.33 Finally, it is worth mentioning that since 1887 Tonga has maintained a historic waters claim which covers a rectangle of high seas areas around several groups of its islands. Tonga’s claim has been defended on the ground that “[h]istory might validate the claim to the rectangle, as an exception to the law relating to the high seas, but only as broadening of the area which could be claimed under the standard rules”.34 It is not clear whether Tonga’s claim has ever been challenged, since it is located in a relatively remote area.35 The case of most relevance to historic rights, rather than historic waters and historic bays, is that of Tunisia’s historical claims, which were evaluated in the 1980s by an Italian scholar.36 In addition to its historic claim to the Gulf of Tunis37 and the Gulf of Gabès,38 Tunisia also claimed historic rights beyond its territorial sea, particularly historic fishing rights. In reply to Libya’s objections to this claim, Tunisia stated that historic rights acquired in bygone ages could extend over areas of sea or seabed that

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would be characterized today as internal waters, territorial waters, a fishing zone, or an area of the continental shelf.39 But this view was contested by the arguments that a state cannot claim a vast area of sea as internal waters on the sole basis of “historic rights” previously acquired for fishing purposes, unless it is possible to consider that those “historic rights” were in fact indicative of a right of full sovereignty.40 As for Tunisia’s historic rights beyond its territorial sea, those rights are essentially concerned with the exploitation of sedentary fisheries, such as sponge fisheries. Tunisia claimed exclusive jurisdiction over those so-called fixed fisheries whatever their distance from the coast.41 The claimed historic fishing rights were not disputable, even the contestant state Libya recognized those rights: “[e]vidence of the general recognition of Tunisian proprietary rights and ancillary rights to protection and control over the sedentary species asserted is not the issue. For the fact is that such rights existed.”42 On the other hand, it should be stressed that such historic rights did not exclude foreigners from the exploitation of sponge and octopus fisheries. Therefore, it is argued that the fishery zone created by the 1951 Tunisian decree on the sole basis of historic rights previously acquired is not justified and the 1951 Decree put forward a completely new and different claim, since for the first time the established fishery zone included all biological resources of the sea.43 In the case arising from the continental shelf dispute between Libya and Tunisia in 1982, the ICJ observed Tunisia’s unilateral line at 45°ZV (zenith vertical) northeast, starting from Ras Ajdir, as the eastern limit of its exclusive fishery zone under the 1951 Decree, and found that although no state may unilaterally establish international maritime boundary lines, the line adopted by Tunisia which was “originally intended only as a limit of an area of surveillance in the context of specific fishery regulations, constitutes a unilateral claim, but was never a line plotted for the purpose of lateral maritime delimitation, either in the seas or in the continental shelf”.44 The court found instead that the line perpendicular to the coast was the only lateral boundary opposable to Libya in the area claimed by Tunisia as being subject to historic rights.45 Meanwhile, Tunisia stressed the importance of its historic rights with a view to the future delimitation of the EEZ by arguing that its claim was supported either by the new law of the sea or the historic rights acquired through its immemorial exercise of jurisdiction. Libya questioned the nature and extent of Tunisia’s historic rights, asserting that they did not amount to sovereignty over the seabed and that they had never been exercised throughout the area claimed by Tunisia. In addition, Libya stressed that these rights could not “deprive a neighboring State of a shelf area which, according to the law, appertains to it de jure and ab initio”.46 The court avoided the question of whether Tunisia’s historic rights were relevant for the purpose of delimiting its continental shelf, but did make some important remarks that historic rights must enjoy respect and be preserved as they have always been by long usage.47 On the other hand, the court seems to have denied the relevance of historic rights to the delimitation of continental shelf, as it finds that basically, the notion of historic rights or waters and that of the continental shelf

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are governed by distinct legal regimes in customary international law. The first regime is based on acquisition and occupation, while the second is based on the existence of rights “ipso facto” and “ab initio”.48 Thus, in the view of the court, the historic rights would perhaps have been relevant for the purpose of delimiting Tunisia’s EEZ, but not for the purpose of delimiting its continental shelf.49 Nevertheless, as concluded by one writer, “Tunisia could not unilaterally claim the whole area over which her ‘historic rights’ extended as part of her exclusive economic zone”, but “Tunisia’s ‘historic rights’ could operate as an important factor when negotiating delimitation agreements with the interested states”.50 The recent international judicial case relating to historic rights is the Eritrea–Yemen Arbitration in 1998.51 The two contesting parties—Eritrea and Yemen—requested the specially established Arbitral Tribunal to decide on questions of territorial sovereignty over disputed islands in the Red Sea “in accordance with principles, rules and practices of international law applicable to the matter, and on the basis, in particular, of historic titles” (author’s italics).52 Eritrea bases its claim to territorial sovereignty over the disputed “Red Sea Islands” on a chain of title extending over more than 100 years, and on the doctrine of effective occupation. Eritrea traces this chain of title through the relevant historical records, beginning with the Italian colonization of the Eritrean mainland in the latter part of the 19th century.53 Yemen bases its claim to the disputed islands on original, historic, or traditional Yemeni title, which can be traced to the Bilad el-Yemen, or realm of Yemen, which is said to have existed as early as the 6th century AD. Yemen contends that its incorporation into the Ottoman Empire, from 1538 to circa 1635, and again from 1872 to 1918, did not deprive it of historic title to its territory. Yemen also contends that the Treaty of Lausanne had no effect on Yemeni title, because Yemen was not a party to the Treaty, and because Turkey’s renunciation of rights could not prejudice the interests of third parties. Yemen takes the view that the effect of Article 16 was not to make the islands terra nullius, but rather territory “the title to which was undetermined”. Yemen provides an historical review of alleged Yemeni acts of administration and control to supplement and confirm Yemen’s historic title to the islands.54 It is clear that both sides based their arguments partly on historic rights, in particular the Yemeni side. The Tribunal reviewed those arguments and held that there can be no doubt that the concept of historic title has special resonance in situations that may exist even in the contemporary world… A different situation exists with regard to uninhabited islands which are not claimed to be falling within the limits of historic waters.55 The Tribunal then pointed out that “in the present case, neither party has formulated any claim to the effect that the disputed islands are located within historic waters”. It further confirmed that the conditions that prevailed during many centuries with regard to the traditional openness of southern Red Sea marine resources for fishing, its role as means for unrestricted traffic from one side to the other, together with the common use of the islands by the populations of both coasts, are all important elements capable

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of creating certain “historic rights” which accrued in favour of both parties through a process of historical consideration as a sort of “servitude internationale” falling short of territorial sovereignty. Such historic rights provide a sufficient legal basis for maintaining certain aspects of a res communis that has existed for centuries for the benefit of populations on both sides of the Red Sea.56 Here it seems that the tribunal recognized the historic rights of both sides. That makes it difficult for the tribunal to base its decision on historic title and rights in favor of either party. Finally, despite great efforts made by the tribunal to investigate both claims to historic titles, the tribunal held that neither Party has been able to persuade the Tribunal that the history of the matter reveals the juridical existence of an historic title, or of historic titles, of such long-established, continuous and definitive lineage to these particular islands, islets and rocks as would be a sufficient basis for the Tribunal’s decision.57 On the other hand, the tribunal held that “Yemen shall ensure that the traditional fishing regime of free access and enjoyment for the fishermen of both Eritrea and Yemen shall be preserved.”58 From the above cases, it is obvious that international tribunals have recognized the existence of historic rights in the maritime context. But on the other hand, except for the Fisheries Case, it seems that the international judiciary has taken a rather conservative attitude towards the concept of historic rights, as illustrated in the Libya–Tunisia Case and the Eritrea–Yemen Case, where historic rights were not accepted as the basis of their decisions. While it is hoped that the international judiciary will eventually clarify the concept of historic rights and its applicability in cases of this kind, the existing conservative attitude means that the regimes of historic rights and historic waters remain underdeveloped. China’s practice Since the issue of historic waters was not discussed at UNCLOS III, we do not know what China’s position was at the conference. Yet, we can examine Chinese practice relating to historic waters both before and after UNCLOS III. China first expressed its view on historic waters in 1957 when it supported the Soviet claim to the Peter the Great Bay. In 1959 an official explanatory pamphlet published in China in order to justify China’s Declaration on the Territorial Sea of 1958 gave a more detailed explanation to China’s own historic claims. The pamphlet says that Although the natural entrance of some bays or gulfs exceeds 24 nautical miles, if the bays or gulfs are important to the national defense and economy of the coastal states and for a long period the coastal states have repeatedly exercised jurisdiction over the bays or gulfs, they may be regarded as historical bays or gulfs. Regardless of whether or not the mouths of these bays or gulfs exceed 24

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nautical miles, they may also be considered as internal bays or gulfs of the coastal states.59 It can be seen that China’s view is a reflection of general international law approaches, except respecting the width of the closing line for bays or gulfs since at that time there was no consensus on the width of the territorial sea and some countries were not in favor of the 24-nm approach. On the other hand, China’s view is limited to historic bays or gulfs. In the pamphlet, China mentioned some precedents such as France’s Bay of Cancale, Norway’s Varangerfjord, Canada’s Hudson Bay, and the Soviet Union’s Peter the Great Bay.60 The following are some relevant examples of China’s practice. The Bohai Gulf The most important Chinese historic waters claim is in the Bohai Gulf (or Bohai Sea). In the Declaration on the Territorial Sea of 1958, China declared that the Bohai Gulf and the Qiongzhou (Chiungchow) Strait were China’s inland waters.61 For the former, China justified its legal position by stating that the Bohai Gulf was governed by China from ancient times. As is stated in the declaration, “in several thousand years of history it has been constantly under the actual jurisdiction of our country, and not only has our country always considered it as an internal sea, but also [the fact] is internationally recognized”.62 China cited an incident relating to the Bohai Gulf which occurred in 1864 as the justification for the international recognition of the historic status of that gulf: in that year Prussia and Denmark were at war, and the Prussian gunboat Gazelle captured a Danish ship in the Bohai Gulf. The Chinese government protested to the Prussian government that Bohai was China’s internal sea and compelled Prussia to free the Danish ship. In addition, China explained that its claim to the Bohai Gulf was based on its importance to China’s economy and national defense.63 When China declared the Bohai Gulf to be a historic bay in 1958, the declaration was protested, particularly by the United States and the United Kingdom. Since the LOS Convention, it seems that there has been no controversy whether Bohai Gulf is an area of historic waters since it can be claimed both judicially and historically. The Qiongzhou Strait The 1958 Declaration treated the Qiongzhou Strait as an internal strait. This is also based upon historical considerations similar to those applicable to the Bohai Gulf case. In China’s view, in the historical context, the Qiongzhou Strait has an extremely important meaning for our economy and national defense. Historically, it has always been subject to our sovereign jurisdiction and has constituted an inalienable, composite part of our country. Since liberation our country has always administered it as an internal strait. The present Declaration on the Territorial Sea issued by our government is merely to reaffirm once more a historical fact.64 China’s treatment of the Qiongzhou Strait indicates that, in practice, its claims to historic

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waters (or rights) are not limited only to bays or gulfs, but also to other waters such as straits. The Qiongzhou Strait had the same fate as the Bohai Gulf, as China’s declaration encountered foreign protests. However, it seems that China’s claim to the Qiongzhou Strait as historic waters is more controversial than its claim to the Bohai Gulf. Even today, the United States continues to regard this Strait as “an international strait”.65 The Gulf of Tonkin The Gulf of Tonkin is a shared water area between China and Vietnam. As to its status as historic waters, see relevant sections in Chapter 5. The Peter the Great Bay On 21 July 1957, Moscow Radio announced that the Council of Ministers of the USSR had issued a decree declaring Peter the Great Bay to be the Soviet Union’s historic bay. The area claimed was approximately 115nm wide and 55 nm deep. The closing line was actually 108 nm between Tuman Ula and Cape Povorotni.66 The Chinese border is only about 10 miles inland from the bay. The coastal area stretching from Vladivostok (Haishenwei in Chinese) bordering Peter the Great Bay belonged to China until 1860 when China was forced to cede to Russia the vast territory in Siberia, including the coastal area to Peter the Great Bay, under the Treaty of Peking. Although the treaty did not mention the sea area adjacent to the ceded land, it is assumed that the adjacent sea area should be included in accordance with the principle of “the land dominating the sea”. One scholar, however, has argued that “it is certain that upon cession of the territory by China to Russia, the latter State did not succeed to any previous conception of ownership or exclusive possession over any waters of Peter the Great Bay”.67 Does that scholar infer that China has historic rights over the waters of Peter the Great Bay? As noted above, China expressly supported the 1957 Soviet claim to Peter the Great Bay as its historical bay.68 This support produced a doublesided legal effect on both China and on the Soviet Union. On one hand, the Soviets used China’s support to justify its claim to Peter the Great Bay. In response to Japan’s protest, the Soviet Union made several key points to defend its claim. One of them was the recognition by “the Chinese People’s Republic”.69 It can be argued that the fact that only one country, China, recognized the Soviet Union’s claim “does not constitute evidence of acquiescence, toleration, or commonly accepted usage” and “that to mention support by one highlights the dearth of approval from the rest [of the world]”.70 It seems that the scholars holding this view have ignored the fact that the land adjacent to Peter the Great Bay formally belonged to China. In considering this fact, China, rather than Japan or other countries, was the most interested country, which should therefore have the biggest say about the Soviet claim. It is admitted that “there was no successful challenge to the Bay closing line announced by the Soviets in 1957”.71 On the other hand, China used the Soviet claim to Peter the Great Bay as one of the precedents in state practice to justify its own claim to Bohai Gulf as China’s historic bay.72 In considering the timing of China’s support as well as China’s own claim, we may assume that China’s support was purposefully made.73 However, China might have

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never realized that its support for the Soviet claim had the consequence of depriving China of its own historic rights previously existing in the Sea of Japan, including Peter the Great Bay. For example, in the Treaty of Peking of 1860, it is clearly provided that “the area where Chinese live and where Chinese fish and hunt shall not be occupied” by Russia and the Chinese shall be permitted to operate normal fishing and hunting activities.74 From this provision, it is obvious that China retained its historic rights in the ceded territory, including those in the sea areas adjacent to the ceded territory, at least before China’s support for the Soviet claim. The difficulty in China’s recent efforts to seek direct access to the Sea of Japan by way of the Tumen River75 rests, at least partially, with China’s support, which could be regarded as a yielding of China’s historic rights in the Sea of Japan. Instead, China’s access may depend to a large extent upon the comity of neighboring countries. It is clear from China’s practice that when China regarded a certain maritime area as historic waters, then China treated it as internal waters as in the case of the Bohai Gulf and the Qiongzhou Strait illustrated above. The other practice which may be relevant to China’s historical claims are the designated protection fishing zones in the Yellow Sea and the East China Sea beyond the 12-nm territorial sea before UNCLOS III. This is reflected in the Sino-Japanese fishery agreements in the 1950s and 1970s. It is not clear whether such designation by China was based upon historic arguments, but there must have been some compelling reasons for China to do so, since at that time such areas were within the high seas and fishing was open to anyone. It is assumed that China might have undertaken such action based upon historic fishing rights, which it might have acquired in particular areas of the high seas and which could be recognized to some extent in international law. How much further? After the review of China’s past practice relating to historic rights and historic waters, we now turn to the provision on historic rights in China’s 1998 EEZ Law. Has China set a precedent in international law? As is illustrated above, historical claims were made in the form of government statements, declarations, law, or acts. So China’s historic claim contained in its EEZ Law is not unusual. What is new is that China has become the first, and perhaps the only state to incorporate its historic claims in EEZ and the continental shelf laws rather than in separate enactments or government statements. Usually, historic claims applied to a certain sea area are intended to confirm the internal water or territorial sea status of the area. But in China’s case, it is quite different: since the claim is embedded in China’s EEZ Law, it is assumed that such a claim could only make the claimed waters as, at most, equivalent to the legal status of EEZ or the continental shelf. A historic claim equivalent to EEZ and/or the continental shelf is apparently new in state practice, since no similar claim has yet been made by other states. As to historic rights, it is generally recognized that there are two types: one is exclusive

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with full sovereignty, such as historic waters and historic bays; and the other is nonexclusive without full sovereignty, such as historic fishing rights in the high seas. China’s claim, however, is unique in the sense that it does not fit in either of the above categories. It could not be regarded as a claim of historic waters in the traditional sense. Since it is referable to EEZ and continental shelf regimes, such a claim involves sovereign rights and jurisdiction, but not full sovereignty. Such sovereign rights are exclusive for the purpose of development of natural resources in the sea areas and jurisdiction in respect of marine scientific research, installation of artificial islands, and protection of the marine environment. It is obvious that such a claim to historic rights is not only a right to fisheries, but to other resources and activities as well. China’s historic rights, as claimed, may thus be called “historic rights with tempered sovereignty”. In such a context, China has set a precedent in state practice relating to historic rights. It is not clear whether China’s practice establishes a rule in international law, but it may already be influencing the development of the concept of historic rights. Finally, it should be pointed out that there is a difference between a restatement of an existing claim and a new claim. If China’s claim of historic rights is regarded as new, then the situation is not favorable for China. Of course, the burden of proof lies with China, the claiming state. During the adoption process of the 1998 EEZ Law, there was no explanation on why Article 14 was inserted into the law and on what rationale it was based.76 China’s claim remains ambiguous. The recent attempt at clarification, which is reflected in China’s revised Law on Marine Environmental Protection, has added even more ambiguity to China’s claim of historic rights. Article 2 of that law provides that “the Law shall apply to internal waters, territorial sea, contiguous zone, exclusive economic zone, continental shelf of the People’s Republic of China and other sea areas under the jurisdiction of the People’s Republic of China” (author’s italics).77 Does this imply that China has not only historic rights, but also historic waters in the South China Sea and/or other seas? The previous law, which was promulgated in 1982, contained similar wording referring to China’s potential EEZ and continental shelf.78 However, after the establishment of the EEZ and continental shelf regime, China still made such stipulation, which clearly refers to sea areas other than EEZ and continental shelf. Thus, in the context of the above legal provision, one may infer that China’s claim in its EEZ law may be a claim of historic waters rather than of historic rights. China’s historic rights in the South China Sea The most important and interesting area where China could claim historic rights is the South China Sea.79 The Spratly Islands have been claimed, in whole or in part, by China (including Taiwan), Vietnam, Brunei, Malaysia, and the Philippines. It seems that the prevailing basis for China’s historic claims to the South China Sea is the U-shaped line officially drawn on the Chinese map since 1947 by the then Chinese Nationalist Government. China has claimed all the islands, atolls, and even submerged banks within this line. But it is not clear whether China has claimed the waters so enclosed. China’s ambiguous position has given rise to the controversy of whether the waters within the line are intended to be historic waters.80 The Taiwan authorities gave the status of historic waters to the water areas within the

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U-shaped line in 1993 when it issued the South China Sea Policy Guidelines, which 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”.81 This can be regarded as Taiwan’s official position on the concept of historic waters. However, this claim has not acquired unanimous support among Taiwanese scholars. In 1993 at a round table discussion held at the National Chengchi University, Taipei, the participants were divided into those who supported the idea of historic waters and asserted that the water areas within the line were Chinese historic waters, and those who were rather dubious and cautious, taking the view that it was difficult to establish such a claim in international law.82 Partly due to the differences reflected in the above discussion and partly due to Taiwan’s domestic politics, recent developments have indicated that Taiwan’s position may have retreated from the 1993 Guidelines position. This can be seen from its 1998 Law on the Territorial Sea and the Contiguous Zone, in which an original provision on historic waters was dropped before its promulgation. Although there is no open discussion in the PRC as such, some scholars have also expressed their views on the legal significance of the line. One scholar actively defended this line in his argument in favor of historic waters;83 and another advocated claiming the waters in the South China Sea by its name.84 A recent contribution has argued that the water within the U-shaped line was China’s waters of historic title and should be treated as “China’s special EEZ, or historic EEZ” with the same status as the EEZ prescribed in the LOS Convention.85 Generally speaking, whether a certain water area can be established as historic water or not depends upon whether it can satisfy certain preconditions as described above. In the South China Sea, the line provides a basis for a claim of historic waters. However, the exercise of authority in the area by either mainland China or Taiwan has been infrequent since the promulgation of the line. Even these occasional exercises focused on the islands within the line rather than on the water areas. The freedom of navigation and freedom of fishery seem to be unaffected by these exercises. Thus, the question of whether there is effective control over the area within the line so as to establish it as historic waters arises. It may be argued that the relative frequency of the exercise of authority should be considered vis-à-vis other claimant countries. Yet, there are still doubts on how China could establish its claim of historic waters in the South China Sea. Furthermore, as China refused to recognize the Gulf of Tonkin as historic waters, it can be questioned, if the Gulf of Tonkin is not regarded as historic waters, how could the entire South China Sea become historic waters? The Chinese refusal in one area seems to rule out an assumption or assertion that the water area within the U-shaped line is China’s historic waters. On the other hand, the non-existence of historic waters in its traditional sense in the South China Sea does not necessarily mean that there exist no historic rights of any kind. It is clear from China’s stance that it seeks to enjoy historic privileges of some kind in the South China Sea. What kind of historic rights or privileges would China insist on in the relevant sea areas? The most convincing rights that China could enjoy are fishing rights, since from ancient times, Chinese fishermen have been fishing in the South China Sea. As for other rights, it is up to China to make clearer statements to the public.86 The provision of China’s EEZ Law on historical rights can be understood in a number

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of different ways. First, it can be interpreted to mean that the sea area which could not become China’s EEZ and/or continental shelf should have the same legal status as EEZ and/or continental shelf. Second, it can be interpreted to mean that the sea areas to which China’s historical rights are claimed go beyond the 200 nm limit. Third, it can be interpreted to mean that the sea areas to which China’s historical rights apply fall within the 200 nm limit but will come under an alternative national management regime different from the EEZ regime. In this third interpretation, the claimed areas of historical rights can be treated as quasi-territorial sea, or as historical waters with some modifications, or as “tempered historic waters”. On the other hand, it may be questioned whether China’s claimed historic rights could extend to cover the continental shelf area in the South China Sea, since the right to the latter is ab initio and ipso facto, as provided in the LOS Convention, and “the rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation” (Art. 77), in spite of the fact that the historic rights are included in China’s EEZ Law. The continental shelf doctrine of “inherency” should be viewed as deliberately aimed against the operation of any historic rights previously acquired.87 The opposite view is that “a new legal concept, consisting in the notion introduced in 1958 that continental shelf rights are inherent or ‘ab initio’, cannot by itself have the effect of abolishing or denying acquired and existing rights”.88 China has to prove that its historic rights existed prior to the establishment of the customary rules on the continental shelf. Otherwise, China’s claim is only relevant to the EEZ noncontinental shelf area. The provision on historic rights in China’s EEZ Law has been queried. A Vietnamese scholar has asked whether “this article tacitly refers to other interests that China has claimed such as the traditional right of fishing in maritime zones of other countries and the nine broken lines claiming over 80 percent of area of the East Sea”.89 He further stated that “[a] long time ago, regional countries pursued their normal activities in the East Sea without encountering any Chinese impediment and they have never recognized historical rights of China there”.90 Vietnam officially lodged a protest against China’s historic rights in the South China Sea, emphasizing that Vietnam will “not recognize any so-called ‘historical interests’ which are not consistent with international law and violate the sovereignty, the sovereign rights of Vietnam and Vietnam’s legitimate interests in its maritime zones and continental shelf in the eastern Sea”.91 It may be difficult for China to assert that there is a general acquiescence on the part of third states to its historic rights in the South China Sea given Vietnam’s opposition. However, the proclamation in China’s law “may well serve to substantially stake out the declarant’s legal position, expressing the state’s belief that usage of waters has been sufficiently lengthy, continuous, and notorious to constitute a cohate title”.92 It is fair to say that the regime of historic rights is favorable for those states which have long histories, and relatively unfavorable for the newly independent states founded after World War II. This concern was expressed when the issue of historic waters was discussed in the ILC. For example, García-Amador contended that the concept of historic bays only benefited old countries having a long history and that there were many comparative newcomers to the international community—countries in Latin America, the Middle East, and the Far East—which could not claim such historic rights.93 In

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comparison with other countries bordering the South China Sea, China’s history is the longest. It is understandable why other claimants to the islands in the South China Sea are averse to China’s historic claim. Conclusion Since the concept of historic rights is not clearly defined in international law, it would be useful if China were to explain the rationale behind its practice in these contexts. With a view to maximizing its own maritime interest in the adjacent seas, incorporating the historic claim in the EEZ Law, rather than the law on the territorial sea, seems to be a wiser choice. There are a number of possible considerations behind such a choice: First, China is not confident enough whether its historic waters claim to the water areas within the U-shaped line could stand up in international law, though it has attempted tacitly to enclose such waters as China’s historic waters. Second, the concept of historic rights is broader than that of historic waters and includes the latter. It can thus give China the flexibility of pushing forward its claim from historic rights to historic waters, if necessary. Finally, we have to be aware that the embodying of the historic rights in the EEZ Law may show that China no longer regards the waters within the U-shaped line as historic waters, if such waters are only to be categorized as internal waters or territorial sea. Perhaps the Chinese have not seen the distinction between historic rights and traditional rights or are confused by it: the former is a legal term whose application depends upon the fulfillment of the preconditions imposed by international law, while the latter is a general term denoting the rights existing in history. On the other hand, the perceived excessive claims put forward by other South China Sea countries, such as the Philippines and Malaysia, who have claimed some islands in the South China Sea based upon the 200 nm EEZ rights of the LOS Convention, may have encouraged China to insist that its South China Sea claim is based upon the U-shaped line. In China’s view, a claim derived from historic rights may seem more forceful and valid in law than claims simply based upon the EEZ concept. Since there are no definitive rules in international law which govern the status of maritime historic rights, China’s claim is not a violation of international law. Similarly, since there are no such rules, it is doubtful whether China’s claim could be established in international law. What is more problematic is China’s implementation of what it has claimed either in the South China Sea or elsewhere where China may assert historic rights and interests. As the ICJ once stated, general international law did not provide for a single “regime” for historic waters or historic bays, but only for a particular regime for each of the concrete, recognized cases of historic waters or historic bays.94 From this point of view, China’s claim can be regarded as one of the particular cases, which may stand up in international law as doctrine evolves over time. Finally, we have to realize that the formulation of the concept of historic waters is an adjustment of the generally accepted law of the sea regime. Because of the peculiar circumstances of some maritime areas which fall within the national jurisdiction of the coastal states, those areas are allowed to be part of the jurisdictional waters as an

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exception to the general rules. It is predicted that the concept of historic rights will survive and be used by states as a means of claiming and expanding jurisdictional areas not only in the maritime sector, but also in the land sector. As early as 1984, Goldie asked the question whether the doctrine of historic bays and historic waters had become obsolete with the development of new alternative concepts of national maritime expansion, such as the EEZ and the continental shelf.95 Judged by recent state practice, the answer to this question is no. Rather, there is a trend toward the application and assertion of historic claims whether to bays, waters, or rights in spite of the establishment of new legal concepts such as EEZ and continental shelf in the law of the sea. Such a trend may eventually help to codify the rules of historic rights and/or historic waters in general international law.

Appendix I Fishery Agreement between the People’s Republic of China and Japan (unofficial translation by Zou Keyuan)

Recalling the Joint Statement of the Government of the People’s Republic of China and the Government of Japan made on 29 September 1972; Bearing in mind the traditional cooperative relationship in the fishery area including the Fishery Agreement between the People’s Republic of China and Japan concluded on August 25, 1975; For the purpose of establishing a new fishery order in accordance with the United Nations Convention on the Law of the Sea adopted on 10 December 1982, conserving and utilizing rationally marine living resources of common concern, and maintaining the orderly conduct of maritime fishing operations; The Government of the People’s Republic of China and the Government of Japan have agreed, through friendly consultation, as follows:

Article 1 The applicable water area in this Agreement (hereinafter referred to as Agreed Water Area) is the exclusive economic zone of the People’s Republic of China and the exclusive economic zone of Japan.

Article 2 1. Each Party shall, pursuant to the principle of reciprocity, and in accordance with this Agreement and relevant domestic laws and regulations, allow nationals and fishing boats of the other Party to engage in fishery activities in its exclusive economic zone. 2. The competent authorities of each Party, in compliance with the provisions of Annex 1 to this Agreement, shall issue fishing permits to nationals and fishing boats of the other Party, and may levy appropriate fees on the issuance of such permits. 3. Nationals and fishing boats of each Party engaged in fishery activities in the exclusive economic zone of the other Party shall comply with this Agreement and relevant laws and regulations of the other Party.

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Article 3 Each Party shall, taking into account resource conditions in its exclusive economic zone, national catch capability, traditional fishery activities, conditions subject to which the other Party is permitted fishing entry and other relevant factors, decide annually the allowable catch of fish species, catch quota, fishing areas, and other operation conditions. This decision shall be subject to the result of the consultations of the Sino-Japanese Fishery Joint Committee to be established in accordance with Article 11.

Article 4 1. Each Party shall adopt necessary measures to ensure that its nationals and fishing boats comply with the provisions of this Agreement and the conservation measures and other conditions provided for in the relevant laws and regulations of the other Party when they are engaged in fishery activities in the exclusive economic zone of the other Party. 2. Each Party shall inform without delay the other Party of the conservation measures and other conditions provided for in its relevant laws and regulations.

Article 5 1. Each Party, in order to ensure that nationals and fishing boats of the other Party engaged in fishery activities in its exclusive economic zone comply with the conservation measures and other conditions provided for in its relevant laws and regulations, may take necessary measures for its exclusive economic zone in accordance with international law. 2. Fishing boats and their crew under arrest or detention shall be released promptly as soon as the appropriate bond or other security has been posted. 3. The competent authorities of each Party, upon arrest or detention of the fishing boat and its crew of the other Party, shall, through an appropriate channel, inform promptly the other Party of the actions taken and subsequent punishment imposed.

Article 6 The provisions from Article 2 to Article 5 shall apply to the Agreed Water Area except the areas referred to in the following subparagraphs (1) and (2). (1). The water area defined in Paragraph 1 of Article 7; and (2). The Agreed Water Area south of 27° North Latitude in the East China Sea, and the

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Agreed Water Area west of 125˚30′ East Longitude and south of the East China Sea (except the exclusive economic zone of the People’s Republic of China in the South China Sea).

Article 7 1. The provisions in Paragraphs 2 and 3 of this Article shall apply to the water area (hereinafter referred to as Provisional Measures Zone) enclosed by straight lines connecting in order the following coordinates: (1) 30°40′N, 124˚10′1″E (2) 30°00′N, 123˚56′4″E (3) 29°00′N, 123˚25′5″E (4) 28°00′N, 122˚47′9″E (5) 27°00′N, 121˚57′4″E (6) 27°00′N, 125˚58′3″E (7)28°00′N, 127˚15′1″E (8) 29°00′N, 128˚0′9″E (9) 30°00′N, 128˚32′2″E (10) 30°40′N, 128˚26′1″E (11) 30°40′N, 124˚10′1″E 2. Both Parties shall adopt, based on decisions made by the Sino-Japanese Fishery Joint Committee established under Article 11, appropriate management measures for conservation and quantity in the Provisional Measures Zone in order to protect marine living resources from the harm of being overexploited. 3. Each Party shall take administrative and other necessary measures for its nationals and fishing boats fishing in the Provisional Measures Zone. Each Party may not impose administrative and other measures on nationals and fishing boats of the other Party in this zone. Either Party, discovering that a national or a fishing boat of the other Party has breached the operation regulations decided by the Sino-Japanese Fishery Joint Committee established under Article 11, may call attention of the said national or fishing boat to the facts and notify the other Party of the facts and other information concerned. The other Party, with due regard to the notification, shall inform the former of the result after necessary measures have been taken.

Article 8 Each Party, in order to safeguard navigation and operation safety, to maintain normal operation order at sea, and to settle maritime accidents smoothly and timely, shall provide guidance or adopt other necessary measures for its nationals and fishing boats.

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Article 9 1. When a national and fishing boat of one Party encounters distress or other emergencies along the coast of the other Party, the other Party shall render rescue and protection with best efforts and notify promptly the relevant authorities of the former Party of the information concerned. 2. A national and fishing boat of either Party, in need of seeking refuge due to bad weather or other emergencies, may enter the other Party’s port for refuge after contacting the relevant authorities of the other Party in accordance with the provisions of Annex 2 to this Agreement. The national and fishing boat shall comply with the relevant laws and regulations of the other Party, and follow the instructions from the authorities concerned.

Article 10 Both Parties shall cooperate for scientific research concerning fisheries and for the conservation of marine living resources.

Article 11 1. Both Parties, in order to realize the purpose of this Agreement, shall establish the Sino-Japanese Fishery Joint Committee (hereinafter referred to as the Fishery Committee), which consists of four members, two of whom will be respectively appointed by the government of each Party. 2. The tasks of the Fishery Committee are as follows: (1) to consult on matters relating to the provision of Article 3, matters relating to the water area referred to in Article 6 (2), and to make recommendations to governments of both Parties. The matters under consultation include: a. matters relating to the catch of fishery species, quota of fishery catches and other specific operation conditions for nationals and fishing boats of the other Party provided for in Article 3; b. matters relating to the maintenance of the operation order; c. matters relating to the state and conservation of marine living resources; d. matters relating to fishery cooperation between the two countries. (2) to consult and decide on matters relating to the provisions of Article 7; (3) if necessary, to make recommendations to the governments of both Parties on any revision of the annexes to this Agreement; and (4) to review the implementation of this Agreement and other matters relating to this

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Agreement. 3. Any recommendation and decision made by the Fishery Committee shall be implemented only with the unanimous consent of the committee members of both Parties. 4. The governments of both Parties shall respect the recommendation under paragraph 2 (1) of this Article, and adopt necessary measures in accordance with the decision under paragraph 2 (2) of this Article. 5. The Fishery Committee may be convened annually either in the People’s Republic of China or in Japan. Meetings ad hoc, if necessary, may be held with the consent of both Parties.

Article 12 No provision in this Agreement shall be construed as prejudicial to the respective positions of both Parties on law of the sea issues.

Article 13 1. Annexes to this Agreement (including annexes revised according to Paragraph 2 of this Article) shall constitute an integral part of this Agreement. 2. Governments of both Parties may amend the annexes to this Agreement by written agreement.

Article 14 1. This Agreement shall enter into force from the date of the exchange of notes between the two Parties after both Parties have gone through respectively the necessary domestic legal procedures required for the entry into force of this Agreement. The term of validity of this Agreement shall be 5 years, and continue to be valid thereafter until the expiry according to the provisions of Paragraph 2 of this Article. 2. Either Party, after the expiry of the first five-year term or afterwards, may terminate at any time this Agreement by giving the other Party six months’ written notice. 3. The Fishery Agreement between the People’s Republic of China and Japan signed on 15 August 1975 shall cease to be effective on the date of the entry into force of this Agreement. This Agreement, in duplicate and in both Chinese and Japanese, was signed in Tokyo on 11 November 1997, and the Chinese and Japanese texts are equally authentic. Representative of the Government of the People’s Republic of China Representative of the Government of Japan

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Annex 1 The Parties, according to the provisions of Article 2 (2) of this Agreement, may adopt the following measures concerning permits: 1. The competent authorities of either Party, upon receipt of the written notification of the decision from the competent authorities of the other Party on the provisions of Article 3 of this Agreement, apply to the competent authorities of the other Party for permits for its nationals and fishing boats that intend to be engaged in fishery operations in the exclusive economic zone of the other Party. The competent authorities of the other Party shall issue the permits pursuant to this Agreement and its relevant laws and regulations. 2. The competent authorities of each Party shall inform in writing the competent authorities of the other Party of the procedural measures for fishing entry (including the procedural measures concerning applications for and issuance of permits, provision of fishing data, marking of fishing boats, and fishing log). 3. The fishing boat with a permit shall prominently display the permit in the wheelhouse and mark the fishing boat clearly in accordance with the requirements of the other Party.

Annex 2 The following provisions shall be followed to implement the provisions of Article 9 (2) of this Agreement: 1. The contact department designated by the Government of the People’s Republic of China will be the Harbour Superintendency Authorities in charge of each relevant port. The contact department designated by the Government of Japan is the regional Coast Guard Headquarters in charge of the relevant ports for refuge. 2. The specific communication methods shall be mutually notified at the meeting of the Sino-Japanese Fishery Joint Committee established under Article 11 of this Agreement. 3. The contents that a fishing boat of either Party needs for communication with the designated authorities of the other Party include: the name of the boat, identification signal, position of the boat (latitude and longitude), port where the boat is registered, total tonnage and the length of the boat, name of the captain, number of the crew, reason for refuge, destination of refuge applied for, estimated time of arrival, and means of communication.

Appendix II Agreement on Fishery Cooperation in the Beibu Gulf between the Government of the People’s Republic of China and the Government of the Socialist Republic of Vietnam (unofficial translation by Zou Keyuan)

For the purpose of maintaining and developing the traditional neighboring and friendly relationship between the two countries and between the two peoples, and of preserving and sustainably utilizing the marine living resources in the Agreed Water Area in the Beibu Gulf; In accordance with international law, particularly relevant provisions in the United Nations Convention on the Law of the Sea concluded on 10 December 1982, and the Agreement on Delimitation of Territorial Seas, Exclusive Economic Zones, and Continental Shelves in the Beibu Gulf between the People’s Republic of China and the Socialist Republic of Vietnam (hereinafter referred to as the Delimitation Agreement on the Beibu Gulf) signed on 25 December 2000; Based on mutual respect for sovereignty, sovereign rights and jurisdiction of the two countries in the Beibu Gulf; and The Government of the People’s Republic of China and the Government of the Socialist Republic of Vietnam, have agreed, through friendly consultation, as follows: PART I: GENERAL PROVISIONS

Article 1 This Agreement applies to parts of the exclusive economic zones and parts of the adjacent territorial seas of the two countries (hereinafter referred to as “Agreed Water Area”) in the Beibu Gulf.

Article 2 The Contractual Parties shall undertake fishery cooperation in the Agreed Water Area based on the mutual respect for sovereignty, sovereign rights and jurisdiction. Such fishery cooperation shall not affect sovereignty of the two countries over their respective

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territorial seas and other rights and interests enjoyed by the two countries in their respective exclusive economic zones. PART II: COMMON FISHERY ZONE

Article 3 1. Both Contractual Parties have agreed to establish the Common Fishery Zone in the respective areas of 30.5 nautical miles of the exclusive economic zones of the two countries from the demarcation line determined in the Delimitation Agreement on Beibu Gulf, north to the closing line of the Beibu Gulf, and south of 20˚N. 2. The actual extent of the Common Fishery Zone is the water area encircled by straight lines connecting in order the following points: (1) 17°23′38″N, 107˚34′43″E (2) 18°09′20″N, 108˚20′18″E (3) 18°44′25″N, 107˚41′51″E (4) 19°08′09″N, 108˚41′51″E (5) 19°43′00″N, 108˚20′30″E (6) 20°00′00″N, 108˚42′32″E (7) 20˚00′00″N, 107˚57′42″E (8) 19°52′34″N, 107˚57′42″E (9) 19°52′34″N, 107˚29′00″E (10) 20˚00′00″N, 107˚29′00″E (11) 20˚00′00″N, 107˚07′41″E (12) 19°33′07″N, 106˚37′17″E (13) 18°40′00″N, 106˚37′17″E (14) 18°18′58″N, 106˚53′08″E (15) 18°00′00″N, 107˚01′55″E (16) 17°23′38″N, 107˚34′43″E

Article 4 Both Contractual Parties shall undertake long-term fishery cooperation in the Common Fishery Zone in the spirit of mutual benefits.

Article 5 Both Contractual Parties shall jointly make measures in relation to preservation, management, and sustainable utilization of the living resources in the Common Fishery Zone in accordance with the natural conditions, characteristics of the living resources, the

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need of sustainable development and environmental protection, and the impact on the respective fishery activities of the two Parties.

Article 6 The Contractual Parties shall respect the principle of equality and mutual benefit and shall determine annually the quantity of operating fishing vessels for each party in the Common Fishery Zone through the Sino-Vietnamese Joint Committee for Fishery in the Beibu Gulf established pursuant to Article 13 of this Agreement, based on the allowable catch determined on the basis of the results from joint regular surveys on fishery resources and the impact on respective fishing activities of both parties, and the need of sustainable development.

Article 7 1. Both Contractual Parties shall carry out the licensing system for fishing activities conducted by their own fishing vessels in the Common Fishery Zone. Fishing permits shall be issued in accordance with the quantity of fishing vessels in the current year determined by the Sino-Vietnamese Joint Committee for Fishery in the Beibu Gulf, and the names of the fishing vessels granted permits shall be notified to the other party. Both Contractual Parties shall be obliged to educate and train their fishermen who conduct fishing activities in the Common Fishery Zone. 2. Fishing vessels which intend to enter the Common Fishery Zone for fishing activities shall apply for the permit from the competent authorities of their own countries, and may enter the Common Fishery Zone for fishing activities only after they have obtained the permit. The fishing vessels of the Contractual Parties for fishing activities in the Common Fishery Zone shall mark themselves in accordance with the regulations set forth by the Sino-Vietnamese Joint Committee for Fishery in the Beibu Gulf.

Article 8 Nationals and fishing vessels of both parties for fishing activities in the Common Fishery Zone shall comply with the regulations on preservation and management of fishery resources laid down by the Sino-Vietnamese Joint Committee for Fishery in the Beibu Gulf, and shall write the fishing log correctly in accordance with the requirements by the Sino-Vietnamese Joint Committee for Fishery in the Beibu Gulf and submit it to the competent authorities of their own countries within the prescribed time.

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Article 9 1. The competent authorities of the Contractual Parties shall monitor and inspect the nationals and fishing vessels of both parties in their own water areas of the Common Fishery Zone in accordance with the regulations laid down by the Sino-Vietnamese Joint Committee for Fishery in the Beibu Gulf based on the characteristics of the Common Fishery Zone and in line with the domestic laws of both parties on preservation and management of fishery resources. 2. The competent authorities of one Contractual Party, having found any breach of the regulations laid down by the Sino-Vietnamese Joint Committee for Fishery in the Beibu Gulf by nationals or fishing vessels of the other Contractual Party in the Beibu Gulf in its own water area of the Common Fishery Zone, shall have the right to deal with such breach in accordance with the regulations laid down by the Sino-Vietnamese Joint Committee for Fishery in the Beibu Gulf, and shall notify the other party promptly of the relevant circumstances and the handling result through the consultation mechanism established by the Sino-Vietnamese Joint Committee for Fishery in the Beibu Gulf. The detained fishing vessels or crew shall be released promptly after the appropriate bond or other kind of security has been posted. 3. The competent authorities of both parties, if necessary, may coordinate to conduct joint monitoring and inspection, and to handle any breach of the regulations laid down by the Sino-Vietnamese Joint Committee for Fishery in the Beibu Gulf concerning preservation and management of fishery resources. 4. Each Contractual Party shall, in accordance with its domestic law, have the right to impose punishment on fishing vessels which enter its own water area in the Common Fishery Zone without a permit, or with a permit but conduct illegal activities other than fishing activities in the Common Fishery Zone. 5. Each Contractual Party shall provide facilities for the permitted fishing vessels of the other Contractual Party in the Common Fishery Zone. The competent authorities of each Contractual Party shall not abuse its power, or hamper normal fishing activities conducted by the permitted nationals and fishing vessels of the other party in the Common Fishery Zone. Each Contractual Party, having found that the competent authorities of the other Contractual Party has conducted law enforcement in contravention against the common management measures adopted by the SinoVietnamese Joint Committee for Fishery in the Beibu Gulf, shall have the right to request these authorities to render explanations, and to submit, if necessary, the matter to the Sino-Vietnamese Joint Committee for Fishery in the Beibu Gulf for discussion and settlement.

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Article 10 Each Contractual Party may adopt any form of international cooperation or form of joint venture within the framework of operational scale in its own area in the Common Fishery Zone. All the vessels under the above cooperative or joint venture forms permitted to conduct fishing activities in the Common Fishery Zone shall comply with the regulations on preservation and management of fishery resources adopted by the Sino-Vietnamese Joint Committee for Fishery in the Beibu Gulf, hoist the national flag of the Contractual Party who has granted them the permit, mark them in accordance with the regulations of the Sino-Vietnamese Joint Committee for Fishery in the Beibu Gulf, and operate within the area of the Contractual Party who has granted them the permit in the Common Fishery Zone. PART III: TRANSITIONAL ARRANGEMENTS

Article 11 1. Each Contractual Party shall make transitional arrangements for the existing fishing operations of the other Contractual Party in its exclusive economic zone north of the Common Fishery Zone (measured from 20˚N). The transitional arrangements shall be implemented from the date of the entry into force of this Agreement. The other Contractual Party shall take measures to reduce such fishing operations year by year. The transitional arrangements will end within four years from the date of the entry into force of this Agreement. 2. The extent of the water area and management measures for the transitional arrangements shall be made by the Contractual Parties in the form of a supplementary protocol, which shall constitute an integral part of this Agreement. 3. Each Contractual Party, upon the end of the transitional arrangements, shall give priority, under the same conditions, to the other party for fishing operations in its exclusive economic zone. PART IV: BUFFER ZONE FOR SMALL FISHING BOATS

Article 12 1. The Contractual Parties shall establish the buffer zone in order to avoid disputes caused by illegal entry by mistake of small fishing boats of one party to the territorial sea of the other. The actual extent of the buffer zone is the water area circled by the straight lines connecting the following points:

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(1) 21°28′12.5″N, 108˚06′04.3″E (2) 21˚25′40.7″N, 108˚02′46.1″E (3) 21˚17′52.1″N, 108˚04′30.3″E (4) 21°18′29.0″N, 108˚07′39.0″E (5) 21°19′05.7″N, 108˚10′47.8″E (6) 21˚25′41.7″N, 108˚09′20.0″E (7) 21°28′12.5″N, 108˚06′04.3″E 2. Each Contractual Party, if it finds that small fishing boats of the other party conduct fishing activities in its water area in the buffer zone, may send a warning, or take necessary measures to order them to leave that water area, but by so doing the Contractual Party shall restrain its action not to detain or arrest the vessels in question, nor to use force. If there is any dispute relating to fishing activities, it shall be reported to the Sino-Vietnamese Joint Committee for Fishery in the Beibu Gulf for settlement; if there is any dispute beyond fishing activities, it shall be settled by relevant and respective competent authorities of the two countries in accordance with their domestic law. PART V: SINO-IETNAMESE JOINT COMMITTEEFOR FISHERY IN THE BEIBU GULF

Article 13 1. The Contractual Parties have decided to establish the Sino-Vietnamese Joint Committee for Fishery in the Beibu Gulf (hereinafter referred to as the Joint Fishery Committee) in order to implement this Agreement. The Joint Fishery Committee shall consist of two representatives respectively appointed by both Governments and several committee members. 2. The Joint Fishery Committee will make detailed regulations on its operational mechanism. 3. The functions of the Joint Fishery Committee are as follows: (1) to consult on relevant matters relating to the preservation and sustainable utilization of fishery resources in the Agreed Water Area, and to make proposals for the two Governments; (2) to consult on relevant matters relating to fishery cooperation between the two countries in the Agreed Water Area, and to make proposals for the two Governments; (3) to adopt regulations and implementing measures on preservation and management of fishery resources in the Common Fishery Zone in pursuance to Article 5 of this Agreement; (4) to determine the quantity of fishing vessels of each party entering into the Common Fishery Zone annually in pursuance to Article 6 of this Agreement; (5) to consult and decide on other matters relating to the Common Fishery Zone;

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(6) to carry out the functions in accordance with the supplementary protocol on transitional arrangements; (7) to settle disputes of fishing activities occurring in the buffer zone for small fishing boats; (8) to guide the settlement of fishery disputes and maritime accidents within its prescribed capacity; (9) to evaluate the situation of implementing this Agreement and report to the two Governments; (10) to propose to the two Governments any amendment or revision of this Agreement, annexes to this Agreement, and supplementary protocols to this Agreement; and (11) to consult on other matters within common concern of the two parties. 4. Any proposal and decision of the Joint Fishery Committee shall be subject to unanimous agreement of the representatives of the Contractual Parties. 5. The Joint Fishery Committee shall hold one or two meetings annually, and the venue will alternate between the two countries. Meetings ad hoc may be held with the agreement of both parties when necessary. PART VI: MISCELLANEOUS PROVISIONS

Article 14 The Contractual Parties shall provide their own nationals and fishing vessels with guidelines, legal education, and adopt other necessary measures so as to ensure the safety of navigation, maintenance of the order and safety of fishing operations at sea, and the smooth and timely handling of maritime accidents in the Agreed Water Area.

Article 15 1. When the nationals and fishing vessels of one Contractual Party need assistance due to distress or other emergencies in the sea area of the other Contractual Party, the other Contractual Party shall be obliged to render salvage and protection, and notify in the meantime the relevant department of the counterpart Contractual Party of the relevant matters. 2. When the nationals and fishing vessels of one Contractual Party seek refuge due to bad weather or other emergencies, they may take refuge in the area of the other Contractual Party in accordance with the annex to this Agreement and the regulations of the Joint Fishery Committee, and after the contact with the other Contractual Party. During the refuge, the nationals and fishing vessels of that Contractual Party shall abide by the relevant laws and regulations of the other Contractual Party, and obey the management of the relevant department of the other Contractual Party.

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Article 16 Each Contractual Party shall ensure the right of innocent passage and navigational convenience of fishing vessels of the other Contractual Party in accordance with the provisions of the United Nations Convention on the Law of the Sea concluded on 10 December 1982.

Article 17 1. The Contractual Parties shall cooperate for fishery scientific research and preservation of marine living resources in the Agreed Water Area. 2. Each Contractual Party may have international cooperation for fishery scientific research in its own water area of the Agreed Water Area PART VII: FINAL PROVISIONS

Article 18 Any dispute resulting from interpretation or application of this Agreement between the two parties shall be settled through friendly consultation.

Article 19 Any annex or supplementary protocol to this Agreement shall constitute an integral part of this Agreement.

Article 20 Both Contractual Parties may amend or revise, through consultation, this Agreement, any annex to this Agreement, or any protocol to this Agreement.

Article 21 The geographical coordinates of the Common Fishery Zone stipulated in Article 3 (2) of this Agreement and the geographical coordinates of the buffer zone for small fishing

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boats are measured from the complete map of the Beibu Gulf and the special map of the mouth of the Beilun River annexed to the Delimitation Agreement on the Beibu Gulf.

Article 22 1. This Agreement shall enter into force from the date of the exchange of notes between the two parties after having carried out necessary domestic legal procedures by both parties respectively. 2. The term of validity of this Agreement shall be 12 years, and extend to another 3 years automatically afterwards. The continuation of cooperation after the expiry of the extension shall be negotiated between the two parties through consultation. This Agreement is signed in Beijing on 25 December 2000, and written in Chinese and Vietnamese, both of which are equally authentic. Representative for the Government of Representative for the Government of the People’s Republic of China the Socialist Republic of Vietnam

Notes Introduction 1 21 ILM (1982) 1261. The Convention was open for signature on 10 December 1982 and came into effect on 16 November 1994. As of May 2004, there were 145 Contracting Parties to it, including one international organization. 2 Article 2 (2) of the LOS Convention. 3 Article 56 (1)(b) and Article 77 (1) of the LOS Convention. 4 Article 81 of the LOS Convention. 5 See Article 122 of the LOS Convention. 6 Text is reprinted in Park Hee Kwon, The Law of the Sea and Northeast Asia: A Challenge for Cooperation (The Hague: Kluwer Law International, 2000), 181–198. 7 For details, see Zhao Lihai, Studies on the Law of the Sea Issues (Beijing: Peking University Press, 1998) (in Chinese), 41–57. 8 For example, the Philippines expressed its alarm over increasing Vietnamese military and fishing vessel incursions into the waters off the disputed Spratly Islands in the South China Sea and there were 205 Vietnamese vessels in areas claimed by the Philippines in the first 10 months in 2001. See “Philippine alarmed over increasing Vietnamese incursions in Spratlys”, Agence France-Presse, 16 November 2001. 9 See “Vietnam protests China’s exercises in ‘off-limits zone’”, Voice of Vietnam, Hanoi, 11 June 2002; and “China Dismisses Vietnam’s Protest over Naval Exercise”, Xinhua News Agency, Beijing, 11 June 2002. 10 Cheng Gang, “Declaring Maritime Sovereignty by Neighboring Countries”, Global Times (in Chinese), 14 May 2004, p. 3. 11 A Korean scholar, following the South Korean government position, argues that the NLL has become a bilateral customary law. See Park Hee Kwon, op. cit., p. 108. 12 See Ke Zhi, “Historical and Legal Factors of the Conflict between Two Koreas in the Yellow Sea”, Lianhe Zaobao (Singapore), 10 July 2002. 13 For details, see Nguyen Hong Thao, “The Settlement of Disputes in Bac Bo (Tonkin) Gulf”, Vietnam Law and Legal Forum, Vol. 7, No. 77, January 2001, 15– 18. 14 Anthony Bergin, “East Asian Naval Developments—Sailing into Rough Seas”, Marine Policy, Vol. 26, 2002, p. 121. 15 Valencia, “Japan’s rights and wrongs in the ‘fishing boat’ incident”, The Japan Times, 10 January 2002. 16 After the incident, Richard Armitage, US Deputy Secretary of State, expressed to the news reporters that he saluted the government of Japan and the guardians of Japan for having taken this resolute action, and the US was willing to provide help

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upon request. See “US official links North Korea to suspect spy ship: report”, Agence France-Presse, 13 January 2002. Richard Boucher, the spokesman of the State Department, said that “we believe the actions that the Japanese took with regard to this ship were entirely appropriate. Given the circumstances, we do think they did the right thing and we applaud them for doing that.” See “US backs Japan on sinking of ship in East China Sea”, Dow Jones International News, 14 January 2002. 17 See John Norton Moore, “The Rule of Law in the Oceans”, in Myron H. Nordquist and John Norton Moore (eds), Security Flashpoints: Oil, Islands, Sea Access and Military Confrontation (The Hague: Martinus Nijhoff, 1998), p. 467. 18 “U.S. Said Violating International Treaties”, New York Times, 4 April 2002. The recent report titled “Rule of Power or Rule of Law? An Assessment of U.S. Policies and Actions Regarding Security-Related Treaties”, prepared by the Institute for Energy and Environmental Research and the Lawyers’ Committee on Nuclear Policy in 2002, is available in http://www.ieer.org/reports/treaties/advisory.html (accessed 5 April 2002). 19 Article 123 of the LOS Convention. 20 See Zou Keyuan, “Management of Marine Nature Reserves in China: A Legal Perspective”, EAI Working Paper No. 86, January 2002, p. 27.

1 Maintaining the marine legal order in East Asia 1 See White House Press Release on Letter from Ambassador Prueher to Chinese Minister of Foreign Affairs Tang (11 April 2001), see “State Jurisdiction and Jurisdictional Immunities: Aerial Incident off the Coast of China”, 95 AJIL (2001), 631–632. 2 See “State Jurisdiction and Jurisdictional Immunities: Aerial Incident off the Coast of China”, ibid., at 633. 3 There was a session at the 12th Law of the Sea Institute Annual Conference on “Air Space and the Law of the Sea” as one of the neglected issues in the law of the sea. See J.K.Gamble (ed.), Law of the Sea: Neglected Issues (Law of the Sea Institute, University of Hawaii, 1979), pp. 119–162. 4 Text in 11 LNTS 173. 5 For example, according to Fauchille, “l’air est libre”, cited in D.H.N. Johnson, Rights in Air Space (Manchester: Manchester University Press, 1965), p. 12. 6 Article 1 of the Chicago Convention. Text in 15 UNTS 295. 7 There could be an exception when a coastal state grants such right to foreign aircraft. For example, the Fiji law renders ships and aircraft of all states the right of innocent passage through and over the territorial seas and archipelagic waters. Article 10 (1) of Marine spaces Act, 1977, Act No. 18 of 15 December 1977, as amended by the Marine Spaces (Amendment) Act 1978, Act No. 15 of 6 October 1978, in Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, United Nations

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(DOALOS), The Law of the Sea: National Legislation on the Exclusive Economic Zone (New York: United Nations, 1993), p. 82. However, such exception is made not in accordance with the rules of international law so that the right of innocent passage for aircraft is not a right under international law. 8 See Articles 37–44 of the LOS Convention. 9 As provided, Articles 88–115 and other pertinent rules of international law apply to the EEZ in so far as they are not incompatible with Part V of the LOS Convention on EEZ. Article 58 (2) of the LOS Convention. 10 Article 78 (1) of the LOS Convention. 11 Nicholas Grief, Public International Law in the Airspace of the High Seas (Dordrecht: Martinus Nijhoff, 1994), p. 9. 12 Francisco Orrego Vicuña, The Exclusive Economic Zone: Regime and Legal Nature under International Law (Cambridge: Cambridge University Press, 1989), p. 95. 13 See Al Mour, “The Legal Status of the Exclusive Economic Zone”, 33 REV. EGYPTIENNE DROIT INT’L, 1977, 60–61. 14 As declared, “the United States has long accepted the UN Convention on the Law of the Sea as embodying international law concerning traditional uses of the oceans”. Statement on Oceans and Law of the Sea, Ambassador Sichan Siv, U.S. Representative on the UN Economic and Social Council, 27 November 2001, in http://www.state.gov/g/oes/rls/rm/6796.htm (accessed 12 October 2002). 15 National waters include internal waters, territorial seas, and archipelagic waters, and international waters include contiguous zones, EEZ, high seas, and security zones. See Department of the Navy, The Commander’s Handbook on the Law of Naval Operations, October 1995, 1–4 to 1–6. 16 For example, Cote D’Ivoire (“The sovereign rights exercised by the Republic of Ivory Coast” in the EEZ “shall not impede the exercise of all coastal and non-coastal States of the freedoms of navigation, overflight…” Article 7 of Law No. 77–926 delimiting the Maritime Zones placed under the National Jurisdiction of the Republic of Ivory Coast of 17 November 1977), and Norway (“The establishment of the economic zone shall not affect the right of navigation through or overflight over the waters in question,…” Para. 2 of Act No. 91 of 17 December 1976 relating to the Economic Zone of Norway); see DOALOS (1993), op. cit., pp. 68 and 258. 17 For example, Comoros (“In the exclusive economic zone of Comoros, all States shall enjoy the freedom of navigation and overflight…, provided that such freedoms are compatible with the provisions of the Convention on the Law of the Sea [no threat to the peace], and Third States shall have regard to the rights and duties of Comoros and comply with the laws and regulations enacted by it in accordance with the rules of international law”, Article 8 of Law No. 82005 relating to the delimitation of the maritime zones of the Islamic Federal Republic of Comoros of 6 May 1982), and Kiribati (“Subject to this and any other Act and to the rules of international law, all States and their nationals shall enjoy in the exclusive economic zone the high seas freedoms of navigation and overflight…”, Article 9 of Marine Zones (Declaration) Act, 1983; see DOALOS (1993), ibid., pp. 52–53 and 182. 18 Article 11 of the 1998 Law on the EEZ and the Continental Shelf, PRC. 19 For example, Guyana (“In the exclusive economic zone and the airspace over the

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zone, ships and aircraft of all States shall, subject to the exercise by Guyana of its rights within the zone, enjoy freedom of navigation and overflight”, Article 21 of Maritime Boundaries Act, 1977, Act No. 10 of 30 June 1977), and Myanmar (“Subject to the exercise by Burma of its rights, aircraft of all States shall enjoy freedom of overflight within the airspace over the zone”, Territorial Sea and Maritime Zones Law, 1977, Pyithu Hluttaw Law No. 3 of 9 April 1977), in DOALOS (1993), op. cit., pp. 120 and 231. 20 It is noted that Thai law simply allows international law to govern the freedom of overflight in the EEZ. See Article 3 of Royal Proclamation establishing the Exclusive Economic Zone of the Kingdom of Thailand, 23 February 1981, in DOALOS (1993), ibid., p. 354. 21 According to Haiti law, Haiti exercises exclusive sovereignty over the airspace above its territory and above its jurisdictional waters up to the boundaries established up to 200 nm. See DOALOS (1993), op. cit., p. 128. The Peruvian Constitution promulgated on 29 December 1993 provides that “[t]he State exercises sovereignty and jurisdiction on the airspace over its territory and its adjacent sea up to the limit of two hundred miles, without prejudice to the freedoms of international communication, in conformity with law and the treaties ratified by the State” (Art. 54), in DOALOS, The Law of the Sea: Current Developments in State Practice No. IV (New York: United Nations, 1995), at p. 87. 22 See Article 301 of the LOS Convention. 23 Charles E.Pirtle, “Military Uses of Ocean Space and the Law of the Sea in the New Millennium”, ODIL, Vol. 31, 2000, p. 8. 24 See Boleslaw Adam Boczek, “Peacetime Military Activities in the Exclusive Economic Zone of Third Countries”, ODIL, Vol. 19, 1988, p. 450. 25 Kay Hailbronner, “Freedom of the Air and the Convention on the Law of the Sea”, 77 AJIL (1983), p. 503. 26 See Pirtle, op. cit., pp. 8–9. 27 Shao Jin, “Legal Problems Concerning Military Use of Exclusive Economic Zones and Continental Shelves”, Chinese Yearbook of International Law (in Chinese), 1985, p. 183. 28 For example, “nullum crimen sine lege” (no crime without law); and “nullum crimen nulla poena sine lege” (no criminal punishment without law). 29 Francesco Francioni, “Peacetime Use of Force, Military Activities, and the New Law of the Sea”, Cornell International Law Journal, Vol. 18, 1985, p. 216. 30 As it provides, all nations, with the observance of the international law, enjoy: “… 4. Freedom to exercise internationally recognized rights in connection with navigation and communication”, Article 5 of Law concerning the extension of the territorial sea and the establishment of a contiguous economic zone of 11 June 1978, in DOALOS (1993), op. cit., p. 351. Honduras’ law contains a similar provision (Article 2 of Decree No. 921 of 13 June 1980 on the Utilization of Marine Natural Resources), see DOALOS (1993), ibid., p. 129. 31 Article 9 of the Act concerning the Territorial Sea, the Contiguous Zone, the Exclusive Economic Zone and the Continental Shelf of Brazil and other provisions: Act No. 8617 of 4 January 1993, in DOALOS (1993), op. cit., p. 38.

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32 For details, see Ashley Roach and Robert W.Smith, United States Responses to Excessive Maritime Claims (The Hague: Martinus Nijhoff, 1996), 409–413. 33 Article 16 of Act on the Marine Areas of the Islamic Republic of Iran in the Persian Gulf and the Oman Sea, 1993, in DOALOS (1995), op. cit, p. 67. 34 See Protest from the United States of America, 11 January 1994; and Comments from the Islamic Republic of Iran concerning the viewpoints of the Government of the United States of America regarding the Act on Marine Areas in the Persian Gulf and the Oman Sea, in DOALOS (1995), ibid., pp. 147–151. 35 Articles 14, 15 and 26 of Law No. 60/IV/92 delimiting the maritime areas of the Republic of Cape Verde and revoking Decree-Law No. 126/77 and all legal provisions which contravene this law, in DOALOS (1995), ibid., pp. 37 and 40. 36 Article 58 (3) of the LOS Convention. 37 See Article 12 of the 1998 Law on the EEZ and the Continental Shelf. 38 As China stated, “[a]bout the understanding of subparagraph (f), paragraph 1 of Article 22 of the Agreement: This subparagraph provides that the inspecting State shall ensure that its duly authorized inspectors ‘avoid the use of force except when and to the degree necessary to ensure the safety of the inspectors and where the inspectors are obstructed in the execution of their duties. The degree of force used shall not exceed that reasonably required in the circumstances’. The understanding of the Chinese Government on this provision is that only when the personal safety of the authorized inspectors whose authorization has been duly verified is endangered and their normal inspecting activities are obstructed by violence committed by crew members of fishermen of the fishing vessel under inspection, may the inspectors take appropriate compulsory measures necessary to stop such violence. It should be emphasized that the action of force by the inspectors shall only be taken against those crew members or fishermen committing the violence and must never be taken against the vessel as a whole or other crew members or fishermen.” China’s declaration upon signature, 6 November 1996, in http://www.un.org/Depts/los/164decl.htm#CHINA (accessed 25 April 2001). 39 It was signed on 19 January 1998. Text is reprinted in 37 ILM 530 (1998). 40 See Qian Chuntai, “Analysis on Sino-U.S. Consultation Mechanism for Military Maritime Safety”, Contemporary International Relations (in Chinese), No. 4, 2002, p. 10. 41 See Article 298 of the LOS Convention. 42 Li Qin, “Reflections on Sino-American Air Collision Incident in the Perspective of International Law”, People’s Daily (in Chinese), 16 April 2001, p. 4. 43 According to some other reports, Japan sent altogether 25 patrol vessels and 14 aircraft to chase the mysterious boat. See Lu Lude, “Japan cannot do as it pleases in China’s EEZ”, China Ocean News (in Chinese), 8 March 2002. 44 See Peter Landers, “Conflict Shows a Gray Area in Japan Law—Tokyo Weighs Revision to Boost Defense Measures”, Asian Wall Street Journal, 26 December 2001, p. 3. 45 “Boat sinks after being hit by Japanese fire”, China Daily, 24 December 2001; and “China reiterates concern over Japan’s use of force”, Kyodo News, 25 December 2001.

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46 “China asks Japan to provide more information about sinking of unidentified ship”, BBC Monitoring, 23 December 2001. 47 For example, it is stipulated in China’s Law on the Territorial Sea (Art. 14) and Law on the EEZ (Art. 12). 48 Article 3 and Article 5 of Japan’s Law on the Territorial Sea and the Contiguous Zone. Text is available in Office of Ocean Affairs, Bureau of Ocean and International Environmental and Scientific Affairs, U.S. Department of State, Limits in the Seas, No. 120: Straight Baseline and Territorial Sea Claims: Japan, 30 April 1998, 19–21. 49 See Tang Tianri, “Mystery of Japan’s Show-off of Its Maritime Strength”, Outlook Weekly (in Chinese), 1 January 2002, p. 53. 50 See paras. 139–144, Judgment of 1 July 1999, available in http://www.itlos.org/start2_en.html (accessed 17 August 2002). 51 See paras. 146–152, ibid. 52 It is reported that the pursuit lasted as long as 8 hours. See Guan Kejian, “No Legal Basis for Japan to Use Force”, in http://www.peopledaily.com.cn/GB/guoji/24/20011225/635021.html (accessed 26 December 2001). 53 The UN Charter in http://www.un.org/aboutun/charter/index.html (accessed 21 August 2002). 54 Article 22 (1)-(f) of the 1995 Agreement. Text is available in http://www.un.org/Depts/los/convention_agreements/convention_overview_fish_stoc (access date: 21 August 2002). 55 Article 12 of the Sino-Vietnamese Fishery Agreement. For details, see Zou Keyuan, “Sino-Vietnamese Fishery Agreement for the Gulf of Tonkin”, IJMCL, Vol. 17(1), 2002, 127–148. 56 Kazunori Takada, “Japan: Legal issues hang over Japan firing on mystery ship”, Reuters English News Service, 27 December 2001. 57 Article 20 of Law No. 28 of 27 April 1948 as amended through Law No. 102 of 1999 and Law No. 114 of 2001. (on file with the author) 58 See Antonio Cassese, “Terrorism is Also Disrupting Some Crucial Legal Cate gories of International Law”, EJIL, Vol. 12 (5), 2001, p. 995. 59 Cassese, ibid., p. 996. 60 ICJ, Corfu Channel Case (Merits), Judgment of 9 April 1949, in http://www.icjcij.org/icjwww/idecisions/isummaries/Iccsummary490409.htm (accessed 19 August 2002). 61 See Stanimir A.Alexandrov, Self-Defense Against the Use of Force in International Law (The Hague: Kluwer Law International, 1996), p. 123. 62 ICJ Reports 1986, p. 94, para. 176; and also in ICJ, Advisory Opinion of 8 July 1996 on “Legality of the Threat or Use of Nuclear Weapons”, available in http://www.icj-ij.org/icjwww/idecisions/isummaries/iunanauirmiary960708.htm (accessed 17 June 2002). 63 Ibid. 64 See para. 155, Judgment of 1 July 1999, available in http://www.itlos.org/start2_en.html (accessed 17 August 2002).

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65 Para. 159, ibid. 66 Mark J.Valencia, “Japan’s rights and wrongs in the ‘fishing boat’ incident”, The Japan Times, 10 January 2002. 67 See Office of Policy, Law and Regulation, State Oceanic Administration (ed.), supra note 74, 461–465. 68 See “Japan’s top official divided over salvage of ship”, Kyodo News, 25 December 2001. (Because the area is within China’s EEZ, Japan needs to discuss any actions in the area with Beijing. “There are options such as salvaging the ship or sending divers, but we would need the consent of China”, Kazuhiro Sugita, deputy chief cabinet secretary for crisis management, was quoted as saying in a meeting of top officials of the government and the ruling coalition in the evening.) 69 See Office of Policy, Law and Regulation, State Oceanic Administration (ed.), Collection of the Sea Laws and Regulations of the People’s Republic of China (Beijing: Ocean Press, 1998), 289–296. 70 See “Clash at Sea Sparks Verbal Shots”, The Asian Wall Street Journal, 27 December 2001, at p. 4 (According to a Japanese officer, a private company would probably be needed to raise the ship as the Self-Defense Forces and coast guard are unequipped to carry out the operation). 71 See “Chinese side monitor under the law Japan’s investigation of the sunken ship in the East China Sea”, People’s Daily (in Chinese), 30 April 2002, at p. 4; and “China grants permission for salvage for ‘mystery’ ship sunk by Japan”, China Daily, 30 April 2002. 72 See “Remarks of the Foreign Ministry Spokesman”, People’s Daily (in Chinese), 19 June 2002, p. 4. 73 Article 312 of the LOS Convention (“1. After the expiry of a period of 10 years from the date of entry into force of this Convention, a State Party may, by written communication addressed to the Secretary-General of the United Nations, propose specific amendments to this Convention, other than those relating to activities in the Area, and request the convening of a conference to consider such proposed amendments. The Secretary-General shall circulate such communication to all States Parties. If, within 12 months from the date of the circulation of the communication, not less than one half of the States Parties reply favorably to the request, the Secretary-General shall convene the conference. 2. The decision-making procedure applicable at the amendment conference shall be the same as that applicable at the Third United Nations Conference on the Law of the Sea unless otherwise decided by the conference. The conference should make every effort to reach agreement on any amendments by way of consensus and there should be no voting on them until all efforts at consensus have been exhausted.”)

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2 Basic marine laws of mainland China and Taiwan: comparisons and regional implications 1 The full texts of these two laws can be found in Ministry of Interior, The Law on the Territorial Sea and the Contiguous Zone of the Republic of China and the Law on the Exclusive Economic Zone and the Continental Shelf of the Republic of China (in Chinese), Taiwan, February 1998. 2 The full text can be found in People’s Daily (in Chinese), 30 June 1998. An unofficial English version translated by this author is published in MIMA Bulletin, Vol. 7 (1), 1999:27–29. 3 The full text can be found in People’s Daily (in Chinese), 26 February 1992 and the official English version is reprinted in Bureau of Oceans and International Environmental and Scientific Affairs, United States Department of State (BOIESA), Limits in the Seas: Straight Baseline Claim: China, No. 117, 9 July 1996, 11–14. 4 See “The Meaning of ‘One China’” adopted by the National Unification Council, Taipei, 1 August 1992. Available in http://www.mac.gov.tw/.lpolicy/chinae.htm (accessed 14 October 1998). 5 See Luo Yuru and Zeng Chengkui (eds), Marine Affairs of the Contemporary China (Beijing: Social Science Press, 1985) (in Chinese), pp. 1–2. 6 Lu Shuoben (ed.), The Marine Legal System (Beijing: Guangming Daily Publishing House, 1992) (in Chinese), p. 6. 7 See “The Chinese White Paper on Cross-Strait Relations”, August 1993, reprinted in Jean-Marie Henckaerts (ed.), The International Status of Taiwan in the New World Order: Legal and Political Considerations (London: Kluwer Law International, 1996), p. 273. 8 James Ling-yang Chen, Crossing the Taiwan Strait: The Danger and the Opportunity (Taipei: Cross-Strait Interflow Prospect Foundation, 1998), p. 8. 9 See Article 32 of the Statute Governing the Relations between the People of the Taiwan Area and the Mainland Area. 10 Song Yann-huei, “Analytical Comments on Developments, Implications and Influence of Our Maritime Legislation”, New Century Think-Tank Forum (Taiwan) (in Chinese), Vol. 1, 1998, p. 98. 11 See Article 3 of PRC Law and Article 3 of ROC Law. 12 The Declaration on China’s Territorial Sea is reprinted in Office of Laws and Regulations, Department of Ocean Management and Monitoring, State Oceanic Administration (ed.), Collection of the Sea Laws and Regulations of the People’s Republic of China (Beijing: Ocean Press, 1991), pp. 3–4. In addition, the 1983 Law on Maritime Traffic Safety of PRC also stipulates the permission requirement. See Office of Laws and Regulations, ibid., pp. 237–238. 13 The LOS Convention defines the “passage” as “navigation through the territorial sea for the purpose of: (a) traversing that sea without entering internal waters or

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calling at a roadstead or port facility outside internal waters; or (b) proceeding to or from internal waters or a call at such roadstead or port facility. Passage shall be continuous and expeditious”. Article 18 of the LOS Convention. 14 People’s Daily (Overseas Edition) (in Chinese), 16 May 1996. 15 For details, see Zou Keyuan, “Innocent Passage for Warships: The Chinese Doctrine and Practice”, ODIL, Vol. 29, 1998, 195–223. 16 Article 1 of the Regulations on the Control of Foreign Military Vessels Entering into the Territorial Waters and Harbors, ROC, 9 December 1980, provides that all foreign military vessels intending to enter into ROC’s territorial waters or harbors shall solicit approval from the ROC Ministry of Foreign Affairs with written favor through flag-states government, embassy, consulate, or representative office at least ten days prior to the scheduled arrival date. Cited in Nien-Tsu Alfred Hu, “The Two Chinese Territorial Sea Laws: Their Implications and Comparisons”, Ocean and Coastal Management, Vol. 20, 1993, p. 95, n. 17. 17 See Article 3 of the PRC Territorial Sea Law. 18 People’s Daily, 16 May 1996. 19 See BOIESA, op. cit., pp. 1–2. 20 See BOIESA, ibid., p. 5. 21 See BIOESA, ibid., p. 8. For further reference, see Hyun-Soo Kim, “The 1992 Chinese Territorial Sea Law in the Light of the UN Convention”, ICLQ, Vol. 43, 1994, 896–899; and Daniel J.Dzurek, “The People’s Republic of China Straight Baseline Claim”, IBRU Boundary and Security Bulletin, Summer 1996, 77–89. 22 See Hu, op. cit., p. 96, n. 27. 23 See United Daily (Taipei), 1 January 1999. 24 Hu, ibid., p. 93. 25 It should be pointed out that within the breadth of 24 nm, the sea belt of 12 nm from the baseline is the territorial sea so that the actual area of the contiguous zone is 12 nm from the outer limit of the territorial sea. 26 See Jeanette Greenfield, China’s Practice in the Law of the Sea (Oxford: Clarendon Press, 1992), p. 86. 27 See Ni Xuan and Zhao Enbo, Knowledge of the Law on the Territorial Sea and the Contiguous Zone (Beijing: Ocean Press, 1993) (in Chinese), p. 84. 28 See Zhang Haiwen, The Legal Regime Applicable to the South China Sea Islands, PhD Dissertation (in Chinese), Peking University, 1995, p. 56. 29 See “Working Paper on Sea Area within the Limits of National Jurisdiction” submitted by the Chinese Delegation, 16 July 1973. UN Doc. A/AC.138/SC.II/L34, reprinted in Greenfield, op. cit., p. 232. 30 For reference, see Ying-jeou Ma, Legal Problems of Seabed Boundary Delimitation in the East China Sea, Occasional Papers/Reprints Series in Contemporary Asian Studies, University of Maryland, No. 3, 1984 (62); and Choon-ho Park, Continental Shelf Issues in the Yellow Sea and the East China Sea, Occasional Paper No. 15, Law of the Sea Institute, University of Rhode Island, September 1972. 31 People’s Daily (Overseas Edition) (in Chinese), 16 May 1996. 32 The only difference is the word “agreement” used instead of “consultation”. 33 See Song, op. cit., p. 90.

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34 People’s Daily (Overseas Edition) (in Chinese), 16 May 1996. 35 For details, see Zou Keyuan, “International Legal Regime on the Anadromous Fisheries in the North Pacific”, in Bureau of Fisheries, Ministry of Agriculture, Proceedings of the Workshop on International Fishery Laws and Regulations (Beijing, October 1995) (in Chinese), pp. 160–167. 36 The fishery agreements of multilateral nature or of bilateral nature but only allowing the Chinese vessels for fishing operations in water areas of other countries are not included. 37 See Chapter 6. 38 See Fu Kuen-chen, “Dispute over the Detention of Fishing Vessels in the Law of the Sea Perspective”, Youth Daily (in Chinese), 8 May 1989; and see also James T.Shen, Political and Legal Implications of the Concept of the Exclusive Economic Zone as Applied to the Republic of China (Taipei: Cross-Strait Interflow Prospect Foundation, 1998), p. 30. 39 It is borrowed from Article 81 of the LOS Convention. 40 Article 79 of the LOS Convention. 41 For details, see Office of Laws and Regulations, State Oceanic Administration, PRC, Explanations of the Regulations on the Management of Marine Scientific Research Involving Foreigners (Beijing, October 1996) (in Chinese), 1–31. 42 Article 8 of the Basic Law, in The Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (Beijing: Law Press, 1990), p. 87. 43 See The Basic Law, ibid., 171–172; “Decision of the Standing Committee of the National People’s Congress on Adding and Subtracting National Laws Listed in Appendix 3 of the Basic Law of the People’s Republic of China”, in Gazette of the State Council of the People’s Republic of China (in Chinese), No. 23 (1997), p. 1031; and People’s Daily (in Chinese), 29 October 1998.

3 The Chinese traditional maritime boundary line in the South China Sea and its legal consequences 1 In a broad sense, the Gulf of Thailand is part of the whole South China Sea. However, it is not counted due to its irrelevance to the subject matter of the present study. 2 J.R.V.Prescott, The Maritime Political Boundaries of the World (London: Methuen, 1985), p. 209. 3 According to Hungdah Chiu, there are 127 islands in the South China Sea based upon a survey conducted during 1946–1947 sponsored by the then Chinese Ministry of Internal Affairs. Hungdah Chiu, “South China Sea Islands: Implications for Delimiting the Seabed and Future Shipping Routes”, China Quarterly, No. 72, 1977, p. 756.

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4 According to the LOS Convention, “archipelago” means a group of islands, including parts of islands, interconnecting waters, and other natural features which are so closely interrelated that such islands, waters, and other natural features form an intrinsic geographical, economic, and political entity, or which historically have been regarded as such. Article 46 (b) of the LOS Convention. Clearly, the “qundao” in the South China Sea cannot be fitted into this definition. 5 See Jun Jiwu, “Zhongsha Archipelagos in the Middle South China Sea”, in Xin Yejiang (ed.), China’s South China Sea Islands (Haiko: Hainan International Information Publishing Centre, 1996) (in Chinese), p. 131. 6 The Chinese name of Scarborough Reef is Huangyan Dao, located 164 nm southeast from the Macclesfield Bank. Such a long distance of separation may defeat the argument that it is part of the Macclesfields in geographical standards. 7 A main reason that there is no other claimant for the Macclesfield Bank is that this Bank is permanently submerged under the water. Otherwise, Vietnam or the Philippines might have claimed it as well. 8 The other two factors are: military confrontation in the Korean Peninsular, and the controversial US—Japan military alliance and Taiwan’s separatist activities. See Yan Xuetong, “Co-operation Key to Regional Peace”, China Daily, 27 March 1998, p. 4. 9 The use of the Chinese name of the line itself in this book does not indicate that this author has confirmed or denied the view that the line is a Chinese boundary line. 10 See Steven Kuan-Tsyh Yu, “Legal Nature and Status of the U-Shaped Line and the Inside Waters in Our South China Sea” (in Chinese), paper presented to the Conference on Hainan and the South China Sea, 16–18 October 1995, Taipei, 1–13. 11 M.J.Valencia, J.M.van Dyke and N.A.Ludwig, Sharing the Resources of the South China Sea (Dordrecht: Martinus Nijhoff, 1997), p. 24. 12 Ji Guoxing, “China Versus South China Sea Security”, Security Dialogue, Vol. 29 (1), 1998, p. 103. 13 Chi-kin Lo, China’s Policy towards Territorial Disputes: The Case of the South China Sea Islands (London and New York: Routledge, 1989), p. 45. 14 Ian Townsend-Gault, “China Ratifies UNCLOS”, 16 May 1996, in http://wwwibru.dur.ac.uk/cgi-bin/data.p1 (accessed 14 April 1998). 15 Daniel J.Dzurek, “The Spratly Islands Dispute: Who’s on First?” IBRU Maritime Briefing, Vol. 2(1), 1996, p. 11. 16 Hanns J.Buchholz, Law of the Sea Zones in the Pacific Ocean (Singapore: Institute of Southeast Asian Studies, 1987), p. 43. 17 The map was named as “the Chinese territorial map before the Qianglong-Jiaqing period” (AD 1736–1820) of the Qing Dynasty in his compilation: New Geographical Atlas of the Republic of China. See Han Zhenhua (ed.), A Compilation of Historical Materials on China’s South China Sea Islands (Beijing: Oriental Press, 1988) (in Chinese), p. 355. 18 For example, “the Chinese map of boundary changes” in Tu Shichong (ed.), The New Chinese Situation Atlas published in May 1927; and “the Chinese map of territorial changes” in Chen Duo (ed.), China’s Model Atlas published in July 1933. Han, ibid., 355–356.

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19 See Zhang Haiwen, The Legal System Applicable to the Islands in the South China Sea, PhD dissertation (in Chinese), Peking University, 1995, p. 43 (on file with the author). 20 For example, Chen Duo (ed.), Newly-Made Chinese Atlas published in August 1934; Tan Lian and Chen Kaoji (eds), Civilised Geography of China published in September 1936; and Ge Shuichen (ed.), Newly-Made Large Hanging Atlas published in December 1939. See Han, op. cit., 356–359. 21 See Zhang, op. cit., p. 46. 22 See Ministry of Interior, An Outline of the Geography of the South China Sea Islands, National Territory Series, 1947, fig. 11, p. 861; as cited in J.K.T. Chao, “South China Sea: Boundary Problems Relating to the Nansha and Hsisha Islands”, in R.D.Hill et al. (eds), Fishing in Troubled Waters (University of Hong Kong, 1991), p. 88. 23 See Han, op. cit., 181–184. 24 In 1907 a Japanese merchant named Nishizawa Yoshiji, accompanied by more than 100 compatriots, had settled on Pratas. On hearing of this, the Foreign Ministry of Peking dispatched a military detachment, with orders to explore the island and enter into talks with the Japanese occupants. In addition, the governors of Kuangsi and Kuangtung negotiated with the Japanese consul in Canton. The outcome of these negotiations was that China paid Nishizawa an indemnity of 130,000 silver dollars and Japan, in her turn, recognized the Pratas archipelago as Chinese territory. Dieter Heinzig, Disputed Islands in the South China Sea (Wiesbaden: Otto Harrassowitz, 1976), p. 26. 25 See Office of Laws and Regulations, Department of Ocean Management and Monitoring, State Oceanic Administration (ed.), Collection of the Sea Laws and Regulations of the People’s Republic of China (Beijing: Ocean Press, 1991) (in Chinese and English), p. 3. 26 See Office of Laws and Regulations, ibid., 3–4. 27 The Chinese text may be found in People’s Daily, 26 February 1992 and the English version is reprinted in United States Department of State, Limits in the Seas: Straight Baseline Claim: China, No. 117, 9 July 1996, 11–14. 28 See People’s Daily (in Chinese), 16 May 1996. 29 Vanguard Bank lies 22 nm southwest from Prince Consort Bank (Xiwei Tan) at 7° 32′N, 109˚45′E. The linear crest of this bank is aligned west-east and within the 18.3 m isobath measures 16 nm long and 3 nm wide. The least recorded depth is 16.5 metres. David Hancox and Victor Prescott, “A Geographical Description of the Spratly Islands and an Account of Hydrographic Surveys Amongst Those Islands”, Maritime Briefing, Vol. 1(6), 1995, p. 16. 30 Valencia et al., op. cit., p. 27. 31 Straits Times, 21 May 1992, p. 7. 32 Xinhua News Agency, Beijing, 17 April 1996. 33 See Cheng-yi Lin, “Taiwan’s South China Sea Policy”, Asian Survey, Vol. 37 (4), 1997, 324–325. 34 See Kuan-Ming Sun, “Policy of the Republic of China towards the South China Sea”, Marine Policy, Vol. 19 (5), 1995, p. 408.

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35 See Central Daily News (in Chinese), 9 August 1993, p. 1. 36 Central News Agency (CAN) Taiwan, 30 December 1997. 37 The Law on the Territorial Sea and the Contiguous Zone of the Republic of China was promulgated on 21 January 1998 (on file with the author). 38 See “China’s Indisputable Sovereignty over the Paracel Islands and the Spratly Islands”, Foreign Ministry Document, 30 January 1980, reprinted in Chinese Society of International Law (ed.), International Law Materials, No. 5 (Beijing: Law Publishing House, 1990) (in Chinese), pp. 116–117. 39 See Choon-ho Park, East Asia and the Law of the Sea (Seoul: Seoul National University Press, 1983), pp. 211–213. 40 See Statement of the Ministry of Foreign Affairs of the Socialist Republic of Vietnam on the Agreement between Chinese and US Oil Companies for the Exploration and Exploitation of Oil and Gas on the Continental Shelf of Vietnam (Hanoi: Ministry of Foreign Affairs, 16 May 1992); as cited in Shee Poon Kim, “China’s Changing Policies toward the South China Sea”, American Asian Review, Vol. 12 (4), 1994, p. 69, n. 5. 41 Huynh Minh Chinh, “Sovereignty of Vietnam over Hoang Sa (Paracels) and Truong Sa (Spratlys) and Peaceful Settlement of Disputes in the Bien Dong Sea (South China Sea)”, in Conference Proceedings on “ASEAN in the 21st Century: Opportunities and Challenges” (Hanoi: Institute of International Relations, March 1996), pp. 98–99. 42 Radio Australia, 16 January 1997. 43 Hasjim Djalal, “Conflicting Territorial and Jurisdictional Claims in the South China Sea”, Indonesian Quarterly, Vol. 7 (3), p. 42. 44 B.A.Hamzah, “Conflicting Jurisdiction Problems in the Spratlys: Scope for Conflict Resolution”, paper presented to the Second Workshop on Managing Potential Conflicts in the South China Sea, Bandung, Indonesia, 15–18 July 1991, pp. 199– 200. 45 Heizig, op. cit., p. 38, n. 121. 46 Park, op. cit., p. 216. 47 The law was promulgated on 26 June 1998. See People’s Daily (in Chinese), 30 June 1998. 48 Article 121 (3) of the LOS Convention. 49 As Catley and Keliat put forward, “there has been no demarcation of the EEZ areas so far, because the territories on which the EEZs would be based are themselves disputed. It is impossible to implement an EEZ unless the bases from which to draw the maritime boundary lines are agreed upon”. See Bob Catley and Makmur Keliat, Spratlys: The Dispute in the South China Sea (Aldershot, England: Ashgate, 1997), p. 9. 50 The concept of presential sea (mar presencial) was introduced by the legislation on fisheries and aquaculture of Chile (Decree No. 430 of 28 September 1991). The contents of this new concept are not completely clear. In principle, it seems to be a zone of high seas adjacent to the EEZ, where the coastal State wants “to be present” without excluding the others. See G.Francalanci and T.Scovazzi (eds), Lines in the Sea (The Hague: Martinus Nijhoff, 1994), p. 148. For details, see Christopher

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Joyner, “Chile’s Presential Sea Proposal: Implications for Straddling Stocks and the International Law of Fisheries”, ODIL, Vol. 24, 1993, 99–121; and Jane G.Dalton, “The Chilean Mar Presencial: A Harmless Concept or a Dangerous Precedent?” IJMCL, Vol. 8 (3), 1993, 397–418. 51 See Articles 46 and 47 of the LOS Convention. 52 Their practices are relating to their respective mid-ocean islands. For Denmark this is the Faroe Islands, for Ecuador the Galapagos, and for Norway the Svarbard. However, such practices have been criticized as excessive claims against which the United States protested. See J.Ashley Roach and Robert W.Smith, United States Responses to Excessive Maritime Claims (The Hague: Martinus Nijhoff, 1996), p. 214. 53 Working Paper on Sea Area within the Limits of National Jurisdiction, Submitted by the Chinese Delegation, 16 July 1973; reprinted in Jeanette Greenfield, China’s Practice in the Law of the Sea (Oxford: Clarendon Press, 1992), p. 230. The original Chinese version may be found in Division of International Law of the Department of Law, Peking University (ed.), Collected Materials on the Law of the Sea (Beijing: People’s Press, 1974) (in Chinese), p. 74. 54 See UN Doc., A/51/645, 15 October 1996, p. 12. 55 This view has been officially endorsed. For instance, the Chair of the Research, Development and Evaluation Commission of Taiwan’s Executive Yuan explained in a press conference that the “maritime area within the U-line…is the ROC’s historical waters, which, although it does not have the status of internal waters, is analogous to archipelagic waters under the 1982 UN Convention on the Law of the Sea”. As quoted in Valencia et al., op. cit., p. 66, n. 99. 56 See Article 76 of the LOS Convention. 57 One Chinese scholar advocates to “define the 200 nautical mile continental shelf instead of the nine-dashed intermittent line” in the South China Sea. See Ji, op. cit., p. 103. 58 See Greenfield, op. cit., 166–167. 59 The Convention on the Continental Shelf of 1958, 499 UNTS 311 (1964), No. 7302. 60 As Dzurek observes, the dashed lines generally follow the 200 metres isobath. Dzurek, op. cit., p. 12. 61 See Fu Kuen-chen, “The Legal Status of the South China Sea and the Feasibility of the Equal Co-operation across the Taiwan Strait”(in Chinese), paper presented to the Conference on Hainan and the South China Sea, 16–18 October 1995, Taipei, p. 4. 62 He once wrote: “Although the Crestone concession is clearly on Vietnam’s geologic continental shelf and within 350 nm of its coast China argues that the area is within its ‘historical line’ claim. However, he did not provide any sources to show where “the Chinese argument” came from. Mark J.Valencia, “Spratly Solution Still at Sea”, Pacific Review, Vol. 6 (2), 1993, p. 158. 63 The respective sea areas resulting from the alleged encroachments are: Vietnam, 1,170,000 square kilometers; the Philippines, 620,000 square kilometers; Malaysia, 170,000 square kilometers; Brunei, 50,000 square kilometres; and Indonesia, 35,000 square kilometers. See Chen Shijian (ed.), The Collection of Names of and Materials

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on the South China Sea Islands (Guangzhou: Guangdong Atlas Publishing House, 1987) (in Chinese), p. 381. 64 As quoted in Ni Jianmin (ed.), Ocean China (Beijing: China International Broadcasting Publishing House, 1997) (in Chinese), at p. 368. See also “The Committee of Propaganda Activities for the International Year of Ocean Established”, People’s Daily (in Chinese), 18 February 1998, p. 3. 65 See Ni (ed.), ibid., p. 412. 66 See Jonathan I.Charney, “Central East Asian Maritime Boundaries and the Law of the Sea”, AJIL, Vol. 89, 1995, p. 736. 67 Please note the difference between the early statements and recent statements made by the Chinese Government regarding the South China Sea islands. 68 Song Jian, “Bright Prospects for the Development of Islands”, Ocean Development and Management (in Chinese), 1996, No. 3, p. 6. 69 One overseas Chinese scholar advocated that “China should reserve the right to take military actions to take back those islands and sea areas being unlawfully occupied and exploited by foreign states”. See Jianming Shen, “International Law Rules and Historical Evidences Supporting China’s Title to the South China Sea Islands”, Hastings International and Comparative Law Review, Vol. 21 (1), 1997, p. 75. 70 It is worth recalling that just after the Nationalist Government retreated to Taiwan, the situation across the Taiwan Strait was still very intensive. It is revealed that during the early 1950s, the then vice-president in Taiwan expressed that in principle it would be better to let the friendly neighbor countries use the Spratly Islands rather than let the [Chinese communist] bandits occupy them. See Committee of Research and Planning of the Foreign Ministry, Republic of China (ed.), A Collection of Archives on the South China Sea Islands, Vol. 2 (Taipei, 31 May 1995) (in Chinese), pp. 911–912.

4 Dispute over the Scarborough Reef 1 See Chen Shijian (ed.), The Collection of Names and Materials on the South China Sea Islands (Guangzhou: Guangdong Atlas Publishing House, 1987) (in Chinese), pp. 181 and 345. 2 For example, Dieter Heinzig, Disputed Islands in the South China Sea (Wiesbaden: Otto Harrassowitz, 1976), esp. p. 19. 3 For example, Peter Kien-hong Yu, The Four Archipelagoes in the South China Sea (Taipei: Council for Advanced Policy Studies, 1991), esp. pp. 20–21; and Zhao Lihai, Study on Issues of the Law of the Sea (Beijing: Peking University Press, 1996) (in Chinese), p. 25. 4 The spokesman of the Chinese embassy in Manila, Hao Yinbiao said in a statement that the Scarborough Reef belonged to China’s Zhongsha Islands. See Strait Times,

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14 May 1997. 5 R.Haller-Trost, in http://www.mailbase.ac.uk/lists/int-boundaries/1997–05/0017.htm (accessed 21 July 1998). 6 Not only is the Western world unclear of this conception, but also some Chinese legal scholars define the Zhongsha Islands in an erroneous way. The Huangyan Island is not included and is regarded as an isolated island. See, for example, Jianmin Shen, “International Law Rules and Historical Evidences Supporting China’s Title to the South China Sea Islands”, Hastings International and Comparative Law Review, Vol. 21, 1997, p. 3. 7 The name of the Zhongsha Islands at that time was Nansha Islands while the name of the Spratly Islands was Tuansha Islands. See Chen (ed.), op. cit., p. 41. 8 Chen, ibid., p. 48. 9 Chen, ibid., p. 55. The whole list of the names of the South China Sea islands was also printed in People’s Daily (in Chinese) dated 25 April 1983. 10 See China Times (in Chinese), 1 January 1999. The problem with the ROC claim is that the baselines only encircle the Scarborough Reef alone while disregarding the other parts of the Zhongsha Islands, such as the Macclesfield Bank. 11 See Xu Zongfan and Zhong Jinliang, “Topographical Features of the Huangyan Island”, in Chen (ed.), op. cit., p. 589. 12 See Reuters World Service, 3 January 1997. As is said, the Reef “could choke to death the commercial traffic between Asia, the United States and the Philippines”. See “Manila vows to keep China off isle”, The Straits Times, 19 May 1997. 13 Mark J.Valencia, Jon M.Van Dyke and Noel A.Ludwig, Sharing the Resources of the South China Sea (Dordrecht: Martinus Nijhoff, 1997), p. 43. 14 Victor Prescott, The South China Sea: Limits of National Claims, MIMA Paper (Kuala Lumpur: Maritime Institute of Malaysia, 1996), p. 39. 15 The Strait Times, 14 May 1997. 16 See Shao Hsun-cheng, “Chinese Islands in the South China Sea”, People’s China, No. 13; reprinted in J.A.Cohen and Hungdah Chiu, People’s China and International Law: A Documentary Study (Princeton: Princeton University Press, 1974), Vol. 1, pp. 344–345. 17 See Zhang Haiwen, The Legal Regime Applicable to the South China Sea Islands (in Chinese), Doctoral Dissertation, Peking University, 1995, p. 75 (on file with the author). 18 Office of Laws and Regulations, Department of Ocean Management and Monitoring, State Oceanic Administration (ed.), Collection of the Sea Laws and Regulations of the People’s Republic of China (Beijing: Ocean Press, 1991), p. 3. 19 Article 2, Law on the Territorial Sea and the Contiguous Zone, 25 February 1992, reprinted in BOIESA, Limits in the Seas: Straight Baseline Claim: China, No. 117, 9 July l996, p. 11. 20 The scientific investigations were conducted by the South China Sea Institute of the Chinese Academy of Sciences. See Xin Yejiang (ed.), China’s South China Sea Islands (Haikou: Hainan International Information Publishing Centre, 1996) (in Chinese), p. 131. 21 Statement of the Philippine Foreign Affairs Secretary Domingo Siazon before the

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Public Hearing of the Senate Foreign Relations and Defence Committees on 5 June 1997 (on file with the author). 22 See http://www.mailbase.ac.uk/cgi-bin/…int-boundaries&1997– 05&c55205&64889 (accessed 22 May 1998). 23 Siazon, op. cit. 24 The Presidential Decree No. 1596 defines the area of the Philippine claim as: “[t]he area within the following boundaries: from a point [on the Philippine Treaty Limits] at latitude 7°40′ North and longitude 116˚00′ East of Greenwich, thence due west along the parallel of 7°40′N to its intersection with the meridian of longitude 112˚10′E, thence due north along the meridian of 112°10′E to its intersection with the parallel of 9°00′N, thence northeastward to the intersection of the parallel of 12° 00′N with the meridian of longitude 114°30′E, thence due East along the parallel of 12°00′N to its intersection with the meridian of 118˚00′E, thence due South along the meridian of longitude 118˚00′E to its intersection with the parallel of 10°00′N, thence Southeastwards to the point of beginning at 7°40′N, latitude and 116°00′E longitude; including the sea-bed, sub-soil, continental margin and airspace shall belong and be subject to the sovereignty of the Philippines. Such area is hereby constituted as a distinct and separate municipality of the Province of Palawan and shall be known as ‘Kalayaan’”. See “Declaring Certain Areas Part of the Philippine Territory and Providing Their Government and Administration”, Presidential Decree No. 1596, reprinted in Aileen San Pablo-Baviera (ed.), The South China Sea Disputes: Philippine Perspectives (Quezon City, Philippines: Philippine China Development Resource Center and Philippine Association for Chinese Studies, 1992), p. 55. 25 Wilfrido V.Villacorta, “The Philippine Territorial Claim in the South China Sea”, in R.D.Hill, Norman G.Owen and E.V.Roberts (eds), Fishing in Troubled Waters (Hong Kong: Centre of Asian Studies, University of Hong Kong, 1991), pp. 210– 211. 26 Prescott, op. cit., p. 2. 27 Presidential Decree No. 1599, reprinted in Philippine Yearbook of International Law, Vol. 8, 1982, D14-D15. 28 See Pepper Rodriguez, “Manila to Beef up Forces in Spratlys”, UPI (Manila), 15 February 1995; and “With Eyes Wide Open”, Malaya (Quezon City), 14 February 1995; cited in Daniel J.Dzurek, “China Occupies Mischief Reef in Latest Spratly Gambit”, IBRU Boundary and Security Bulletin, Vol. 3 (1), 1995, p. 71, no. 34. 29 Dzurek, ibid., p. 68. 30 “Judge drops charges against 21 Chinese fishermen”, China News (Taipei), 11 July 1997. 31 Yehuda Z.Blum, Historic Titles in International Law (The Hague: Martinus Nijhoff, 1965), p. 176. 32 C.H.M.Waldock, “The Legal Basis of Claims to the Continental Shelf”, in Grotius Transactions, Vol. 36, 1950, p. 120; and “Disputed Sovereignty in the Falkland Islands Dependencies”, British Yearbook of International Law, Vol. 25, 1948, p. 344. 33 As to the concept of prescription, see Zou Keyuan, “Territory in International

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Law”, in Wang Tieya (ed.), International Law (Beijing: Law Press, 1995) (in Chinese), p. 237. 34 For reference, see the Case on Sovereignty over Certain Frontier Land (Belgium/Netherlands) before the ICJ, ICJ Report, 1959, pp. 209–262. 35 Jorge Coquia, “Philippine Position on the South China Sea Issues”, in PabloBaviera (ed.), op. cit., p. 53. 36 See Cheng Jiachuan, “Conditions of the Scarborough Reef and Countermoves” in China Institute for Marine Development Strategy (ed.), Proceedings of the Conference on the Struggle Situation and Strategy of the South China Sea, Beijing, 1991 (in Chinese), p. 89. In China’s view, the existence of the Scarborough Reef is not only for Maccelsfield Bank per se, but also for the potential maritime zones which could be generated from the whole Zhongsha Islands. 37 BBC Worldwide Monitoring, 12 August 1998. 38 Article 2 (3) of the Charter of the United Nations. 39 See Articles 279–285 of the LOS Convention. 40 See “Code of Conduct between People’s Republic of China and the Philippines” (on file with the author). 41 Agence France Presse, 30 July 1998. 42 Business World (Manila), 31 July 1998. 43 For example, Goh Chok Tong, the Prime Minister of Singapore once called for the two sides to submit their dispute to the International Court of Justice for settlement. Ming Pao (Hong Kong) (in Chinese), 8 June 1997. 44 This is further confirmed by the following remarks made by the legal adviser to the Philippine Foreign Ministry: “It is hoped that all the states in Southeast Asia with adjacent maritime boundaries will be able to conclude agreements, thus avoiding expensive and unfriendly judicial or arbitral methods.” Jorge R. Coquia, “Maritime Boundary Problems in the South China Sea”, U.B.C. Law Review, Vol. 24, 1990, p. 123. 45 Alice D.Ba, “China, Oil and the South China Sea: Prospects for Joint Development”, American Asian Review, Vol. 12 (4), 1994, p. 138. 46 “Wu Bangguo proposes a multiple cooperation for oil in the Spratly Islands”, Lianhe Zaobao, 1 September 2003. 47 “Chinese, Philippine firms join forces to look for oil in South China Sea”, Agence France Presse, 13 November 2003. 48 See Robert W.Smith and Bradford L.Thomas, “Islands Disputes and the Law of the Sea: An Examination of Sovereignty and Delimitation Disputes”, Maritime Briefing, Vol. 2 (4), 1998, p. 26. 49 Manila Standard, 31 July 1998. 50 Smith and Thomas, op. cit., p. 18. 51 Prescott, op. cit., p. 39. The Philippines has planned to build a lighthouse on the reef and it is not clear whether this plan has been put into practice.

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5 Maritime boundary delimitation in the Gulf of Tonkin 1 The Chinese name for the Gulf of Tonkin is simply borrowed from the Vietnamese name. The literal meaning of the word “beibu” or “bac bo” means “northern”. For Vietnam, the Gulf of Tonkin is geographically a northern bay, but for China it is not. 2 See “Beibu Gulf”, in Encyclopaedia Sinica: Geography of China (Beijing: China Encyclopaedia Press, 1993) (in Chinese), p. 23. 3 See Ewan Anderson, An Atlas of World Political Flashpoints: A Sourcebook of Geopolitical Crisis (London: Pinter Reference, 1993), p. 211. 4J.R.V.Prescott, The Maritime Political Boundaries of the World (London: Methuen, 1985), pp. 223–224. 5 See Sun Shangzhi (ed.), Study on the Comprehensive and Co-ordinated Development of China’s Beibu Gulf Rim (Beijing: Meteorological Press, 1997) (in Chinese), p. 10. 6 China Business Information Network, 26 February 1998. 7 See Guo Min (ed.), Forty-Year Evolution of the Sino-Vietnamese Relationship (Nanning: Guangxi People’s Publishing House, 1992) (in Chinese), p. 140. 8 J.R.V.Prescott, Maritime Jurisdiction in Southeast Asia (Honolulu, Hawaii: EastWest Center, 1981), p. 11. 9 See Beijing Review, 29 December 1978, p. 23. 10 Pao-min Chang, The Sino-Vietnamese Territorial Dispute, The Washington Papers/118 (New York: Praeger, 1986), p. 24. 11 Agence France-Presse, 31 March 1998. 12 See Beijing Review, 25 May 1979, pp. 16–17. During the fourth round of the negotiation in 1974, Han Nianlong, Head of the Chinese Delegation stated that the so-called “maritime boundary line” never existed. The Vietnamese side totally misinterpreted the 1887 Sino-French treaty despite the letters of the treaty and the historical facts; as quoted in Yang Wanxiu, “The Sovereignty Dispute on Xisha and Nansha in China—Vietnam Relations”, in Southeast Asian Institute, Zhongshan University (ed.), Prospects for the China—Southeast Asian Relations Around 2000 (Guangzhou: Zhongshan University Press, 1991) (in Chinese), p. 135. 13 Beijing Review, 4 May 1979, p. 17. 14 Chang, op. cit., pp. 13–14. The French version is recorded here: “Au Kouang-Tong, il est entendu que les points contestés qui sont situés à l’est et au nordouest de Monkai, au dela de la frontière telle qu’elle a été fixée par la commission de delimitation, sont attrinués à la Chine. Les îles qui sont à l’est du meridien de Paris 105˚43′, de longitude est, c’est-à-dire de la ligne nordsud passant par la pointe orientale de l’île de Teha-Kou ou Ouan-chan (Tra-co) et formant la frontière sont egalement attribuées à la Chine. Les îles Go Tho et les autres îles qui sont à l’ouest de ce méridien appartiennent à l’Annam.” Reprinted in Recueil des traités de la France, 1886–1887, Vol. 17 (Paris, 1891), p. 387. 15 Article 33 (1) of the Vienna Convention on the Law of Treaties provides that “when

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a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail”. Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331. China acceded to this convention on 9 May 1997. See People’s Daily (in Chinese), 10 May 1997. 16 The whole version in Chinese is reprinted in Wang Tieya (ed.), A Comprehensive Compilation of Old Sino-Foreign Treaties and Agreements (Beijing: San Lien Publishing Co., 1982) (in Chinese), Vol. 1, pp. 512–514. It is interesting to note that the Sino-French treaty regarding the Sino-Vietnamese border concluded on 11 May 1884 provided that the treaty was written both in Chinese and in French and the French version should be authoritative according to the rules of public law. See Wang (ed.), ibid., p. 455. 17 See Articles 31 and 32, Vienna Convention on the Law of Treaties. For reference, see Li Haopei, Introduction to the Law of Treaties (Beijing: Law Press, 1987) (in Chinese), pp. 439–441. 18 As Prescott surveyed, such technique was used by Russia and the United States in 1867; by Britain when it allowed Queensland to annex the Torres Strait Islands in 1879; by Spain and the United States in 1898, when they defined the islands of the Philippines; by Britain and Germany when they divided the Solomon Islands in 1899; and by Britain and the United States when they distinguished their possession in the Sulu Archipelago in 1930. Prescott, op. cit., p. 225. 19 As Johnston and Valencia state, “the text of the 1887 Sino-French convention does use the term ‘frontière’, which at that time usually had a territorial significance, but a close reading suggests that the purpose was functionally restrictive: to divide the islands into administrative zones, not to allocate waters or seabed or their resources”. See Douglas M.Johnston and Mark J. Valencia, Pacific Ocean Boundary Problems: Status and Solutions (Dordrecht: Martinus Nijhoff, 1991), p. 149. 20 See Chen Tiqiang and Zhang Hongzheng, “The Issue of Delimiting the Beibu Gulf Sea Areas”, in Chen Tiqiang, Collected Works of International Law (Beijing: Law Press, 1985) (in Chinese), pp. 186–187. 21 As Kittichaisaree observes, “[i]t seems unlikely that this division was intended to allocate to either China or Vietnam a maritime area of more than 3 nm from the coast, bearing in mind the 3 nm maximum breadth of the territorial sea at that time”. Kriangsak Kittichaisaree, The Law of the Sea and the Maritime Boundary Delimitation in Southeast Asia (Singapore: Oxford University Press, 1987), p. 43. 22 Prescott, op. cit., p. 225. 23 See Prescott, ibid., pp. 225–226. 24 Chen and Zhang, op. cit., p. 194. 25 In a diplomatic note dated 29 September 1932, China argued that the 1887 SinoFrench Convention clearly indicated that the Paracels belonged to China. See Marwyn S.Samuels, Contest for the South China Sea (New York and London: Methuen, 1982), p. 61. Also see Greg Austin, China’s Ocean Frontier: International Law, Military Force and National Development (St Leonards, NSW: Allen and Unwin Australia, 1998), pp. 110–111. 26 See Chen and Zhang, op. cit., pp. 192 and 193. The Sino-Vietnamese Protocol on

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the Comprehensive Marine Investigation in the Beibu Gulf was first signed on 27 June 1959. People’s Daily (in Chinese), 28 June 1959. 27 For details, see Chen and Zhang, ibid., pp. 192–194. 28 For details, see Robert W.Smith, “United States—Russia Maritime Boundary”, in Gerald H.Blake (ed.), Maritime Boundaries (London: Routledge, 1994), pp. 91–102. 29 Leo J.Bouchez, The Regime of Bays in International Law (Leyden: A.W. Sythoff, 1964), p. 281. As Strohl states, “the historic bay contains waters over which the coastal State or States have exercised a regime of internal waters for a period of long standing, with explicit or implicit recognition of such practice by foreign States”. Mitchell P.Strohl, The International Law of Bays (The Hague: Martinus Nijhoff, 1963), p. 252. 30 See “Juridical Regime of Historic Waters, Including Historic Bays”, Yearbook of the International Law Commission, 1962, Vol. 2, p. 6. 31 See Antonio Sanchez de Bustamante, The Territorial Sea (New York: Oxford University Press, 1930), p. 37. 32 In fact, France protested such Vietnamese claim in 1983. See J.Ashley Roach and Robert W.Smith, United States Responses to Excessive Maritime Claims (The Hague: Martinus Nijhoff, 1996), pp. 52–53, n. 33. 33 See DOALOS, The Law of the Sea: Baselines: National Legislation with Illustrative Maps (New York: United Nations, 1989), p. 384. 34 L.F.L.Oppenheim, International Law, 8th Edn (London and New York: Longmans, Green, 1955), Vol. 1, p. 508. 35 Yehuda Blum, Historic Titles in International Law (The Hague: Martinus Nijhoff, 1965), pp. 269–270. 36 See Blum, op. cit., p. 278. However, many scholars are not satisfied with the decision made in the court. Gidel considers this decision as “une anomalie tout à fait notable dans le système logique des baies historiques”. G.Gidel, Le droit international public de la mer (Chateauroux: Mellottée, 1932–34), p. 627. 37 See Land, Island and Maritime Frontier Dispute (El Salvador/Honduras; Nicaragua intervening), ICJ Reports, 1992, p. 351. 38 For reference, see Oscar Chapuis, A History of Vietnam: From Hong Bang to Tu Duc (Westport, Conn.: Greenwood Press, 1995). 39 Declaration of the Government of the People’s Republic of China on China’s Territorial Sea, 4 September 1958, in Office of Laws and Regulations, Department of Ocean Management and Monitoring, State Oceanic Administration, Collection of the Sea Laws and Regulations of the People’s Republic of China (Beijing: Ocean Press, 1991), pp. 3–4. 40 The mouth of Bohai Bay connects Liaodong Peninsula and Shandong Peninsula, a distance of 45 nm. 41 Fu Zhu, On the Question of China’s Territorial Sea (Beijing: World Knowledge Press, 1959), translated in Jerome A.Cohen and Hungdah Chiu, People’s China and International Law (Princeton, New Jersey: Princeton University Press, 1974), pp. 483–484. 42 See People’s Daily, 23 September 1957. The Soviet claim was protested by the United States and other Western countries.

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43 Roach and Smith, op. cit., p. 53. 44 United Nations, The Law of the Sea: Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index (New York: United Nations, 1983), pp. 26 and 29–30. Article 38 of the ICJ Statute provides that “1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognised by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognised by civilised nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.” Reprinted in Hans Kelsen, The Law of the United Nations (New York: Praeger, 1951), p. 874. 45 See Prosper Weil, The Law of Maritime Delimitation (Cambridge: Grotius Publications Ltd, 1989), pp. 159–169; and Surya P.Sharma, Delimitation of Land and Sea Boundaries between Neighbouring Countries (New Delhi: Lancers Books, 1989), pp. 100–122. 46 Article 15 of the LOS Convention. 47 Article 15 of the LOS Convention. 48 Rodman R.Bundy, “State Practice in Maritime Delimitation”, in Gerald H. Blake (ed.), Maritime Boundary (London: Routledge, 1994), p. 24. 49 Johnston and Valencia, op. cit., p. 149. 50 ICJ Reports, 1969, p. 45. The recent use of equidistant line by the ICJ was perceived as “rehabilitation of the equidistant line”. See Jonathan I.Charney, “Progress in International Maritime Boundary Delimitation Law”, AJIL, Vol. 88, 1994, p. 256. 51 According to a confidential source in 1997, Vietnam will settle for a median line provided that its Bach Long Vi Island is given some effect in drawing the line, rather than being ignored in a median line drawn between Hainan Island and Vietnam’s mainland coast. This would also mean that Vietnam had abandoned any reliance on the 1887 line. Austin, op. cit., pp. 218–219. 52 See ICJ Reports, 1993. 53 Charney, op. cit., p. 245. 54 Johnston and Valencia, op. cit., p. 149; see also Choon-hoo Park, East Asia and the Law of the Sea (Seoul: Seoul National University Press, 1983), p. 263. 55 In addition, the recent trend in international practice has indicated that the principle of natural prolongation will play less and less role in the delimitation of the continental shelf. See Stuart B.Kaye, “The Australia–Indonesia Maritime Boundary Treaty: A Review”, Maritime Studies, May–June 1997, p. 28. 56 D.B.Hamman, “The Single Maritime Boundary—A Solution for Maritime Delimitation between Namibia and South Africa?” IJMCL, Vol. 10 (3), 1995, 368– 388. 57 See Mark J.Valencia, China and the South China Sea Disputes, Adelphi Paper 298, International Institute for Strategic Studies (Oxford: Oxford University Press, 1995),

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p. 37. 58 See Jonathan I.Charney and Lewis M.Alexander (eds), International Maritime Boundaries (Dordrecht: Martinus Nijhoff, 1993), pp. 1057–1089. China protested against this arrangement, saying that it encroached on the sovereign rights of China. See People’s Daily (in Chinese), 5 February 1974. 59 Agreement between the Government of Malaysia and the Government of the Kingdom of Thailand on the Constitution and Other Matters Relating to the Establishment of the Malaysia–Thailand Joint Authority, 30 May 1990; in D. Ong, “Thailand/Malaysia: The Joint Development Agreement 1990”, IJMCL, Vol. 6,1990, 64–72. 60 As it stated, “with regard to issues that cannot be solved for the time being, China stands for pigeonholing them for strengthened co-operation and joint development”, White Paper on Marine Development, in China Daily, 29 May 1998, p. 4. It should be noted that China issued for the first time such a white paper on marine affairs. 61 The Vietnam–Malaysia Memorandum of 5 June 1992 on Joint Development Arrangement. See Asian Political News (Kyodo News International), 8 June 1992. 62 See Epsey Cooke Farrell, The Socialist Republic of Vietnam and the Law of the Sea: An Analysis of Vietnamese Behaviour within the Emerging International Oceans Regime (The Hague: Martinus Nijhoff, 1998), p. 251. 63 For details, see Chapter 7. 64 See Huang Shuolin, “Impact of the Entry into Force of the Law of the Sea Convention on the Marine Fishery”, in Centre of Ocean Fishery Development Research, Bureau of Fishery, Ministry of Agriculture (ed.), Proceedings of the Conference on International Fishery Laws and Regulations (in Chinese), Beijing, October 1995, p. 68. 65 See UN, The Law of the Sea: Maritime Boundary Agreements (1985–1991) (New York: United Nations, 1992), p. 30. 66 See UN, ibid., p. 32. 67 See UN, The Law of the Sea: Maritime Boundary Agreements (1970–1984) (New York: United Nations, 1987), p. 225. 68 Declaration of the Government of the People’s Republic of China on the Baseline of the Territorial Sea of the People’s Republic of China, 15 May 1996, in People’s Daily (in Chinese), 16 May 1996. 69 UN Doc. A/51/645, 15 October 1996, p. 12. 70 See Chen and Zhang, op. cit., p. 193. 71 According to statistics, there were 267 Hainan inhabitants in this island in 1957 before the handover. 72 See Ai Hongren, Perspective of the Chinese Navy (Hong Kong: Wide Angle Press, 1988) (in Chinese), p. 40. The handover is explained by the Vietnamese side as that the island was under the Chinese trusteeship for a time and recovered by Vietnam in 1957. See Vietnamese Foreign Ministry, “Hoang Sa and Truong Sa and International Law”, April 1988, translated in Chinese Society of International Law (ed.), International Law Materials (Beijing: Law Press, 1990) (in Chinese), p. 161. 73 Robert W.Smith and Bradford L.Thomas, “Island Dispute and the Law of the Sea: An Examination of Sovereignty and Delimitation Disputes”, IBRU Maritime

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Briefing, Vol. 2 (4), 1998, p. 23. 74 See Charney and Alexander (eds), op. cit., pp. 1649–1162, 1735–1754, and 1611– 1626. 75 See Derek Bowett, “Islands, Rocks, Reefs, and Low-Tide Elevations in the Maritime Boundary Delimitations”, in Charney and Alexander, op. cit., p. 141. 76 Full text in Charney and Alexander, op. cit., pp. 1966–1969. 77 Full text in Charney and Alexander, ibid., pp. 1939–1941. 78 Full text in Charney and Alexander, ibid., pp. 532–535. 79 See Bowett, op. cit., p. 143. Full text in Charney and Alexander, op. cit., pp. 1547– 1548. 80 Bowett, ibid., p. 143. Full text in Charney and Alexander, ibid., pp. 1634–1637. 81 D.P.O’Connell, The International Law of the Sea (Oxford: Clarendon Press, 1984), Vol. II, p. 716. 82 ICJ Reports, 1985, p. 48. 83 Joseph R.Morgan and Mark J.Valencia, Atlas for Marine Policy in Southeast Asian Seas (Berkeley: University of California Press, 1983), p. 50. 84 Eugene K.Lawson, The Sini-Vietnamese Conflict (New York: Praeger, 1984), p. 19. For details, see Douglas Pike, Vietnam and China (Institute of East Asian Studies, University of California, Berkeley, 1989), pp. 95–97. 85 See Luo Yuru and Zeng Chengkui (eds), Marine Affairs of Contemporary China (Beijing: China Social Science Publishing House, 1985) (in Chinese), p. 416. 86 See “Chinese rig clearly violates Vietnam’s sovereign rights, says lawyer”, Vietnam Law and Legal Forum, Vol. 3 (31), March 1997, p. 9. 87 Agence France-Presse, 31 March 1998. 88 See “Joint Statement of Summit Meeting between China and ASEAN”, Kuala Lumpur, 16 December 1997, Xinhua Monthly (in Chinese), 1998, No. 1, p. 113. 89 See Nguyen Hong Thao, “The First Agreement on Maritime Delimitation for Vietnam”, Vietnam Law and Legal Forum, Vol. 4, No. 42, February 1998, 16–19. 90 See Agence France Presse, 11 August 1997. 91 See Nguyen Hong Thao, “The Settlement of Disputes in Bac Bo (Tonkin) Gulf”, Vietnam Law and Legal Forum, Vol. 7, No. 77, January 2001, 17.

6 Sino-Japanese joint fishery management in the East China Sea 1 Text is reprinted in 21 ILM (1982) 1261. During the debate on the issue of enclosed and semi-enclosed seas at the second session of the Third United Nations Conference on the Law of the Sea in 1974, the East China Sea was referred to within the general classification of enclosed and semi-enclosed seas. See Michael W.Lodge, “The Fisheries Regimes of Enclosed and Semienclosed Seas and High Seas Enclaves”, in Ellen Hey (ed.), Developments in International Fisheries Law (The Hague: Kluwer Law International, 1999), p. 197.

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2”East China Sea”, in The New Encyclopaedia Britannica, 15th Edn, Vol. 3 (Encyclopaedia Britannica, Inc., 1984), p. 756. 3 See Zou Keyuan, “Towards Sustainable Management of China’s Marine Fishery Resources: Law and Enforcement”, Asia Pacific Journal of Environmental Law, Vol. 2 (3–4), 1997, 295–296. 4 See Committee of Editors of the China Natural Resources Series, China Natural Resources Series: Ocean (Beijing: China Environmental Science Press, 1995) (in Chinese), p. 346. 5 It is the figure of the year 2000; see China Statistics Yearbook—2001 (in Chinese), p. 362. 6 See State Oceanic Administration, China Ocean Agenda 21 (Beijing: Ocean Press, 1996), pp. 39–40. 7 Choon-ho Park, “Fisheries Issues in the Yellow Sea and the East China Sea”, Occasional Paper#18, September 1973, Law of the Sea Institute, University of Rhode Island, p. 4. 8 See Ministry of Agriculture, Forestry and Fisheries, “Gross Fisheries Output, 2000” and “Production of Fisheries and Aquaculture, 2000”, available in http://www.maff.go.jp/esokuhou/index.html (accessed 19 July 2002). 9 For details, see Song Yook Hong, “The Sino-Japanese Fisheries Agreements of 1975: A Comparison with Other North-Pacific Fisheries Agreements”, Occasional Papers/Reprints Series in Contemporary Asian Studies (School of Law, University of Maryland), No. 6, 1977, 8–10. 10 See “Instruction on Fishery Production by the Ministry of Agriculture”, 13 April 1951, in Legal System Committee, People’s Central Government (ed.), Collections of Laws and Regulations of the People’s Central Government (Beijing: Law Press, 1982) (in Chinese), p. 452. 11 Japanese fishing boats operated up to 3 nm from the Chinese coast, and some even entered into China’s internal waters. 12 Japan still maintained its diplomatic ties with the Republic of China on Taiwan at that time. 13 See Zengo Ohira and Terumichi Kuwahara, “Fishery Problems between Japan and the People’s Republic of China”, JAIL, Vol. 3, 1959, 109 and 111. 14 Text is in http://www.china-fishery.online.sh.cn/09-sjzl/02-FL/FALV068.html (accessed 29 July 2002). 15 The Japanese side proposed that the commission conduct a joint scientific survey, but China refused this on the ground of its three principles, i.e. self-reliance, independence, and achievement of a planned economy. See Shoichi Tanaka, “Japanese Fisheries and Fishery Resources in the Northwest Pacific”, ODIL, Vol. 6, 1979, p. 184. 16 Tanaka, ibid., p. 184. 17 Article IX of the 1955 Agreement provides that “The PRC-Japanese Fishery Council of Japan and the Fishery Association of the PRC shall endeavour to urge their respective governments to open negotiations promptly to solve the fishery problems pending between Japan and the PRC and conclude a fishery agreement on governmental level”; cited in Ohira and Kuwahara, op. cit., p. 115.

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18 Text in Fishery Administrative Bureau, Ministry of Agriculture, PRC (ed.), SinoJapanese Governmental Fishery Agreements and Non-Governmental Protocols on the Safety of Fishing Operations (in Chinese), April 1993, 1–19. 19 They are concerned with the establishment of a horsepower restriction line inside which trawlers and purse seiners of 600 hp or more are prohibited to enter; closed areas or suspension areas which are completely closed during designated periods; and fishing restrictions concerning minimum body length, minimum mesh size, light intensity fish-attracting devices, incidental catch limit. See Mark J.Valencia, A Maritime Regime for Northeast Asia (Hong Kong: Oxford University Press, 1996), p. 258. 20 It allows that in the open seasons of these protection zones, fishermen from both countries are allowed to enter those zones according to different limitation of number and horsepower of vessels. 21 J.R.V.Prescott, “Maritime Jurisdiction in East Asian Seas”, East-West Environment and Policy Institute Occasional Paper No. 4, 1987, p. 43. 22 See Articles 61–68 of the LOS Convention. 23 See Moritaka Hayashi, “The Management of Transboundary Fish Stocks under the LOS Convention”, IJMCL, Vol. 8 (2), 1993, p. 251. 24 See Valencia, op. cit., p. 250. 25 See David Freestone, “The Precautionary Principle”, in Robin Churchill and David Freestone (eds), International Law and Global Climate Change (London: Graham and Trotman, 1991), p. 21; and Lothar Gündling, “The Status in International Law of the Principle of Precautionary Action”, in David Freestone and Ton Ijlstra (eds), The North Sea: Perspectives on Regional Environmental Cooperation (London: Graham and Trotman, 1990), p. 26. 26 34 ILM (1995) 1551. For relevant assessment of the precautionary approach in the 1995 Agreement, see David Freestone, “International Fisheries Law since Rio: The Continuing Rise of the Precautionary Principle”, in Alan Boyle and David Freestone (eds), International Law and Sustainable Development: Past Achievements and Future Challenges (Oxford: Oxford University Press, 1999), pp. 135–164. 27 China regarded the adoption of the 1995 Agreement as an important development of the LOS Convention, and a legal document which would have a significant impact on the conservation and management of marine living resources, especially fish resources in the high seas as well as on the international cooperation in fishery. See “Statement of the Government of the People’s Republic of China on relevant provisions of the Agreement”, Law of the Sea Bulletin, No. 33, 1997, p. 30. 28 Text is reprinted in the Report of the United Nations Conference on Environment and Development, UN Doc. A/CONF.151/26 (Vol. I), 12 August 1992. 29 Text is reprinted in the Report of the United Nations Conference on Environment and Development, UN Doc. A/CONF.151/26 (Vol. II), 13 August 1992. 30 There is one section in Chapter 14 (protection and sustainable use of natural resources) of China Agenda 21 and a whole chapter (Chapter 5) of China Ocean Agenda 21 in dealing with the sustainable development and protection of marine resources. See China Agenda 21 (Beijing: China Environmental Science Press, 1994) (in Chinese), pp. 125–130; and China Ocean Agenda 21, op. cit., pp. 39–52.

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31 Text is available in http://www.fao.org/fi/agreem/codecond/ficonde.asp (accessed 23 July 2002). 32“What is the Code of Conduct for Responsible Fisheries?” in http://www.fao.org/docrep/003/x9066e/x9066e01.htm#a (accessed 23 July 2002). 33 It is the Ministerial Meeting on the Implementation of the Code of Conduct for Responsible Fisheries, convened in Rome on 10 and 11 March 1999. The text of the Declaration is available in http://www.fao.org/fi/agreem/declar/dece.asp (accessed 23 July 2002). 34 Text is reprinted in ICMCL, Vol. 17 (1), 2002, pp. 123–126. However, Japan expressed disappointment that the Declaration had in its view failed to address a number of major issues that were the theme of the conference. Describing it as a “regressive step and missed opportunity” to move toward the inclusion of ecosystem considerations in fisheries management, he explained that one source of disagreement in the drafting committee had been the use of the term “living marine resources”, which he had deemed appropriate, as it had been used in UNCLOS and other UN and FAO agreements and documents. He said Australia, the US, and New Zealand had refused to accept this term in the Declaration, and argued that this “puts us back 20 years” and contradicts the aims of ecosystem management. He said discussions during the Scientific Symposium on the role of marine mammals and consumption of fish by marine mammals should have been reflected in the Declaration, and said some countries’ refusal to include it had turned this into a political meeting along the lines of the International Whaling Commission (IWC). He also expressed disappointment that the Declaration had not included a proposed paragraph on market access and illegal, unreported, and unregulated fishing, which he believed was a key issue at this conference. He affirmed Japan’s commitment to responsible fisheries and including ecosystem considerations. “Summary of the Reykjavik Conference on Responsible Fisheries in the Marine Ecosystem”, in http://www.refisheries2001.org/index.htm (accessed 23 July 2002). 35 “Report on the work of the UN Open-ended Informal Consultative Process established by the General Assembly in its resolution 54/33 in order to facilitate the annual review by the Assembly of developments in ocean affairs at its third meeting, held at UN Headquarters from 8 to 15 April 2002”, p. 22. 36 See Committee of Editors of the China Natural Resources Series, op. cit., p. 349. 37 “Publication of the Bulletin of China’s Fishery Ecological Environment in 2001”, People’s Daily (in Chinese), 11 June 2002. 38 See China’s Declaration on Territorial Sea, 4 September 1958, in Office of Policy, Law and Regulation, State Oceanic Administration (ed.), Collection of the Sea Laws and Regulations of the People’s Republic of China, revised edition (Beijing: Ocean Press, 1998), pp. 182–183. 39 This Law was promulgated on 25 February 1992. Text in Chinese and English is reprinted in Office of Policy, Law and Regulation, ibid., pp. 4–7 and 186–190. 40 This Law was adopted on 26 June 1998. The unofficial English version translated by this author is available in MIMA Bulletin, Vol. 7, 1999, 27–29. 41 The baselines for the mainland are from Shandong Peninsular to Hainan Island, and baselines are decided for the Xisha Islands (Paracel Islands). See Declaration of the

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Government of the People’s Republic of China on the Baselines of the Territorial Sea of the People’s Republic of China, 15 May 1996, in Office of Policy, Law and Regulation, State Oceanic Administration, op. cit., pp. 191–194. 42 Article 5 of the EEZ Law of the PRC provides that “Any international organization, foreign organization or individual should obtain approval from China’s competent authority for carrying out fishing operations in its EEZ, and must comply with China’s laws and regulations and with the treaties and agreements concluded between China and the countries concerned.” 43 Article 62 of the LOS Convention. 44 Fishery agreements of a multilateral nature or of a bilateral nature but only allowing Chinese vessels to fish in water areas of other countries are not included. 45 The Fishery Law was first adopted on 20 January 1986 and amended on 31 October 2000. The English text of the 1986 Law is available in Office of Policy, Law and Regulation, op. cit., pp. 222–232. 46 Article 46 provides that “foreigners or foreign fishing vessels which have violated the provisions of this Law, entering the jurisdictional waters of the People’s Republic of China to conduct fishing operations or investigations of fishery resources shall be ordered to leave or be expelled; their fishing gears and fish products shall be confiscated, and imposed a fine up to 50,000 RMB; in some serious cases, fishing vessels may be confiscated, and those who have committed crimes are subject to criminal liability under the law”. 47 See Masahiro Miyoshi, “New Japan-China Fisheries Agreement-An Evaluation from the Point of View of Dispute Settlement”, JAIL, Vol. 41, 1998, p. 34. 48 “Law on the Territorial Sea and the Contiguous Zone (Law No. 30 of 1977, as amended by Law No. 73 of 1996)”, Law of the Sea Bulletin, No. 35, 1997, 76–77. 49 “Law on the Exclusive Economic Zone and the Continental Shelf (Law No. 74 of 1996)”, Law of the Sea Bulletin, ibid., dxuserdxuser 94–96. 50 See “Enforcement Order of the Law on the Territorial Sea and the Contiguous Zone (Cabinet Order No. 210 of 1977, as amended by Cabinet Order No. 383 of 1993 and Cabinet Order No. 206 of 1996)”, Law of the Sea Bulletin, ibid., 78–94. Korea objected to Japan’s such claim. See Park Hee Kwon, The Law of the Sea and Northeast Asia: A Challenge for Cooperation (The Hague: Kluwer Law International, 2000), 27–30. 51 See Huang Shuolin, The Law of the Sea and Fishery Regulations (Beijing: China Agricultural Press, 1995) (in Chinese), pp. 138–140. 52 “Japan will formulate a basic law on fisheries”, in http://www.ifishery.com.cn/rules/wgfg/rbjzdjbf.htm (accessed 3 July 2002). 53 Japanese Ministry of Foreign Affairs, “Japan and the UN Convention on the Law of the Sea”, available in http://www.mofa.go.jp/policy/economy/sea/convention.html (accessed 4 July 2002). 54 “Understanding by the Cabinet on the Conclusion of the United Nations Convention on the Law of the Sea and the Adjustment of Japan’s Maritime Legal Regime”, 20 February 1996, available in http://www.mofa.go.jp/policy/economy/sea/maritime.html (accessed 4 July 2002). 55 In the late 1980s, there were 1.25 million fishermen in China. See Stanley D.H.

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Wang and Bing-yi Zhan, “Marine Fishery Resource Management in PR China”, Marine Policy, Vol. 16, 1992, p. 199. 56 Fishery Agreement between the People’s Republic of China and Japan, 11 November 1997 (in Chinese) (on file with the author). 57 This is in conformity with Article 292 of the LOS Convention which provides that “where the authorities of a State Party have detained a vessel flying the flag of another State Party and it is alleged that the detaining State has not complied with the provisions of this Convention for the prompt release of the vessel or its crew upon the posting of a reasonable bond or other financial security, the question of release from detention may be submitted to any court or tribunal agreed upon by the parties or, failing such agreement within 10 days from the time of detention, to a court or tribunal accepted by the detaining State under Article 287 or to the International Tribunal for the Law of the Sea, unless the parties otherwise agree”. 58 The competent authorities of one Party, upon receipt of the written notification of the decision from the competent authorities of the other Party on the provisions of Article 3 of this Agreement, shall apply from the competent authorities of the other Party for permits for its nationals and fishing boats engaged in fishery operations of the exclusive economic zone of the other Party. The competent authorities of the other Party shall issue the permits in pursuance to this Agreement and relevant laws and regulations. The competent authorities of either Party shall inform in writting the competent authorities of the other Party of the procedural measures for the entry of fishing (including the procedural measures concerning the application and issuance of permits, provision of fishing data, marking of fishing boats and fishing log). Annex 1 to the Sino-Japanese Fishery Agreement. 59 See “China and Japan reached agreement on the implementation of the new fishery agreement”, in http://www.ifishery.com.en/rules/zxzcfg/4.htm (accessed 5 July 2002). 60 See “Operation Conditions for Japanese Fishing Boats in China’s Jurisdictional Waters”, China Ocean News (in Chinese), 4 August 2000. 61 See “Operation Conditions for China’s Fishing Vessels in the Japanese Waters”, China Ocean News (in Chinese), 21 July 2000. 62 “Japan, China agree on each other’s fishing quotas for 2002”, Kyodo News, 18 December 2001. 63 Miyoshi, op. cit., p. 30. 64 See “China and Japan reach the agreement on this year’s fishing quota and operation conditions”, China Ocean News (in Chinese), 21 July 2000. 65 For details, see Chapter 7. 66 “Japan and China agreed to establish the provisional measures zone in which provisional measures would be applied in areas where it is difficult to agree on a delimitation line. The Chinese side wanted to enlarge the provisional measures zone as much as possible, and as close to the Japanese coast as possible. On the other hand, Japan wanted to enlarge the EEZ of the two countries as much as possible and thus reduce the provisional measures zone as much as possible.” House of Councillors, 142nd Session of the Diet, Minutes of the Standing Committee for Foreign Affairs and Defence, 12th Meeting (28 April 1998), p. 1; cited in Nobukatsu

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Kanehara and Yutaka Arima, “New Fishing Order—Japan’s New Agreements on Fisheries with the Republic of Korea and with the People’s Republic of China”, JAIL, Vol. 42, 1999, 20–21. 67 China’s position is that delimitation should be based on the equitable principle, while Japan’s position is that in cases where the claims of the EEZs overlap between opposite coasts, delimitation should be based on the median line. House of Councillors, 142nd Session of the Diet, Minutes of the Standing Committee for Foreign Affairs and Defence, 12th Meeting (28 April 1998), p. 1; cited in Kanehara and Arima, op. cit., p. 20. China’s position can be further seen in its Decision on Ratification of the LOS Convention and the Law on the EEZ and Continental shelf (Art. 2). According to the Decision, China will effect, through consultation, the delimitation of boundary of the maritime jurisdiction with the states whose coasts opposite or adjacent to China respectively on the basis of international law and in accordance with the equitable principle. See Office of Policy, Law and Regulation, op. cit., p. 184. 68 Agreed Minutes between the Government of the People’s Republic of China and the Government of Japan, 11 September 1997. 69 See Kanehara and Arima, op. cit., pp. 27–28. 70 For the official positions of both governments, see “The Basic View on the Sovereignty over the Senkaku Islands”, in http://www.mofa.go.jp/region/asiapaci/senkaku/senkaku.html (accessed 4 July 2002); and “The Issue of Diaoyu Islands”, in http://www.fmprc.gov.cn/eng/3790.html (accessed 26 July 2002). 71 Chinese Ministry of Agriculture, “Notice on Clean-up and Ratification of Marine Fishing Boats without Complete Certificates”, 21 January 2001, in http://www.ifishery.eom/content0103/zlzs/8.htm (accessed 8 June 2001). 72 “Fishing wantonly after the closed season”, Ming Pao (Hong Kong), 19 August 2000. 73 “MF Spokesman expresses that the Japan–Korea Fishery Agreement encroaches on China’s sovereign rights over its EEZ”, People’s Daily (in Chinese), 23 January 1999. For further reference, see Fan Xiaoli, “Comments on the New Japan–Korea Fishery Agreement”, Ocean Development and Management (in Chinese), Vol. 17 (1), 2000, 68–70. 74 See Chi Young Pak, “Resettlement of the Fisheries Order in Northeast Asia resulting from the New Fisheries Agreements among Korea, Japan and China”, Korea Observer, Vol. 30 (4), 1999, 614–615. For other related reference, see Mark J.Valencia and Yong Hee Lee, “The South Korea–Russia–Japan Fisheries Imbroglio”, Marine Policy, Vol. 26, 2002, 337–343. 75 Tanaka,op. cit., p. 185. 76 “Nation to cut fishing force”, China Daily, 19 January 2002. 77 “Chinese fishermen are troubled by Sino-foreign fishery agreements”, China Ocean News (in Chinese), 12 March 2002. See also Yu Xitang and Chao Menggai, “Size up the Situation and Adjust the Strategy of the Fishery Development: A Study on Countermeasures for Implementing 200 nm EEZ in Zhoushan”, Ocean Development and Management (in Chinese), Vol. 15 (4), 1998, 47–52. After the implementation

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of the Sino-Japanese and Sino-Korean fishery agreements, Shandong Province has lost more than 40 percent of its traditional “golden” fishing grounds. See Guo Wenlu et al., “Development of International Fishery Law and Its Impact on the World Marine Fishery”, Ocean Development and Management (in Chinese), Vol. 19 (2), 2002, 53. 78 As reported, the ratio for the fishing entry in each other’s EEZs between South Korea and Japan was 3:2 in 1999, then the difference was reduced year by year, and in 2002, the quota was equivalent as agreed. See Piao Ying’ai, “New Fishery Cooperative System in the Northeast Asian Region”, Northeast Asia Forum (in Chinese), No. 3, 2001, 47. 79 “China becomes the largest provider of aquatic products for Japan”, available in http://www.cfm.com.cn/20010923/ca8844.htm (accessed 3 July 2002). 80 “Jointly conserve marine fishery resources”, in http://www.ifishery.com/content0007/zlyzs/10.htm (accessed 8 June 2001). 81 See Mark J.Valencia, “Regional Maritime Regime Building: Prospects in Northeast and Southeast Asia”, ODIL, Vol. 31, 2000, 241.

7 Sino-Vietnamese Fishery Agreement in the Gulf of Tonkin 1 This agreement is not available at the time of writing. For delimitation issues before this agreement, see Chapter 5. 2 China recently signed fishery agreements with Japan in November 1997 and with South Korea in August 2000. Japan and South Korea signed their new fishery agreement in November 1998. 3 See Wu Shicun, “Sustainable Exploitation of the Fishery Resources of the Beibu Bay (the Gulf of Tonkin)”, paper presented to the Conference “Human and Regional Security around the South China Sea” organized by the Center for Development and the Environment of the University of Oslo, 2–4 June 2000, Oslo, Norway, p. 2. 4 See Committee of Editors of the China Natural Resources Series, China Natural Resources Series: Ocean (Beijing: China Environmental Science Press, 1995)(in Chinese), pp. 351–352. 5 There is abundant literature on fishery resources in the Gulf of Tonkin. However, most of them are not written in English. For relevant information in English, see J.R.Morgen and M.J.Valencia (eds), Atlas for Marine Policy in Southeast Asian Seas (Berkeley: University of California Press, 1983), pp. 56–57. 6 See Zou Keyuan, “Towards Sustainable Management of China’s Marine Fishery Resources: Law and Enforcement”, Asia Pacific Journal of Environmental Law, Vol. 2, 1997, 296. 7 Wu explained this by four indicators: (a) the yield exceeds the maximum permitted catch; (b) density of resources has decreased and there has been exhaustion of some kinds of fishery resources; (c) the proportion of commercial fish has notably declined; and (d) the fish habitat environment has worsened. See Wu, op. cit., pp. 6–

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9. 8 See Huang Shuolin, The Law of the Sea and Fishery Regulations (Beijing: China Agricultural Press, 1995) (in Chinese), pp. 124–125. 9 China and Vietnam ratified the LOS Convention on 7 June 1996 and 25 July 1994, respectively. 10 Text is reprinted in Epsey Cooke Farrell, The Socialist Republic of Vietnam and the Law of the Sea: An Analysis of Vietnamese Behavior within the Emerging International Oceans Regime (The Hague: Martinus Nijhoff, 1998), pp. 292–294. 11 Text is reprinted in Wu Shicun (ed.), Collected Documents on South China Sea Issue (Haikou: Hainan Publishing House, 2001) (in Chinese with some documents in English and French), pp. 213–223 12 Farrell, op. cit., p. 161. 13 Text in Vietnam Law and Legal Forum, Vol. 5 (58), New Legislation, June 1999, 1–8. 14 See Wu, op. cit., p. 14. 15 The competent authority in China is the Fishery Management Bureau under the Ministry of Agriculture, and in Vietnam the Bureau of Aquatic Resources Protection under the Ministry of Aquatic Production. 16 For example, the 1973 Agreement between Argentina and Uruguay on the La Prata River and the 1978 Agreement between Columbia and Dominica on Maritime Delimitation and Maritime Cooperation. 17 See Chapter 6. 18 For the LOS Convention requirements, see Chapter 6. 19 For example, the 1986 France-Italy Agreement on the Delimitation of the Maritime Boundaries in the Area of the Strait of Bonifacio, the 1984 France-Monaco Maritime Delimitation Agreement, and the 1974 India-Sri Lanka Agreement on the Boundary in Historic Waters between the Two Countries. See DOALOS, The Law of the Sea: Maritime Boundary Agreements (1985–1991) (New York: United Nations, 1992), pp. 30–32; and The Law of the Sea: Maritime Boundary Agreements (1970–1984) (New York: United Nations, 1987), p. 225. 20 See United Nations Document, A/56/58, 9 March 2001, p. 46. 21 See ibid., pp. 51–52. 22 See “China and Vietnam Initial Agreements on Delimitation of Beibu Bay/Fishery Cooperation (25/25/2000)”, in http://www.fmprc.gov.cn/eng/6939.html (accessed 25 April 2001). 23 “China and Vietnam sign the Supplementary Protocol to the Fishery Agreement for the Gulf of Tonkin”, in http://www.hsm.com.cn (accessed 30 April 2004). 24 See the Straits Times, 23 April 2001, A8. 25 See “Joint Statement on All-round Cooperation in the New Century between the People’s Republic of China and the Socialist Republic of Viet Nam”, in http://www.fmprc.gov.cn/eng/6948.html (accessed 25 April 2001). 26 Ibid. 27 China and Vietnam signed the Treaty on Land Boundary on 30 December 1999. China ratified this Treaty on 29 April 2000. The Chinese text of this Treaty is available in Gazette of the Standing Committee of the National People’s Congress of

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the People’s Republic of China (in Chinese), No. 3, 2000, 227–243.

8 Redefining the legal status of the Taiwan Strait 1 Zhao Zhaobing, “Taiwan Strait”, Encyclopedia of China: Chinese Geography (Beijing: Encyclopedia of China Press, 1993) (in Chinese), p. 469. It is noted that “the most important strait” in the East China Sea is “the Formosa Strait”, see Rhodes W.Fairbridge, “East China Sea”, in Rhodes W.Fairbridge (ed.), The Encyclopedia of Oceanography (New York: Van Nostrand Reinhold Company, 1966), p. 239. 2 Committee of the China Natural Resources Series, China Natural Resources Series: Ocean (Beijing: China Environmental Science Press, 1995) (in Chinese), p. 45. 3 Zhao, op. cit., p. 469. 4 Zhao, ibid. 5 The Republic of China Yearbook 1997 (Taipei: Government Information Office, 1997), p. 9. 6 Ibid., p. 10. 7 ROC Yearbook, op. cit., p. 9. 8 See People’s Daily (in Chinese), 16 May 1996. 9 See Ting-yee Kuo, “History of Taiwan”, in Hungdah Chiu (ed.), China and the Question of Taiwan: Documents and Analysis (New York: Praeger, 1973), p. 10. 10 ROC formally established in 1912 in Chinese history. 11 ROC Yearbook, op. cit., p. 90. 12 See Jon W.Huebner, “The Americanization of the Taiwan Straits”, Vol. 13 (3), Asian Profile, June 1995, 187–199. 13 For details, see Su-ya Chang, “Reluctant Alliance: John Foster Dulles and the Making of the United States–Republic of China Mutual Defense Treaty of 1954”, Chinese Yearbook of International Law and Affairs, Vol. 12, 1992–1994, 126–171. 14 See James Ling-yang Chen, Crossing the Taiwan Strait: The Danger and the Opportunity (Taipei: Cross-Strait Interflow Prospect Foundation, 1998), p. 8. 15 See People’s Daily (Beijing) (in Chinese), 28 July 1998. 16 Erik Bruel, International Straits: A Treatise on International Law (Copenhagen: NYT Nordisk Forlag, 1947), Vol. 1, p. 19. 17 See Satya N.Nandan and Shabtai Rosenne (eds), United Nations Convention on the Law of the Sea 1982: A Commentary, Vol. II (Dordrecht: Martinus Nijhoff, 1993), p. 317. 18 Yaacov Y.I.Vertzberger, Coastal States, Regional Powers, Superpowers and the Malacca–Singapore Straits (Institute of East Asian Studies, University of California, Berkeley, 1984), p. 4. See also Hamzah Ahmad (ed.), The Straits of Malacca: International Co-operation in Trade, Funding and Navigational Safety (Selangor Darul Ehsan, Malaysia: Pelanduk Publications, 1997), pp. 3–14. 19 See K.L.Koh, Straits in International Navigation: Contemporary Issue (New York:

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Oceana Publications, 1982), p. 59. 20 See BOIESA, Limits in the Seas: Straight Baseline Claim: China, No. 117, 9 July 1996, the attached map. 21 See United Daily News (Taipei) (in Chinese), 1 January 1999. 22 See Article 36 of the LOS Convention. 23 See UN Doc. A/Ac 138/SC II/L 34, reprinted in Jeanette Greenfield, China’s Practice in the Law of the Sea (Oxford: Clarendon Press, 1992), p. 230. 24 Shen Weiliang, A/AC 138/SC/SR 36, 1972, 23. 25 See José A. de Yturriaga, Straits Used for International Navigation: A Spanish Perspective (Dordrecht: Martinus Nijhoff, 1991), pp. 122–123. See also Koh, op. cit., pp. 141–143. 26 Cheng Tao, “Communist China and the Law of the Sea”, AJIL, Vol. 63, 1969, 61. 27 See the Declaration of the Government of the People’s Republic of China on China’s Territorial Sea, in Office of Laws and Regulations, Department of Ocean Management and Monitoring, State Oceanic Administration (ed.), Collection of the Sea Laws and Regulations of the People’s Republic of China (Beijing: Ocean Press, 1991), p. 3. 28 Fu Zhu, Concerning of Our Country’s Territorial Sea, Beijing, 1959, reprinted in Jerome A.Cohen and Hungdah Chiu, People’s China and International Law (Princeton, New Jersey: Princeton University Press, 1974), Vol. 1, p. 486. 29 Article 6 of the Regulations. The first version of this article is much stricter: the passage of the Strait must be made in the daytime. The Qiongzhou Authority shall decide the specific hours of entrance and exit for non-military foreign vessels that apply for passage, based upon the speed of the vessel. 30 Even very recently, the United States continued to regard the Qiongzhou Strait as “an international strait”, see BOIESA, op. cit., p. 8. 31 Greenfield, op. cit., p. 48. 32 Fu Zhu, in Cohen and Chiu, op. cit., p. 486. 33 Article 3 of the PRC Territorial Sea Law, in BOIESA, op. cit., p. 11. 34 See United News Daily (in Chinese), 1 January 1999. 35 See China Times (in Chinese), 1 January 1999. It is interesting to note that the Lienchiang County in Matsu lodged a protest to the Taiwan government that the Kinmen–Matsu area was not included in the publicized baselines. They were afraid of being abandoned when Taiwan would seek independence. See United News Daily (in Chinese), 18 January 1999, p. 4. 36 See Greenfield, op. cit., p. 97. 37 See Song Yook Hong, “The Sino-Japanese Fisheries Agreement of 1975: A Comparison with Other North Pacific Fisheries Agreements”, Occasional Papers/Reprints Series in Contemporary Asian Studies (School of Law, University of Maryland), No. 6, 1977, p. 24. 38 See Bureau of Fishery Management, Ministry of Agriculture of the People’s Republic of China (ed.), The Sino-Japanese Governmental Fishery Agreements and Non-Governmental Protocols on Safety of Fishing Operations (in Chinese), April 1993, the third attached map. It is interesting to note that in the latest such Agreement concluded in November 1997, there was no such indication of the

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military zones. See the Sino-Japanese Fishery Agreement (in Chinese), 11 November 1997, the attached map (on file with the author). However, we do not know whether such zones have been cancelled. 39 The detailed maps showing these restricted and prohibited areas are available in http://www.mac.gov.tw/mlpolicy/lea_8703.htm (accessed 14 October 1998). 40 See China Times (in Chinese), 20 March 1999. 41 For details, see Zou Keyuan, “Innocent Passage for Warships: The Chinese Doctrine and Practice”, ODIL, Vol. 29, 1998, 195–223. 42 Articles 3–4 of the PRC Law and Article 5 of the ROC Law. 43 Article 9 of the PRC Law and Article 9 of the ROC Law. 44 See Reuters, 8 November 1992; and Agence France Presse, 10 November 1992. 45 Choon-ho Park, “The Korea Strait”, in Jon M.van Dyke, Lewis M.Alexander and Joseph R.Morgan (eds), International Navigation: Rocks and Shoals Ahead? (Honolulu: The Law of the Sea Institute, University of Hawaii, 1988), p. 173. For geographical details, see Chi Young Pak, The Korean Straits (Dordrecht: Martinus Nijhoff, 1988), pp. 1–14. 46 Japan and South Korea ratified the LOS Convention on 20 June 1996 and 29 January 1996 respectively. For the texts of their recent amended territorial sea laws, see Law of the Sea Bulletin, No. 33, 1997, 45–48 and No. 35, 1997, 76–94. 47 “Mainland fishermen detained for dynamite fishing around Mazu”, Mingpao (Hong Kong) (in Chinese), 1 December 1998. 48 See “Explanation by the Committee of Mainland Affairs on Invasion of the Mainland Fishing Vessels into Our Waters”, in http://www.mac.gov.tw/mlpolicy/lea_8703/lea_8703.htm (accessed 13 October 1998). 49 See Article 32 of the Statute, in the Mainland Affairs Council, Executive Yuan (ed.), Statute Governing the Relations between the People of the Taiwan Area and the Mainland Area and Relevant Implementing Measures (in Chinese), 5th edn, November 1998, p. 35. 50 According to the Fisheries Law of the mainland, fishing is subject to fishing licenses issued by the Bureau of Fishery Management. It seems to this author that such regulations are only applied to the mainland fishermen. The full text of the Fisheries Law is reprinted in Office of Law and Regulations, op. cit., pp. 290–302. 51 See Hungdah Chiu, “The Koo-Wang Talks and the Prospect of Building Constructive and Stable Relations Across the Taiwan Straits”, Occasional Papers/Reprints Series in Contemporary Asian Studies, No. 6, 1993, p. 24. 52 Kung Chun-sheng, “Taiwan’s Offshore Shipping Center and Cross-Strait Commercial Opportunities”, Issues and Studies, Vol. 33 (12), 1997, p. 51. Hong Kong is currently the major transshipment port for cargoes between Taiwan and the mainland. 53 Kung, ibid., p. 59. For example, for the shipment between Kaohsiung and Xiamen, if cargo must pass through Hong Kong, the length of voyage will increase from 170 to 632 nm, and the time consumed from one day to three or four days with wankao transit, and seven to ten days with zhongzhuan transshipment. Kung, ibid., p. 57. 54 Cabotage means the transport of goods or passengers from one port or place in a

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state to another in the same state. Robert C.Lane, “Cabotage”, in R.Bern-hardt (ed.), Encyclopedia of Public International Law (Amsterdam: North-Holland, 1992), Vol. 1, p. 519. 55 Article 3 of the Provisions, in Gazette of the State Council of the People’s Republic of China (in Chinese), 1996, No. 25, 13 September 1996, p. 977. 56 Article 10 of the Provisions, ibid., p. 978. 57 Kung, op. cit., p. 60. 58 See Kung, ibid., p. 62. 59 For details, see “Overview of the Provisional Implementation of ‘Mini-three-links’ between the Offshore Islands of Kinmen and Matsu and Mainland China Prepared by the Mainland Affairs Council”, 18 Decemmber 2000, in http://www.mac.gov.tw/english/indexl-e.htm (accessed 17 June 2004). 60 Kuen-chen Fu, “Legal Definition of the Waters of the Taiwan Strait”, National Taiwan University Law Journal (in Chinese), Vol. 24 (2), 1995, p. 184. 61 See People’s Daily (in Chinese), 1 June 1998. 62 “China and Taiwan Close to Finalizing Joint Energy Project”, Wall Street Journal, 19 December 2001, p. A13. 63 For details, see Zou Keyuan, “Implementing Marine Environmental Protection Law in China: Progress, Problems and Prospects”, Marine Policy, Vol. 23, 1999:207– 225. 64 “Offshore Marine Environmental Quality Bulletin in 2003”, People’s Daily (in Chinese), 4 June 2004, p. 14. 65 See, for example, Article 10 of the PRC EEZ law; and Articles 11, 12, 13 of the ROC EEZ law. 66 For details, see Yann-huei Song, “China’s Missile Tests in the Taiwan Strait: Relevant International Law Questions”, Marine Policy, Vol. 23, 1999, 81–102. 67 Paul H.B.Godwin, “The Use of Military Force against Taiwan: Potential PRC Scenarios”, in Parris H.Chang and Martine L.Lasater (eds), If China Crosses the Taiwan Strait: The International Response (Lanham, Maryland: University Press of America, 1993), p. 22. 68 Article 13 of the ROC Law on the Territorial Sea and Contiguous Zone. 69 China Times (in Chinese), 31 January 1996; and “China voices concern over passage of USS Nimitz through the Taiwan Strait”, China News, 31 January 1996. In 2001, China lodged a protest against Australia for sending three warships to pass through the Taiwan Strait without permission. See “Howard seeks to patch up flotilla row”, South China Morning Post, 30 April 2001, P. 5. 70 See Article 6 of the PRC Law on the Territorial Sea and the Contiguous Zone, in BOIESA, op. cit., p. 12. 71 See Peter Yu Kien-hong, The Taiwan Strait: Changing Political and Military Issues, EAI Working Paper No. 18, 8 January 1999, 5–6. 72 As van Dyke puts it, these regulations are permissible under the transit passage regime. See Jon M.van Dyke, “Legal and Practical Problems Governing International Straits”, in Hamzah (ed.), op. cit., pp. 323–324. 73 See Fu, op. cit., p. 194.

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9 Crackdown on piracy in the South China Sea and prospects for regional cooperation 1 For historical background on piracy in Southeast Asia, see Robert C.Beckman, Carl Grundy-Warr and Vivian L.Forbes, “Acts of Piracy in the Malacca and Singapore Straits”, IBRU Maritime Briefing, Vol. 1 (4), 1994, 1–4. 2 See Wang Li, “Zheng He’s Voyage and Solution of Pirates Issue”, in Nanjing Zheng He Study Association (ed.), Chinese Heading for the Sea (Beijing: Sea Tide Publishing House, 1996) (in Chinese), pp. 311–319. 3 They were: (1) the Strait of Malacca; (2) the northern tip of Sumatra, near the Benaaten Strait; (3) the Phillip Channel and waters near to the Riau Islands of Indonesia; (4) the South China Sea, near to the Anambas Islands; (5) the South China Sea, east of Pulau Tioman, near to Mangkai; (6) the South China Sea, near to Pedra Branca/Pulau Batu Puteh; and (7) the Bangka Strait. SNSA, Press Release, May 1992; cited in Beckman et al., op. cit., p. 13. 4 “Reports on Acts of Piracy and Armed Robbery against Ships”, IMO Doc. MSC.4/Circ. 32, 17 April 2003. 5 See “IMO to organise missions, regional seminars on piracy”, op. cit. 6 Bjorn Aune, “Piracy and Its Repression under the 1982 Law of the Sea Convention”, Ocean Yearbook, Vol. 8, 1989, p. 21. 7 See Andrew Linninton, “Piracy: NUMAST Presentation to ICC Conference”, paper presented to the 3rd ICC-ZIMB International Meeting on Piracy and Phantom Ships, 1–2 June 1998, Kuala Lumpur, p. 3 (on file with the author). 8 See Stanley B.Weeks, “Sea Lines of Communications (SLOC) Security and Access”, in Michael Stankiewicz (ed.), Maritime Shipping in Northeast Asia: Law of the Sea, Sea Lanes, and Security, IGCC Policy Paper No. 33 (Institute on Global Conflict and Co-operation, University of California, February 1998), p. 55. 9 Hal Olson, “Marine Traffic in the South China Sea”, Ocean Yearbook, Vol. 12, 1996, p. 137. 10 See Stephen J.Meyrick, “Development in Asian Maritime Trade”, in Stankiewicz (ed.), op. cit., p. 21. 11 As is said, “a pirate, under the law of nations, is an enemy of the human race; being the enemy of all, he is liable to be punished by all”. Appendix to United States v. Smith, 5 Wheat. (U.S.) 153 (1820), 7–8; quoted in the Harvard Draft Convention, AJIL, Supplement, Vol. 26 (4), 1932, 763. 12 Patricia W.Birnie, “Piracy Past, Present and Future”, Marine Policy, Vol. 11 (3), 1987, 163. 13 450 UNTS 82. 14 L.F.E.Goldie, “Terrorism, Piracy and the Nyon Agreement”, in Yoram Dinstein (ed.), International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne (Dordrecht: Martinus Nijhoff, 1988), p. 227.

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15 Birnie, op. cit., p. 180. 16 On 3 October 1985, a group of Palestinian guerrillas hijacked the Italian cruise ship Achille Lauro while it was in Egyptian territorial waters. The hijackers demanded the release of 50 Palestinians held in Israel in return for the release of the passengers. They ordered the ship to sail to Syria, which refused them port entry. The hijackers then on 8 October killed an American passenger. Several days later the four hijackers gave themselves up to the Egyptian authorities. On 11 October an Egyptian civilian aircraft was intercepted by United States military aircraft over the Mediterranean Sea and instructed to land at an air base in Sicily. Four Palestinians on board were detained by the Italian authorities and subsequently indicted and convicted in Genoa for offences related to the hijacking of the ship and the death of the American passenger. 17 Natalino Ronzitti, “The Law of the Sea and the Use of Force Against Terrorist Activities”, in N.Ronzitti (ed.), Maritime Terrorism and International Law (Dordrecht: Martinus Nijhoff, 1990), p. 1. 18 A different view holds that internal seizures could be piracy. See Samuel P. Menefee, “Piracy, Terrorism, and the Insurgent Passenger: A Historical and Legal Perspective”, in Ronzitti (ed.), op. cit., p. 60. In addition, it is acknowledged that even if the internal seizure was not a piracy in international law, it is still a piracy under municipal law of the flag state. 19 See Alfred P.Rubin, “Is Piracy Illegal?” AJIL, Vol. 70, 1976, p. 95; see also Clyde H.Crockett, “Toward a Revision of the International Law of Piracy”, De Paul Law Review, Vol. 26, 1976, 78–99. 20 International Law Association, “Piracy: Sea and Air”, Report of the Fifty-fourth Conference, 23–29 August 1970, p. 708. 21 The reason is that the acts of piracy committed within the sea areas of national jurisdiction are subject to the municipal laws of the state concerned, which is competent to suppress and punish acts of piracy. However, the problem remains whether such competence can produce effective suppression. 22 See Birgit S.Olsen, “Piracy and the Law”, paper presented to the IMO Seminar and Workshop on Piracy and Armed Robbery against Ships, Singapore, 3–5 February 1999, p. 2 (on file with the author). 23 IMB Piracy Reporting Centre, Piracy and Armed Robbery against Ships, Report for the Period of 1 January-30 June 1998, Kuala Lumpur, July 1998, p. 1. 24 See Aune, op. cit., pp. 29 and 36–37. 25 Thomas A.Clingan Jr, “The Law of Piracy”, in Eric Ellen (ed.), Piracy at Sea (Paris: ICC Publishing SA, 1989), p. 170. 26 See Burdick H.Brittin, “The Law of Piracy: Does It Meet the Present and Potential Challenges?” in Ellen (ed.), op. cit., p. 165. 27 See “IMO acts to combat piracy”, in http://www.imo.org/news/298/piracy.htm (accessed 17 June l998). 28 “Piracy and Armed Robbery against Ships”, Maritime Safety Committee 68th session, 28 May to 6 June 1997, in http://www.imo.org/imo/meetings/msc/piracy.htm (accessed 17 June 1998). 29 “IMO to organise missions, regional seminars on piracy”, op. cit.

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30 27 ILM (1988) 668. 31 See Satya N.Nandan and Shabtai Rosenne (eds), United Nations Convention on the Law of the Sea 1982: A Commentary, Vol. III (The Hague: Martinus Nijhoff, 1995), p. 185. 32 Article 3 of the Rome Convention. 33 27 ILM (1988) 685. 34 See Sam Bateman and Doug MacKinnon, “The Role of Port States to Suppress Acts of Piracy in Their Waters”, paper presented to the 3rd ICC-IMB International Meeting on Piracy and Phantom Ships, 1–2 June 1998, Kuala Lumpur, p. 5 (on file with the author). 35 See Naomichi H.Terazaki, “The UNCTAD Perspective on Piracy”, in Ellen, op. cit., p. 173. The term “maritime fraud” is usually used to include any dishonest act in connection with maritime affairs even though such acts may not necessarily involve acts of concealment, deceit or misrepresentation typically thought to constitute elements of fraud in a legal context. Thus, acts of simple theft, piracy, and barratry are generally included within the term. See United Nations Conference on Trade and Development (UNCTAD), Review and Analysis of Possible Measures to Minimise the Occurrence of Maritime Fraud and Piracy, TD/B/C.4/AC.4/2, 21 September 1983, p. 4. 36 See Harvard Draft Convention on Piracy, op. cit., p. 755. 37 The United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court was held from 15 June to 17 July 1998 in Rome, Italy and adopted the Rome Statute of the International Criminal Court. 38 D.P.O’Connell, The International Law of the Sea (Oxford: Clarendon Press, 1984), Vol. II, p. 966. 39 Full text is reprinted in Alfred P.Rubin, The Law of Piracy (Newport, Rhode Island: Naval War College Press, 1988), pp. 362–369. It should be noted that before 1698, there were also relevant provisions in the laws of England for the punishment of pirates and robbers at sea, such as the Act of 1536. 40 For details, see O’Connell, op. cit., pp. 981–983. 41 See Martin’s Annual Criminal Code 1998 (Canada Law Book Inc.), p. 74. 42 Barry H.Dubner, The Law of International Sea Piracy (The Hague: Martinus Nijhoff, 1980), p. 40. 43 For example, the Canadian Criminal Code, op. cit., pp. 74–75. 44 See Gabriel V.Trinidad (ed.), The Revised Penal Code, 1983 Edition (Quezon City: U.P.Law Center, 1984), p. 52. 45 For example, Article 116 on, inter alia, sabotage of vessels; Article 117 on, inter alia, sabotage of navigation lanes; and Article 267 on robbery. The Criminal Law of the People’s Republic of China, which was adopted on 1 July 1979 and amended on 14 March 1997, can be found in Gazette of the Standing Committee of the National People’s Congress of the People’s Republic of China (in Chinese), 1997, No. 2. 46 Article 9 of the Criminal Law of the PRC. 47 China ratified the three international instruments on 7 June 1996 and 1 March 1992, respectively.

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48 Text in BOIESA, Limits in the Seas: Straight Baseline Claim: China, No. 117, 9 July 1996, pp. 11–14. 49 Text in People’s Daily (in Chinese), 30 June 1998. 50 ICC-IMB, Piracy and Armed Robbery against Ships, Annual Report, 1 January–31 December 1997, p. 11. 51 See People’s Daily (Overseas Edition) (in Chinese), 9 July 1998. 52 See Tunku Sofiah Jewa, Public International Law: A Malaysian Perspective (Kuala Lumpur: Pacifica Publications, 1996), Vol. 1, p. 249 53 Masters fear a reflection on their discipline and watch-keeping, or fear delays in port while an attack is investigated, or fear an increased risk of further attack by drawing attention to themselves. Owners fear a possible loss of commercial intelligence or credibility. They may also be afraid of causing diplomatic offense to the country with which they are trading, or of being perceived by local officials as “complainers”. Additionally, insurance costs may rise and there may be difficulties, and demands for high risk payments, from crew unions. States themselves may also wish to keep attacks secret for commercial or national security reasons. I.R.Hyslop, “Contemporary Piracy”, in Ellen (ed.), op. cit., p. 5. 54 Personal interview with the officer in IMB-PRC, 6 August 1998. 55 Eric F.Ellen, “Piracy”, in Eric F.Ellen (ed.), Violence at Sea (Paris: ICC Publishing S.A., 1986), p. 228. 56 See Article 14, Law on the Territorial Sea and the Contiguous Zone; and Article 12, Law on Exclusive Economic Zone and the Continental Shelf. 57 Article 111 (3) of the LOS Convention. 58 See UNCTAD, op. cit., p. 65. 59 Personal interview with the officer in IMB-PRC, 6 August 1998. 60 IMB-PRC,op. cit., p. 7. The IMB-PRC regards this as an effective deterrent against piratical attacks. 61 John W.Sundberg, “Piracy: Air and Sea”, De Paul Law Review, Vol. 20, 1970, p. 385. 62 Mark C.Farley, “International and Regional Trends in Maritime Piracy 1989– 1993”, Thesis, Naval Postgraduate School, 1993, p. 24; cited in Barry Hart Dubner, “Maritime Violence—The Problems with Modern Day Piracy”, Issue Paper No. 9/95, Maritime Institute of Malaysia, Kuala Lumpur, p. 9. 63 Clingan, op. cit., p. 171. 64 See, for example, the First Meeting of the Technical Working Group on Safety of Navigation, Shipping and Communication in the South China Sea, Jakarta, 3–6 October 1995, in “Workshop and Technical Working Group Statements”, http://www.law.ubc.ca/centres/scsweb/statement.html (accessed 20 March 1998). 65 Declaration on the Conduct of Parties in the South China Sea, in http://www.aseansec.org/13163.htm (accessed 2 July 2003). 66 See Linnington, op. cit., pp. 12–13. 67 Farley, op. cit., pp. 4–5; cited in Dubner, op. cit., p. 8. 68 The IMB-PRC stated in its report that “the potential for environmental disaster should not be underestimated, as a significant number of attacked vessels drift unsupervised during and after the piratical incidents”. Piracy Report (January-

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December 1994), December 1994, p. 7. 69 See “Piracy and Armed Robbery against Ships”, op. cit. 70 It is reported that Indonesia and Singapore carried out a bilateral military drill in their jurisdictional waters in May 2002. See Lianhe Zaobao (Singapore) (in Chinese), 16 May 2002. 71 Dubner, op. cit., p. 10. 72 ICC-IMB, op. cit., p. 2. 73 Beckman et al., op. cit., p. 18 n. 25. 74 15 ILM (1977) 1272. It entered into force on 4 August 1978. 75 Article 6 of the European Convention on the Suppression of Terrorism. 76 19 ILM (1980) 325. It was concluded on 4 December 1979. 77 10 ILM (1971) 255. It entered into force on 16 October 1973. 78 See David Freestone, “International Co-operation against Terrorism and the Development of International Law Principles of Jurisdiction”, in Rosalyn Higgins and Maurice Flory (eds), Terrorism and International Law (London: Routledge, 1997), p. 54. 79 Text is available in http://www.aseansec.org/14838.htm (accessed 18 July 2003). 80 Samuel P.Menefee, “Possible Foreign Naval Intervention in cases of Piracy in International and Coastal Waters”, paper presented to the 3rd ICC-IMB International Meeting on Piracy and Phantom Ships, 1–2 June 1998, Kuala Lumpur, p. 1 (on file with the author). 81 Alberico Gentili, De jure belli libri tres, translated by John C.Rolfe (New York: Oceana Publications, 1964), p. 423.

10 Maritime historic rights and China’s practice 1 See People’s Daily (in Chinese), 30 June 1998. An unofficial English version was translated and published by this author in The MIMA Bulletin, Vol. 7 (1), 1999, 27– 29. Another variant English translation is available in Law of the Sea Bulletin, No. 38, 1998, 28–31. 2 For instance, in the context of the Tribunal’s task in the first stage of the Eritrea/Yemen case, the award gives an important exposition of the meaning of historic title in international law and the applicability of equity or equitable principles to the issues of territorial sovereignty. Eritrea/Yemen Case, reprinted in 38 ILM 1999, paras. 108–113. 3 Yehuda Z.Blum, “Historic Rights”, in Rudolf Bernhardt (ed.), Encyclopaedia of Public International Law, Instalment 7 (Amsterdam: North-Holland Publishing Co, 1984), p. 120. 4 Blum, ibid., p. 121. 5 Sperduti, “Sul Regime Giuridico dei Mari”, 43 Rivista di Diritto Internazionale, 58, 72; cited in Andrea Gioia, “Tunisia’s Claims over Adjacent Seas and the Doctrine of

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‘Historic Rights’”, Syr. J.Int’l L. and Com., Vol. 11, 1984, p. 328. 6 Black’s Law Dictionary, 6th edn (St. Paul, Minn: West Publishing Co., 1990), p. 730. 7 Leo J.Bouchez, The Regime of Bays in International Law (Leyden: A.W. Sythoff, 1964), p. 199. 8 See UN Doc., A/CONF.13/C.1/L.104, cited in UN Doc. A/CN.4/143, 9 March 1962, entitled “Juridical Regime of Historic Waters, Including Historic Bays”, Yearbook of the International Law Commission, Vol. 2, 1962, p. 3. 9 Mitchell P.Strohl, The International Law of Bays (The Hague: Martinus Nijhoff, 1963), p. 252. 10 Merrill Wesley Clark, Jr., Historic Bays and Waters: A Regime of Recent Beginnings and Continued Usage (New York: Oceana Publications, Inc., 1994), p. 8. 11 Department of Defence, Maritime Claims Reference Manual, DOD 2005.1-M, 1987, 1–3; cited in Clark, ibid., p. 8, n. 18. 12 UN Doc. A/CN.4/143, op. cit., p. 5. 13 Bouchez, op. cit., p. 281. 14 Fisheries Case (U.K. v. Norway), 1951 I.C.J. 132 (Judgement of Dec. 18). 15 D.P.O’Connell, The International Law of the Sea (Oxford: Clarendon Press, 1982), Vol. 1, p. 417. 16 See U.N.Doc. A/CN.4/143, op. cit., p. 6. 17 UN Doc. A/CN.4/143, op. cit., p. 13. 18 UN Doc. A/CN.4/143, ibid., p. 16. 19 UN Doc. A/CN.4/143, ibid., p. 12. 20 For the discussion of these issues, see Blum, op. cit., pp. 122–124; and UN Doc. A/CN.4/143, op. cit., pp. 13–23. 21 See Bouchez, op. cit., p. 238. (As regards claims to historic rights over parts of the sea, a distinction must be made between (1) historic rights resulting in sovereignty over a certain part of the sea, and (2) historic rights establishing special fishing rights.) See also Yehuda Blum, Historic Titles in International Law (The Hague: Martinus Nijhoff, 1965), pp. 247–248. (Both categories of such rights may justly be termed “historic rights”. It would appear, however, that only the first kind of historic rights relates to “historic waters” properly so-called, whereas the second deals with what may be termed “non-exclusive historic rights”, in the sense that they do not imply a claim of full sovereignty.) 22 During the conference, the proposal advanced in 1976 by Colombia regarding the standards of claiming historic waters was discarded. See UNCLOS III Official Records (1977), Vol. 5, p. 202. 23 The preamble of the LOS Convention affirms that “matters not regulated by this Convention continue to be governed by the rules and principles of general international law”. 24 Fisheries Case (UK v. Norway), ICJ Reports, 1951, p. 116. 25 ICJ Reports, 1951, p. 139. See also Surya P.Sharma, Territorial Acquisition, Disputes and International Law (The Hague: Martinus Nijhoff, 1997), p. 174. 26 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras; Nicaragua

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intervening), ICJ Reports, 1992, p. 351. For details of the Gulf of Fonseca, see Hector Gros-Espiell, “Gulf of Fonseca”, in Rudolf Bernhardt (ed.), Encyclopedia of Public International Law, Instalment 12 (Amsterdam: North-Holland, 1990), pp. 110–112. 27 L.F.L.Oppenheim, International Law, 8th edn (London and New York: Longmans, Green, 1955), Vol. 1, p. 508. 28 Blum, op. cit., pp. 269–270. 29 For details, see Chapter 5. 30 R.R.Churchill and A.V.Lowe, The Law of the Sea (Manchester: Manchester University Press, 1983), p. 37. 31 As a general rule, an accepted length of the closing line is 24 nm. 32 People’s Daily (in Chinese), 23 September 1957. 33 For references, see John M.Spinnato, “Historic and Vital Bays: An Analysis of Libya’s Claim to the Gulf of Sidra”, ODIL, Vol. 13 (1), 1983, 65–85; Yehuda Z.Blum, “Current Development: The Gulf of Sidra Incident”, AJIL, Vol. 80, 1986, 669–677; and Faraj Abdullah Ahnish, The International Law of Maritime Boundaries and the Practice of States in the Mediterranean Sea (Oxford: Clarendon Press, 1993), pp. 194–251. 34 See O’Cornell, op. cit., p. 418. 35 As pointed out by Buchholz, “[p]rotests against this demarcation were never recorded”. See Hanns J.Buchholz, Law of the Sea Zones in the Pacific Ocean (Singapore: Institute of Southeast Asian Studies, 1987), p. 85. 36 See Gioia, op. cit., pp. 327–376. 37 The Gulf was claimed as territorial sea by Laws No. 62–35 of 16 October 1962 and No. 63–49 of 30 December 1963. The texts of the Laws are reprinted in Journal Officiel de la République Tunisienne, 12–16 October 1962, p. 1224 and 31 December 1963, p. 1870. 38 Tunisia made its claim in 1973 by a decree. 39 See Gioia, op. cit., p. 346. 40 Gioia, ibid., p. 347. 41 See Gioia, ibid., p. 359. 42 See the Libyan Counter-Memorial, 1980 ICJ Pleadings, p. 53. 43 Gioia, op. cit., p. 365. 44 See Continental Shelf (Tunisia v. Libyan Arab Jamahiriya), 1982 ICJ, Vol. 18 (Judgement of 24 Feb.), p. 68. 45 Gioia, op. cit., p. 369. 46 See Gioia, op. cit., p. 370. 47 The Case of the Continental Shelf, op. cit., p. 73. 48 The Case of the Continental Shelf, ibid., p. 74. 49 Gioia, op. cit., p. 371. 50 Gioia, ibid., p. 373. 51 For a thorough assessment of the case, see Barbara Kwiatkowska, “The Eritrea/Yemen Arbitration: Landmark Progress in the Acquisition of Territorial Sovereignty and Equitable Maritime Boundary Delimitation”, IBRU Boundary and Security Bulletin, Vol. 8(1), 2000, 66–86. 52 Eritrea-Yemen Arbitration Award, Phase I: Territorial Sovereignty and Scope of

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Dispute, 9 October 1998, para. 2, available in http://www.pcacpa.org/ERYEAwardTOC.htm (accessed 17 May 2000). 53 See Eritrea–Yemen Arbitration Award, ibid., paras 13–14. 54 See Eritrea–Yemen Arbitration Award, ibid., paras. 31–41. 55 Eritrea–Yemen Arbitration Award, ibid., para. 123. 56 Eritrea–Yemen Arbitration Award, ibid., para. 126. 57 Eritrea–Yemen Arbitration Award, ibid., para. 449. 58 Eritrea–Yemen Arbitration Award, ibid., para. 526. 59 Fu Chu, Concerning the Question of Our Country’s Territorial Sea, Beijing, 1959; translated in J.A.Cohen and Hungdah Chiu, People’s China and International Law (Princeton: Princeton University Press, 1974), p. 483. 60 Fu Chu, ibid., p. 483. 61 Office of Laws and Regulations, State Oceanic Administration (ed.), Collection of the Sea Laws and Regulations of the People’s Republic of China (Beijing: Ocean Press, 1991), pp. 3–4. 62 Fu Chu, op. cit., p. 484. 63 See Fu Chu, ibid., 64 Fu Chu, ibid., p. 486. 65 See BOIESA, Straight Baseline Claim: China (Limits in the Seas No. 117, 9 July 1996), p. 8. 66 See W.E.Butler, The Law of Soviet Territorial Waters (New York: Praeger, 1967), pp. 108–110. 67 Strohl, op. cit., p. 338. 68 See People’s Daily (in Chinese), 23 September 1957. 69 The other arguments were: geographic conditions, significance of the economy, significance of national defence interest, and historical ties. See the Soviet Note Verbale to the Japanese Government, 7 January 1958, in Japanese Annual of International Law, Vol. 2, pp. 215–216. 70 Clark, op. cit., p. 190. 71 Clark, ibid., p. 202. 72 See Fu Chu, op. cit., p. 483. 73 It should be noted that China’s support was in September 1957, and China’s claim to the Bohai Bay was in September 1958, just one year after the Soviet claim. 74 See Article 1 of the Treaty of Peking, reprinted in Wang Tieya (ed.), A Comprehensive Compilation of Old Sino-Foreign Treaties and Agreements (Beijing: San Lien, 1982) (in Chinese), Vol. 1, pp. 149–150. 75 For details, see Hal F.Olson and Joseph Morgan, “Chinese Access to the Sea of Japan and International Economic Development in Northeast Asia”, Ocean and Coastal Management, Vol. 17, 1992, 57–79. 76 The draft law contained no stipulation on historic rights, and Article 14 was inserted in the final stage of adoption at the National People’s Congress. However, there were no explanations. See Law on the Exclusive Economic Zone and Continental Shelf of the People’s Republic of China (draft) (in Chinese), December 1996 (on file with the author); Li Zhaoxing, “The Explanation on the Law on the Exclusive Economic Zone and Continental Shelf (draft)”, 24 December 1996, in

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Gazette of the Standing Committee of the National People’s Congress of the People’s Republic of China (in Chinese), No. 3, 1998, pp. 278–279; and Zhou Keyu, “The Report of Reviewing the Law on the Exclusive Economic Zone and Continental Shelf of the People’s Republic of China”, ibid., pp. 280–282. 77 The revised Law on Marine Environmental Protection was adopted on 25 December 1999 and came into force on 1 April 2000. The text is reprinted in People’s Daily (in Chinese), 28 December 1999. 78 See Zou Keyuan, “Implementing Marine Environmental Protection Law in China: Progress, Problems and Prospects”, Marine Policy, Vol. 33 (3), 211. 79 China might also have historic rights in the Sea of Japan. However, the present chapter only places the focus on the South China Sea. 80 For details on the line and its legal implications, see Chapter 3. 81 See Kuan-Ming Sun, “Policy of the Republic of China towards the South China Sea”, 19 Marine Policy, 1995, p. 408. 82 For details, see “Legal Regime of China’s Historic Waters in the South China Sea”, Issues and Studies (Chinese edition), Vol. 32, No. 8, 1993, 1–12. 83 Pan Shiying, “South China Sea and the International Practice of the Historic Title”, paper presented to the American Enterprise Institute Conference on the South China Sea, Washington, 7–9 September 1994, p. 5. 84 See Wu Fengbing, “Historical Evidence of China’s Ownership of the Sovereignty over the Spratly Islands”, in China Institute for Marine Development Strategy (ed.), Selected Papers of the Conference on the South China Sea Islands (Beijing: Ocean Press, 1992) (in Chinese), p. 111. 85 Jiao Yongke, “No Question of Re-demarcation in the South China Sea”, Ocean Development and Management (in Chinese), Vol. 17 (2), 2000, p. 52. 86 Chinese literature mentions many historical evidences of China to explore the South China Sea, for instance, Li Jinming, “Evidences of Exploration and Management of the Paracel and Spratly Islands by the Chinese People”, Southeast Asian Affairs: A Quarterly Journal (in Chinese), No. 2, 1996, 82–89; and TehKuang Chang, “China’s Claim of Sovereignty over Spratly and Paracel Islands: A Historical and Legal Perspective”, Case W.Res. J.Int’L L, Vol. 23, 1991, 399–420. A Taiwanese scholar holds the view that since from ancient times, China sent naval forces to patrol the South China Sea, arrested pirates, assisted in salvage, operated fishing activities, China should enjoy undoubted “historic interests” within the U-shaped line in regard to economic resources, navigational management, and security of national defense. Remarks of Fu Kuen-chen at the Workshop on “Legal Regime of China’s Historic Waters in the South China Sea”, op. cit., p. 7. 87 See O’Connell, op. cit., Vol. 2, p. 713. 88 See Separate Opinion of Judge ad hoc Jimenez de Arechage, op. cit., pp. 123–124. 89 Nguyen Hong Thao, “China’s maritime moves raise neighbors’ hackles”, Vietnam Law and Legal Forum, July 1998, 21. 90 Nguyen, ibid., 21–22. 91 See “Vietnam: Dispute regarding the Law on the Exclusive Economic Zone and the Continental Shelf of the People’s Republic of China which was passed on 26 June 1998”, Law of the Sea Bulletin, No. 38, 1998, 55.

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92 Clark, op. cit., p. 168. 93 See Yearbook of the International Law Commission, 1955, Vol. 1, p. 214. 94 The Continental Shelf (Tunisia/Libya) Case, 1982 ICJ Rep., 74; quoted again in Dispute (El Salvador/Honduras) (Judgement), 1992 ICJ Rep., p. 589. 95 L.F.E.Goldie, “Historic Bays in International Law—An Impressionistic Overview”, Syr. J.Int’l L. and Com., Vol. 11, 1984, 271–272.

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Index Page reference followed by n signifies Notes; t signifies Table

Achille Lauro Incident (1988) 123 acquired and existing rights 148 Agreed Water Area 152,158 airspace and overflight 13; international and national 15; Law of the Sea 167n; LOS Convention 14; state control 14; over the EEZ 16–7; over territorial sea 29 allowable catch 160; annual 88, 153; in the EEZ 34 Amoy Bay see Xiamen Bay anti-Japanese war 44 anti-piracy measures 123–5; commando units in Malaysia 128; patrols 130 archipelagic waters 21, 50–1,102 arrest and detention 23, 79, 88; fishing boats and crews 7, 152; see also detention artificial installations or islands 86, 114, 147 ASEAN countries 74, 129 Asia-Pacific Region 43; Asia Pacific Operations Center Plan 118; United Nations Economic Commission for Asia and the Far East 33 Bac Bo Gulf 63, 66; see also Gulf of Tonkin Bach Long Vi Island (Bai Long Wei Island) 45, 74 Bashi Channel 35 baselines 15, 31–2,50, 69, 90; archipelagic 32, 59; demarcation 120; low-water or normal 32; mainland China 192n; Paracel Islands 50;

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220

see also straight baselines Beibu Gulf 63, 74, 99, 103, 158; boundary delimitation 97, 102; closing line 103; fishery management 96; Fishing Ground 95; see also Gulf of Tonkin Beilun River mouth 103 Bien Dong Sea see South China Sea Bohai Gulf 29, 68, 143, 146; historic status 143–5 boundary delimitation 37, 69, 129; issues between China and Vietnam 103–4 British navy minesweeping 24 Brunei 6–7, 43; and East Malaysia 121 buffer zone for small fishing boats 163; coordinates 98, 103, 162, 165 cabotage 118 Cape Verde restrictions 18 Charter of the United Nations 16, 22 China 43, 52, 60, 63–5,70–5,78, 83, 86, 89, 95; protests 44, 46, 87, 93; and Taiwan 6, 43; unification of marine laws 38 China Fisheries Association 79 China’s EEZ 80, 83–4,95; law 34, 148; special or historic 148 China’s historic claims 148–9,210n; in the Sea of Japan 145 Chinese ceded territory 144–5 Chinese Civil War 114 Chinese fishing: Fishery Law 84; in the high seas 85; marine industry 93; poor fishing equipment 78; in the Sea of Japan 80 Chinese marine environmental protection regulations, enforcement of 115 Chinese traditional fishing rights: Gulf of Tonkin 101; in Japan’s EEZ 87; Vietnam’s EEZ 102 Chinese traditional maritime boundary line 102, 53 Chiungchow Strait see Qiongzhou Strait closing line for bays or gulfs 143

Index

221

coastal states 1, 9, 14, 18, 27, 30, 35, 93; competent authorities 21, 137; EEZ 50; exploitation projects 126; historic waters 67; jurisdiction areas 56, 140; law enforcement 19; laws and regulations 33; limit of territorial sea 66; LOS Convention 56 restraint of jurisdiction 116; sovereign rights 34 Coast Guard Headquarters in Japan (regional) 156 coastguard vessels 20, 23 commercial traffic between Asia, United States and the Philippines 182n Common Fishery Zone 98, 100, 102, 160–1; water area coordinates 158, 164 communications at sea 119 Communist regime on mainland China 30, 108 compensation 13, 21; for Chinese fishermen 26 competent authorities 152; in China and Vietnam 197n conservation of fisheries 78–9,80, 87, 90, 96–7,99, 153,160–2,164; in the Agreed Water Area 101; legislation 23, 71, 82–3,101, 147; LOS Convention 87, 97; management 83, 192n contiguous zone 1, 21, 33, 38, 46; China’s 83; EEZ 170n; extension 119, 120; LOS Convention 33; ROC law 33 continental shelf 1, 14, 18, 19, 38, 50–1,78, 115, 127; delimitation 34, 141; installations 21; LOS Convention 51–2,107, 148; natural prolongation 34, 71,71,; rights 148; shared 71; submarine cables and pipelines 36; between Taiwan and Japan 33; Tunisia-Libya dispute 141 cooperation of countries bordering the South China Sea 123, 132; to combat crimes at sea 117, 128, 130, 132; creeping jurisdiction 119 crimes endangering public security see piracy

Index

222

Crestone Energy Corporation 46–7; concession deal 48, 52, 180n Declaration on the Territorial Sea 31, 45, 57, 112–3,143 Decree on Sanctioning Administrative Violations in the Territorial Waters and Adjacent Areas, Exclusive Economic Zones and the Continental Shelf 95 delimitation agreements: Beibu Gulf 98, 103, 158; Gulf of Thailand 74; Gulf of Tonkin 74–5,95 delimitation of maritime boundaries 34, 50; EEZ and continental shelf 69, 89, 91 detention of fishing vessels 99, 161; Chinese fishing vessels 96; confiscation of fishing gear 95; vessel flying the flag of another State 193n Diaoyu Islands 32; dispute over 92; territorial waters 92 disputes: over islands in the South China Sea 39, 45, 53, 74; LOS Convention 61, 74; peaceful settlement 61,74, 137; relating to fishing activities 97, 117, 163 distress or emergency 98, 155 Division for Ocean Affairs and the Law of the Sea (DOALOS) 167n, 170n Dongsha Islands see Pratas Islands drilling on the continental shelf 1, 35, 86 East Asia 7; East Asian Seas Program 9 East China Sea 20, 29, 32, 33, 43, 78, 80–1,87–9,107,153; disputed areas 27, 92; fisheries 79; fishing operations 92; shared EEZs 80 EEZ 27, 33–4,50, 63, 102,158, 162; airspace and overflight 13, 15–6; delimitation 97, 141; expansion 128; of islands or rocks 50, 55 legislation on fishery management 84; LOS Convention 15, 38, 47, 68, 85–6,96, 107, 148; national jurisdiction 18; non-continental shelf area 148; of PRC 153; PRC and Japan 152; in Taiwan Strait 111, 113

Index

223

enclosed seas 190n; see also semi-enclosed seas enforcement mechanisms 127; piracy legislation 126–7,127–8 environmental disaster, potential 206 equidistant line 52, 70, 73, 188n; LOS Convention 69 Eritrea-Yemen Arbitration 142 European Convention on the Suppression of Terrorism 130 exclusive economic zone see EEZ extension of territorial seas and contiguous zones 118, 120 facilities for permitted fishing vessels 99, 161 fish stocks 30; within the EEZ 81; management of 192n; migratory and straddling 20, 83, 94, 98, 101; sedentary fisheries 141; transboundary 81 Fishery Adjustment Committee 86 Fishery Agreement Between PRC and Japan 79, 156, 152–6; term of validity 156 fishery agreements 84–5,87–8,92, 95;97–8,103; LOS Convention 84, 102; with other countries 93; with South Korea 94; with Vietnam 94 Fishery Committee, tasks of 154 fishery cooperation 158; in the Agreed Water Area 97 Fishery Law (1949) 86 fishery management 23, 79–83,90, 94, 101, 196n; in the East China Sea 92–4; in the EEZ 83, 94; exhausted 197n; in the Gulf of Tonkin 96, 103; in Taiwan 35 fishery operations: in the Common Fishery Zone 162; in the EEZ 156; in South China Sea 46 fishery scientific research 101, 164; in the EEZ 34; LOS Convention 18, 101 fishing log 160, 194n fishing mainland-controlled water area 116–7; quotas 89; restrictions 191n

Index

224

fishing operations: in China’s EEZ 193n; in jurisdictional waters of other countries 85, 175n fishing permits 86, 88–9,92, 98–9,117, 152, 157, 160, 194n, 200n; reciprocal 91 fishing rights in South China Sea 148 fishing zones 79–80,85, 88, 146 Food and Agricultural Organization 83 foreign aircraft see foreign ships and aircraft foreign fishing activities 95; bilateral agreements 35; in China’s EEZ and territorial sea 84; research activities restricted 36 foreign ships and aircraft 13, 19, 110, 112, 119–20 foreign warships 112, 119, 175n; authorization 112; freedom of navigation 111; regulation of passage 31 Formosa Strait 198n freedom of navigation 113, 119, 148; in the EEZ 123; by foreign vessels 111, 115; for international navigation 110–1; and overflight 51, 110, 114, 169n freedom of the high seas 14, 16, 17, 18, 20, 66, 113; navigation and overflight 36 Geneva Conventions on the law of the sea 33, 122 guidelines and legal education for fishermen 99, 160, 164 Gulf of Bohai see Bohai Sea Gulf of Fonseca 68, 140 Gulf of Tonkin 44, 46, 95, 102, 144, 148; Bach Long Vi Island 72–3; boundary delimitation 64, 70, 74; cooperative activities 74, 95; delimitation 73, 97; disputes 72, 167n; division of islands 65; historic waters 65, 67, 68; LOS Convention 63; mineral resources 63; negotiations 74; oil exploration 64; overlapping claims 63; sea route 63; Sino-Vietnamese maritime boundary 63; territorial seas 64,72 Gulf of Tonkin fisheries 63, 95, 139;

Index

225

agreements 74; common zone 90; joint development 71; management 101; resources 95, 96, 101 Hainan Island 32, 63 high seas 1, 21, 138; international shipping corridor 116; reduced 127–8 historic and traditional rights 149; bays or gulfs 69, 136, 139, 143, 149, 208n; burden of proof 68, 138; controversial claim 140; restatement 147 historic claims: accepted by ICJ 139–41; by China 46; rights acquired 136 historic rights 53, 139–40,142,146–7,148–9,207– acquired 141; claimed 136–7; embedded in China’s EEZ Law 146, 148; fishing 146; as a generic concept 138; in international law 136, 149; in the maritime context 136,142; preconditions 150; relating to bays and gulfs 136; with tempered sovereignty 147; unfavorable to new states 149 historic status 68; loss of 140 historic title 69, 139, 142; in international law 206n; shared by more than one country 140 historic waters 47–8,53, 68, 136–7,139, 144, 145, 148, 208n; conditions for claims 67, 138,187n; legal status 137; precedents 140; in the South China Sea 147; tempered 149; territorial seas or internal waters 139; title to 137–8 Hong Kong 38; internal waters 38 Huangyan Island 55, 60; see also Scarborough Reef

Index

226

illegal activities 99, 161; immigration 117; prevention and punishment 119; transportation 96 illegal fishing 92, 117, 193n; dynamite 201n; in Gulf of Tonkin 102 increased shipping in Southeast Asia and South China Sea 121 Indonesia 48, 50, 129 innocent passage 14, 17, 20, 31, 98, 110–2,119; of foreign vessels 14, 30; LOS Convention 31, 98; for warships 32, 115, 174n Intermediate Zone 89–92 internal seizure of ship 122; piracy under municipal law of flag state 203n; see also piracy internal waters 21, 46, 48, 111, 112, 128, 137, 145; Chinese 68, 112, 118, 143; legal status 51; Taiwanese 111; Vietnamese 68 International Court of Justice (ICJ) 20, 24,68; definition of historic waters 137 international law 8, 13, 16, 18, 29, 48; customary 142; humanitarian law 24; on interpretation of a treaty 65; against piracy, customary 128 international navigation 13, 17; LOS Convention 119–20; in Taiwan Strait 116 international straits 109, 111, 118–20 International Tribunal for the Law of the Sea 2000 (ITLOS) 22, 24, 102 intra-Asian trade increased 121 islands, uninhabited 121 James Shoal 44, 52 Japan 35, 53, 83, 86, 89, 92–3,116; EEZ 86, 89; fishing on China’s coast 78–9,190n; fishing regulations 78; marine fishery management 86; protest 145 Japan–China Fisheries Council 78 Japan–Korea Fishery agreement 93–4 Jinmen Islands 30, 107, 116–7

Index

227

joint development of resources 61, 96, 126, 160; oil and gas 61; South China Sea 61,129; Spratly Islands 72; Taiwan Strait 118 Joint Fishery Committee 90–2,98, 164; functions 100–1,163–4 juridical bay 68–9 Kalayaan Islands 58, 60 Kalimantan 29, 121 Kaohsiung offshore shipping center 118 Korean Peninsula 7, 53; Strait 115–6 law enforcement 99, 161; in extended water areas 127; responsibility 129; at sea 19; in the South China Sea 121; treaty obligation 129 legislation on marine resources 79–80,83, 85–6,89, 95,158 legislation on maritime zones 30, 52, 57, 104, 118, 126, 127, 136, 148; China (PRC) 29–31,46, 68, 83, 113, 127; Japan 22, 80, 85; Taiwan (ROC) 107, 112, 113, 118, 120; Vietnam 68, 95 Leizhou Peninsula 63 LOS Convention 1, 13, 27, 107, 126–8,158 Luzon Island 43, 55 Macclesfield Bank 43, 52, 60 Malacca and Singapore Straits 130 Malaysia 6, 29, 43, 52, 121; historic claims 150 management of fisheries: in the East China Sea 80; in the high seas 118 maps: Bai Meichu’s atlas edition 44–5; Chinese 49, 52, 55; of restricted and prohibited areas 200n; Vietnamese 72 marine environment 83, 86; protection law 113, 118 marine fisheries production 93; zero growth policy 85 marine living resources 56, 81–2,93, 95, 97, 102, 154, 158;

Index

228

in the Common Fishery Zone 98; protection from overexploitation 89 marine scientific research 18, 26, 35,86, 147; in the EEZ or continental shelf 18, 115 maritime boundary delimitation 27, 39, 52, 67, 69, 71–4,89–91,91,; 52, 64; disputes 7, 52, 61; future delimitations 61; in the Gulf of Tonkin 63; treatment of islands 73–4 maritime fraud including piracy 126, 204n maritime jurisdiction 7, 107; derivation 13, 59, 145 maritime safety 20; use of waters 170n; vessels 167n, 174n maritime terrorist acts see piracy marking of fishing vessels 21, 160, 162 Mazu Islands 30, 107, 116–7 median line 86, 87, 90, 139, 188n mid-ocean islands 179n military activities 17, 20; in the EEZ 27; foreign 18, 27, 84; LOS Convention 17–8; prohibition on 18; reprisals 19; restrictions 18; use of force 20 military aircraft 17; confrontation 177n; enforcement measures 24; LOS Convention 19–20 Minzhu Jiao see Scarborough Reef Mischief Reef 6, 59, 61 missile tests in Taiwan Strait (1996) 107, 119, 202n monitoring of nationals and fishing vessels 98–9,160–1 Nansei Islands see Ryuku Islands Nansha Islands see Spratly Islands Natuna Islands 48, 121 natural resources 30, 63, 78; development of 35, 147; in the EEZ 34, 84, 86; in the high seas 50; in Taiwan Strait 113 negotiation for extension of the Agreement 166 North Korea 8, 35

Index

229

occupation 138; Eritrean 142; French 45, 67; Japanese 67 offshore: defence line 108; fishing activities 86; fishing grounds (Japanese) 78; installations as targets of piracy 126 oil and gas reserves 34; on the continental shelf of Vietnam 178n; development cooperation 118; exploration in the Gulf of Tonkin 63; in the South China Sea 126, 183n; in Taiwan Strait 107 oil and petroleum companies 61, 63 overflight 15, 17; abuse of freedom 20; conditions imposed 16; LOS Convention 13 Paracel Islands 30, 32, 43, 45–8; dispute 104; territorial sea 51 patrol vessels in the EEZ of other states 128 pelagic catch 78; spawning and wintering grounds 81 Penghu Islands 107 People’s Republic of China (PRC) 29, 38, 5578, 92, 108, 136; domestic law 33; territorial sea 57 Peter the Great Bay 140, 143–6; 209n; China’s support of Soviet claim 145; historic waters 68 Petro Ranger incident 121, 128 Philippine National Oil Company 61 Philippines 6–7, 35, 43,51, 57–8,60; archipelago 29, 121; claimed territories 59; EEZ 59; historic claims 150; protests 51; territorial waters 58–9; Vietnamese military and fishing vessels 167n piracy or armed robbery against ships 24,117, 128–9,202n; in the EEZ 123

Index

230

in internal waters/territorial sea 126; maritime terrorism 130; as a municipal crime 126; in ports or national waters 122 in the South China Sea 121,125–6; terrorist acts 122, 130–1,172n; unreported attacks 128 piracy legislation and suppression of 123, 126–8,130–1; extradition 125, 129, 131; foreign naval intervention 132; handover for trial 132; LOS Convention 122–6; patrols against 130; in the South China Sea 131–2; vessel arrest 123; vessel arrest within the EEZ 123 Piracy Reporting Centre of the International Maritime Bureau of the International Chamber of Commerce (IMB-PRC) 123; functions 130 political situation in the South China Sea 43 pollution 19, 35; from land-based sources 83; to the marine environment 26; in Taiwan Strait 118, 119; regulations for anti-pollution enforcement 118 potential environmental disaster 130 Pratas Islands 30, 32, 43,45 precautionary principle 82 prescription 60 presential sea 50, 178 Prince of Wales Bank 46 procedural measures for fishing entry 156, 194n Provisional Measures Zone (PMZ) 91, 100, 153, 194n; coordinates 89,154; fishery resources 89; flag state jurisdiction 90 Qiongzhou Strait 63, 112, 144, 146; permission to enter 113 reciprocal fishing rights 88–9 reciprocity 15, 88, 93, 152 Red River 95 Red Sea 142 regional maritime security strategies 131 regulations and measures adopted by coastal states of Taiwan Strait 119 Republic of China (ROC) 29,108, 148; baseline claim 56;

Index

231

historic waters 180n; prohibited/restricted water areas 30; Relations Statute 30; territorial sea law 30,37 rescue and refuge 98, 155, 157 right of hot pursuit 19, 21–2,36, 86,128; within the EEZ 128; Japanese 25; LOS Convention 21 Rome Convention 1988 122, 125–6,131 Rome Protocol 126 Ryukyu Islands 86, 89 sabotage: of navigation lanes 205n; of vessels 205n safety of navigation 117, 119–5,132, 164; sea lanes and security 203n; vessels and crews 121 salvage 98, 164, 173n, 211n; legislation 25; LOS Convention 26 Scarborough Reef 7, 32, 43, 55,59; fishing grounds 56; lagoon 55; lighthouse 58, 62, 184n; maritime zones and resources 61; overlapping claims 55–7,60; Sino-Philippines 57, 60–1; sovereignty 61 Sea of Japan 1, 43, 85; China’s historic rights in semi-enclosed seas 1, 43, 78, 82; LOS Convention 1, 43, 78 Senkaku Islands see Diaoyu Islands Shandong Peninsula 32 shared water area 90, 95, 100; China-Vietnam 63 shoals 55; LOS Convention 60 Singapore 128; National Shipping Association (SNSA) 121 Sino-French Treaty 63–7,69, 73, 185n Sino-Japanese Fishery Joint Committee 88, 89, 152–4,156; Fishery Agreements 84, 86, 91–4,146; LOS Convention 80–3; PMZ 90; relations 79–80;

Index

232

scientific research in fishery 87 Sino-Japanese Non-Governmental Fishery Agreement 78–9,114 Sino-Vietnamese Fishery Agreement 23, 71, 90, 100–1,102–4 Sino-Vietnamese: historic basis for bilateral cooperation 74; land boundary 43, 70, 198n; maritime boundary 66; negotiations 74; shared water area 144; territorial issues 74 smuggling 96, 116–7 South China Sea 1, 6, 13, 32, 43, 47–8,52,55–,89, 107–,107,, 126, 128, 147, 148, 153; coastal states 52; historic claim 150; legal literature 43; water areas 53–4 South China Sea islands 29, 50, 55 archipelagos 44, 46; environmental protection 130; names 180n; overlapping claims 129 South China Sea Policy Guidelines 147 South Korea 35, 86, 89, 116; protest 93 Southeast Asia see East Asia sovereign rights and jurisdiction 1, 67, 81, 112–5,136, 144, 146; Chinese 46–7,57; of the coastal state 35, 127; over disputed islands 142; over EEZ and continental shelf 29, 36; LOS Convention 30; of natural resources 19, 83; over seabed 141; Vietnamese 149 Soviet Union: Peter the Great Bay, historic claim 68, 140, 143–4; protest 110 Spratly Islands 32, 43, 45–8,50, 52, 121, 147; China’s claim 52–3,103, 129; continental shelf 51; dispute 43, 58, 104, 129; sovereignty over 52 spy airplane incident (US) 7–8, 13 spying over the EEZ 20 straight baselines 46, 52, 72, 111–2,113, 117; China 68; Japan 85; LOS Convention 83;

Index Paracels Islands 52 Straits of Malacca and Singapore 110 submerged banks and atolls 51, 52 Taiwan Chinese Petroleum Corporation 118 Taiwan Island 29–30,32; military administration 108; military prohibited zones 114, 200n; Special Administrative Region 29 Taiwan Strait 32, 37, 43, 107, 114; coastal provinces 108; control of navigation 110; cross-Strait relations 113–4,116, 118; history 108–9; legal status 107, 111, 112–3,115, 119; LOS Convention 32; petroleum exploration 118; shipping between ports 118; specific times of transit 200n; strategic significance 119; warships 178n Taiwan Strait fishing grounds 34, 107; conflict over resources 116–7; islands and reefs 107 territorial seas 1, 21, 30–2,56, 111; of China 46, 83, 89 113; delimitation 69, 139; expansion 118, 120, 128; of Japan 23; LOS Convention 38; rights beyond 141; Taiwan 38 Thailand 2, 75; Gulf of Thailand 176n; division 66 traditional fishing grounds 87, 92–3,95, 196n; Chinese 78; loss of 102; Philippines 57 traditional fishing rights 72; of Chinese 96; foreign 84; LOS Convention 101 transit passage 14, 17, 110–2,115–6,119–; LOS Convention 115 transitional arrangements 101; for fishing operations 162 Treaty of Peking 145

233

Index

234

Tunisia’s historic rights 140–2; unclear demarcation line 92, 103 UNCLOS III 31, 33,38, 110, 112, 115, 116, 138, 139, 143–,146 unidentified vessel 8, 20 United Kingdom protests 144 United Nations: Charter 23–4,61; Conference on Environment and Development (UNCED) 82: Conference on Trade and Development (UNCTAD) 126, 204n; Convention on the Law of the Sea see LOS Convention; Environment Program (UNEP) 9; International Law Commission (ILC) 137; peacekeeping force 19; Seabed Committee 51 United States 8, 18–9,109, 119, 126; navy 16; protest 18, 110, 113, 144, 180n use of force 23, 170n, 203n; lawful 24; LOS Convention 22; military 202n; use of force continued nuclear weapons 24; at sea 21–2; in self-defense 21, 24 use of oceans 13, 22–3,27; LOS Convention 13, 16, 61; military 17 U-shaped line in South China Sea 43–50, 53, 57, 147–8,149–50,176n, 179n, 210n; historic claim 52 Vanguard Bank 46; claims 51–2 Vienna Convention on the Law of Treaties 184 Vietnam 30, 35, 43–6, 63–5,70–1,74–5,121; affected by Chinese regulations 112; coast 46; foreign vessels in the EEZ 95; historic waters 72; internal water or territorial sea 72; protest lodged 47–8,52,95–; sovereignty 48; straight baselines 69; territorial claims 48; unification 48 Violence at Sea database 129 violence of crew members 171n

Index Xisha Islands see Paracel Islands Yangtze River 78 Yellow Sea 1, 6, 29, 43, 52, 78, 80–1,89 Zengmu Ansha see James Shoal Zhongsha Islands 46, 5560, 180n; Xisha Islands 89 Zhoushan Fishing Ground 78, 93

235