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Political geography in the Western Pacific after the adoption of the 1982 United Nations convention on the law of the sea
POLITICAL GEOGRAPHY QUARTERLY, Vol. 5, No. 1, January 1986, 25-32
Political geography in the Western Pacific after the adoption of the l!BZ United Nations Convention on the Law of the Sea HUNGDAH CHIU
School
ofLaw, University of Marykzrzd,Baltimore MD
21201, USA
ABSTRACT.The United Nations Convention on the Law of the Sea laid out certain guidelines for delimiting exclusive economic zones (EEZs) and continental shelf boundaries which could aid in resolving maritime boundary questions in the Western Pacific. However, many of these questions are closely related to territorial disputes, primarily over certain islands, which must be resolved before the boundaries themselves can be settled. The basic opposing principles debated at UNCLOS III were the equidistance or median line principle, and that of ‘equitable principles’ and ‘relevant circumstances’. The matter was never resolved and the Convention guidelines remain ambiguous. A case-by-case analysis of a number of contem~rary disputes reveals the importance of even these ambiguous provisions for the delimitation of uncertain boundaries. The disputes studied are those between Japan and South Korea; China and North Korea; China and South Korea; South and North Korea; China, Taiwan and Japan; Taiwan and the Philippines; China and Vietnam; and China, Taiwan, the Philippines, Vietnam and Malaysia. A possible interim solution to many of these disputes would be the establishment of maritime neutral zones in the disputed areas in which joint development of resources could take place in accordance with the 1982 invention.
All countries in the Western Pacific, with the exception of Japan and the Republic of China (ROC) on Taiwan, signed the United Nations Convention on the Law of the Sea on 10 December 1982. While Japan did not sign on that date, it did sign in early 1983. The ROC was unable to sign the Convention because of its exclusion from UNCLOS III at the insistence of the People’s Republic of China (PRC). While it is not clear whether these signatory countries will ratify the Convention, the fact that they were willing to sign indicates their general approval of it at that time. Thus, we may consider that the principles for delimiting maritime boundaries contained in the LOS Convention should be the guidelines for resolving maritime boundary questions in the Western Pacific. However, several maritime boundary questions in this region are closely related to territorial claims, primarily over certain islands, thus complicating the situation. The purpose of this paper is to provide a concise study of the maritime boundary delimitation questions in the Western Pacific. 0260-9827X%/01 0025-08 $03.00 Q 1986 Butterworth & Co (Publishers) Ltd
26
Po~~t~ca~ ~eo~a~~~ in the Western Pac$ic
At UNCLOS III, there were two different views on the question of delimitation. One group of countries favored drawing the line equidistant between the two shorelines in question, although many of those countries contended that ‘special circumstances’ might justify another method. Another group wished to emphasize ‘equitable principles’ and ‘relevant circumstances’. Because of the deadlock over the question, the President of the Conference, Tommy T. B. Koh of Singapore, submitted a new proposal in August 1981 which was finally accepted by the Conference and became Articles 74 and 83 of the LOS Convention. Article 74 provides: The delimitation of the exclusive economic zone between states with opposite or adjacent coasts shal1 be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.
Article 83 is the same as Article 74 except that ‘exclusive economic zone’ is replaced by ‘continental shelf’. However, because international law in this matter is not clear, these articles actually did not provide any meaningful guide for settling maritime boundary problems. Another problem for delimiting maritime boundaries is the presence of islands between adjacent or opposite countries. All countries in the Western Pacific have or claim certain islands which could be used to maximize their maritime claims. Therefore, none of them made any comments on Article 121 of the Convention, on the regime of islands. That article provides: 1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide. 2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory. 3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive zone or continental shelf. While the ROC did not participate in UNCLOS III, its reservation to Article 6 of the 1958 Convention on the Continental Shelf seems to support Article 121, paragraph 3 of the 1982 Convention. The ROC’s reservation states: [In] determining the boundary of the continental shelf of the Republic of China, exposed rocks and islets shall not be taken into account.’ The last question is the so-called ‘archipelagic state’ principle adopted in Part IV (Articles 46-54) of the Convention. The principle allows an ‘archipelagic state’ to draw a straight baseline joining the outermost points of the outermost islands and drying reefs of the archipelago. None of the countries in this area seems to oppose this principle. Despite its non-participation at UNCLOS III and its proximity to the archipelagic state of the Philippines, the ROC did not comment on this principle.
Case-by-case analysis of questions of delimitation Western Pacific
of maritime
boundaries in the
All countries in the Western Pacific, with the exception of the PRC and Republic of Korea (ROK), have declared 200-mile exclusive economic or fishing zones. In most cases, the distance between the coasts or islands of opposite countries in this area is less than 400
HUNGDAH CHILI
27
miles; thus, there are many overlapping claims of maritime boundaries in need of delimitation. The following is a concise analysis of the problems of delimitation which exist among the PRC, the ROC, the Democratic People’s Republic of Korea (DPRK), the ROK, Japan, Vietnam, the Philippines, and Malaysia.
Japan and the
ROK
Both Japan and the ROK favor the equidistance rule in delimiting the maritime boundary, so there should be no serious problem in delimitation between them. Japan has declared a 200-mile fishing zone; both countries are contesting the ownership of Tok Do, now occupied by the ROK, which may affect their maritime boundary in that area. Tok Do consists of two tiny islets in the Sea of Japan about 18 miles east of the ROK’s Ullung Do and about 3 1 miles northwest of the Japanese Dogo.* Tok Do is not habitable and under the LOS Convention, it should not have an economic zone or continental shelf. However, it may still claim a 12-mile territorial sea. On 30 January 1974 Japan and the ROK signed an agreement concerning the joint development of the continental shelf without defining each other’s continental shelf claim, and also froze the surface boundary issue.
The PRC and the DPRK On 1 July 1977, the DPRK declared a 200-mile economic zone, but did not define its exact limit vis-h-v& the PRC, which has not yet declared a 200-mile economic zone in the northern part of the Yellow Sea area, and there has been no report on how the two countries may resolve their maritime boundary question here.3 It should be noted that, in any future delimitation, the presence of Haiyang Island of the PRC, which is about 43.4 miles off the Liaodong Peninsula, would give the PRC su~tanti~ly more continental shelf or economic zone uis-his the DPRK, if islands can be given full effect in delimitation and if the equidistance rule is applied.
T/x PRC and the ROK In any future deliiitation, the presence of Sass&an Island, about 62 miles off the southwest coast of the Korean peninsula, would give the ROK substantial advantage in delimitation of the maritime boundary vis-C-visthe PRC if the islands could be given full effect in delimitation and if the equidistance rule is used. The PRC does not recognize the ROK and has so far maintained limited official contact with it. It did protest the ROK-Japan agreement on joint exploration of the continental shelf in the Yellow Sea, but did not articulate how far its continental shelf claim would go and how the issue would be resolved without making contact with the ROK.
T,!w ROK and the DPkK The issue of delimitation here is primarily a political one. While there are some contacts between the DPRK and the ROK, it is not clear whether the DPRK would be willing to discuss maritime boundaries with the ROK since it might be regarded as de facto recognition of the legitimacy of the ROK. In this connection, the ROK’s policy seems more flexible. The ROK has not indicated unwi~ingne~ to discuss an issue with important political implications with the DPRK.4
28
Political geography in the Western Pacific
The PRC, the ROC and Japan
The continental shelf in the East China Sea is the natural prolongation of the land territory of the Chinese mainland and Taiwan and not that of Japan, so if the natural prolongation principle is used here in delimitation, almost all of the shelf would go to China. However, in the concept of economic zone, there is no natural prolongation element involved, so Japan certainly would prefer to base its maritime claim here on the economic zone rather than on the continental shelf. It is also clear that equidistance, whether it is used for the continental shelf or the economic zone, would be beneficial to Japan, since only under that rule can Japan claim the continental shelf extended naturally from the Chinese mainland and Taiwan in the East China Sea. This may be the reason why the PRC has not yet declared a 200.mile economic zone; it might undercut its continental shelf claim in the East China Sea. The situation of the ROC on Taiwan is somewhat different. There is almost no shelf off the eastern part of Taiwan, so its declaration of a 200-mile economic zone would not pose the problem of undercutting its maritime claim. Another troublesome problem in delimiting maritime boundaries here is the presence of the Diaoyutai Islets (in Chinese) or Senkaku Gunto (in Japanese), contested by China and Japan. 5 Both the PRC and the ROC consider the islets to be Chinese and under the administrative jurisdiction of Taiwan Province. The Diaoyutai Islets consist of five uninhabited islets and three rocks in the East China Sea northeast of Taiwan. Diaoyu, the largest of the group, is about 1.67 square miles. They are all situated at the edge of the southeast part of the East China Sea continental shelf extending from mainland China and Taiwan; they are separated from the continental shelf of Japan and the Ryukyu Islands by the Okinawa Trough, which is more than 3280 feet in depth. The largest of the islets, Diaoyu, seems large enough to be able to claim a continental shelf or economic zone under Article 121 of the 1982 LOS Convention. If this is the case, then the ownership of these islets becomes very important in delimiting maritime boundaries in this area. Japan’s ownership of these islets would provide it with a base to claim a continental shelf or economic zone to the disadvantage of China. On the other hand, the ROC on Taiwan could use these islets to extend its economic zone vis-&is Japan’s Ryukyu Islands. The ROC and the Philippines (Bashi Channel)
The maritime boundary between the southern part of Taiwan and the northern part of the Philippine island of Luzon has been in dispute between the ROC and the Philippines in recent years (see Figure 1). This is the result of the Philippines’ claim of an extensive limit of territorial sea based on the 1898 US-Spanish Peace Treaty. Article 3 of the Treaty provides: Spain cedes to the United States the archipelago known as the Philippine Islands, and comprehending the islands lying within the following line: line running from west to east along or near the twentieth parallel of north latitude, and through the middle of the navigable channel of Bashi, from the one hundred and eighteenth (118th) to the one hundred and twenty-seventh (127th) degree meridian of longitude east of Greenwich .’ Such an extensive territorial sea claim does not have any support in the LOS Convention. In view of this, it is reasonable to assume that it cannot constitute a justified legal basis for delimiting the maritime boundary between it and the ROC. On the other hand, the Philippines definitely could invoke the ‘archipelagic state’ principles in delimiting its northern maritime boundary vis-h-vis the ROC. So far, the ROC
29
HUNGDAH CHIU
-~
. .-
1
REPUBLIC OF CHINA
‘EOPLE’S REPUBLIC OF CHINA
BASHI CHANNEL
Territorial sea limit pratzFi 7-h Phi&r-+
;Y,Ami
LUzON,STRAfT
I
2,0_
beatan lolands
6
l ci_L
. . ..__
1_1___)_
I
SOUTH C~jNA SEA F-9 Luzon island . Paracel Islands 0,
!bc&sfield 1150
Bank
I 7 THE PHILIPPINES 120°
125O
FIGURE1. The Philippines’ maritime boundary with the Republic of China in the South China Sea.
has been silent on this principle. However, in view of its close commercial relations with the Philippines and Indonesia-two major archipelagic states-it is unlikely that the ROC would oppose the archipelagic principle. If this is the case, then the Philippines could rely on a more favorable baseline under this principle as the basis for delimitation. On the other hand, it seems that the ROC could invoke Article 5 1, paragraph 1 of the 1982 Convention, which preserves ‘traditional fishing rights and other legitimate activities of the immediate adjacent neighboring states in certain areas falling within archipelagic waters’, to protect its fishing rights, since the distance between the southern part of Taiwan and the northernmost islands claimed by the Philippines is less than 62 miles.’
The PRC and V~et~rn-G~~~~ Vietnamese)
Tonkin (Beibu Wan in Chinese or Vi& &c Bo in
In August 1974, at the PRC-Vietnamese negotiation on the boundary question, Vietnam asserted that the 1887 Convention on the Delimitation of the Frontier between China and Tonkin made 108’ 3 ’ 13 “E the ‘sea boundary line’ between the two countries in the Gulf of Tonkin. Vietnam also argued that for the last century all governments of the two countries had ‘exercised sovereignty and jurisdiction’ according to this line and that the Gulf of Tonkin was an ‘historic gulf’ belonging to China and Vietnam and divided by longitude 108’ 3 ’ 13 “E. If this line is used to mark the maritime boundary in the Gulf of Tonkin, then two-thirds of the Gulf will belong to Vietnam (see Fieplre 2). Al~ough the PRC has not announced any criterion for division of the Gulf’s continental shelf, it did propose that a rectangular area in the center of the Tonkin Gulf (18 * to 20”N and 107 ’ to 108 o E) be excluded from exploration by both sides until an agreement on the maritime boundary is sett1ed.s
30
Political geography in the Western Pacific 107O
108O
109O
110°
21'
18c
18O
l(
FIGURE 2. Vietnam’s the Gulf of Tonkin.
maritime boundary with the People’s Republic of China in
The PRC, the ROC, the Philippines, Vietnam and Malaysia-maritime
boundary
question in the South China Sea
The PRC, the ROC and Vietnam have made territorial claims on the Paracel Islands and the Spratly Islands. The Philippines have also claimed some islets among the Spratly Islands in the South China Sea. The territorial claims complicate the delimitation of maritime boundaries here. Moreover, both the PRC and the ROC claim submerged shoals and a submerged bank in these areas. The PRC also claims the underwater Central Sand Islands and Macclesfield Bank southeast of the Paracel Islands. These claims can hardly be justified under the LOS Convention. The Paracel Islands were originally occupied by the Republic of Vietnam (South), but the PRC drove the South Vietnamese out in January 1974. After unification, Vietnam claimed these islands but was repeatedly denounced by the PRC. Some islands in the Paracel chain are settled by nationals from the PRC and they are large enough to claim an economic zone. The uninhabited islets may at least claim a territorial sea under Article 12 1 of the LOS Convention. Moreover, the distance between most islets is less than 24 nautical miles, so the PRC could draw a straight baseline to claim a more extensive territorial sea or an economic zone. However, the PRC has not yet defined its territorial sea baseline here. As
HUNGDAH CHIU
31
Vietnam has declared a ZOO-mile economic zone, without specifying its exact limit, and the PRC has not, it is not clear where the maritime boundary should be between the Paracel Islands and the nearest Vietnamese coast where the distance between them is less than 200 nautical miles. In the eastern part of the South China Sea, both the PRC and the ROC claim the uninhabited Scarborough Shoal (Nanyen Rock on the ROC map and Huangyan Island on the PRC map), located at approximately 117 a 50 ’ E, 15 ON, within the 200-mile economic zone proclaimed by the Philippines. Ironically, under Article 121 of the 1982 LOS Convention, this above-water shoal can still have its own territorial sea, but not an economic zone or a continental shelf. The Spratly Islands situation is more complicated. Vietnam has occupied most of the islets, including the Storm Island (also called Spratly Island or Nanwei Dao in Chinese). The ROC has occupied Itu Aba Island (Taiping Dao), the largest one in this group, though only 0.17 square miles. In 1971, the Philippines announced that 53 islets in the Spratlys belonged to the Philippines, including the ROC-occupied Itu Aba, and Philippine troops have occupied Thi Tu (Zhongye) Island in the northeast part of the Spratly Islands since then. While the ROC, the Philippines and Vietnam all proclaimed 200-mile economic zones, none of them has specified the exact extent of its maritime boundary here, so there is no way to evaluate their respective positions under the 1982 LOS Convention and customary rules of international law. Recently, it was reported that Malaysian officials found that Vietnam has occupied Amboyna Cay (Pulau Kecil Amboya in Malaysian) about 200 miles off the west coast of the east Malaysian state of Sabah.9 The Vietnamese were reported to have set up an observation post there. The islet is about 400 miles off the Vietnamese coast, but is about 100 miles southeast of Vietnamese-occupied Spratly Island. The Vietnamese territorial claim here concerns Malaysia and Indonesia and certainly would also complicate the issue of delimitation of maritime boundaries in this area.
Conclusion On the question of delimiting maritime boundaries in the Western Pacific, the 1982 LOS Convention does provide some useful rules and principles which may be applied in negotiating reasonable solutions. This is especially true with respect to rules pertaining to the regimes of the territorial sea, islands and archipelagic states. Without these specific provisions, countries in these areas may engage in endless arguments over applicable rules. However, because many maritime boundaries in this area are closely connected with territorial claims, the delimitation problem cannot be resolved under the Convention until the countries concerned settle their territorial disputes first. One possible interim solution is to declare an area of overlapping maritime claims based on a disputed territory as a neutral zone pending the final settlement of the territorial dispute there. Within the neutral zone, nationals of both countries could explore the natural resources, subject to conservation measures to be jointly taken by the two countries in accordance with the United Nations Convention on the Law of the Sea.
Notes 1. International Legal Materials 10 (1971), 452. 2. See: Taijudo (1968), The dispute between Japan and Korea respecting sovereignty over Takeshima (Tok Do), The Japanese Annual of International LLZW12, 1-17.
Political geography
32
in the Western Pacific
3. For a brief discussion of this question see: Choonho Park (1979) Ch’ma and maritime jurisdiction: some boundary issues, German Yearbook ofInternational Low 22, 136-l 37. 4. See Se Jin Kim’s comment on Nam-Year1 Chi: Se Jin Kim (1981), Divided nations and international law: the case of the two Koreas, in Hungdah Chiu and Robert Downen (eds). Multi-system Nations and International Law: The InternationalStatus o/Germany, Korea and China (Baltimore: University of Maryland Law School), Occasional Papers/Reprints Series in Contemporary Asian Studies, No. 8(45), 139-140. 5. For an analysis of this issue, see: Tao Cheng (1974), The Sino-Japanese dispute over the Tiao-yu-tai (Senkaku) Islands and the Law of Territorial Acquisition, VirginiuJownul oflnternutionullaw 14,221-266; and Hungdah Chiu (1985), Island disputes in the Far East, Encyclopedia of Public Internotional Law 6, 6.
233-236. 30 Stat. 1754;
TS 343: 11 Bevans 615. 7. However, this provision does not refer to an ‘opposite state’, so it is possible for the Philippines toexclude the application of this provision to the ROC on the ground it is not an ‘adjacent state’. The official records of the Conference do not explain the term ‘adjacent’. 8. For a summary of this issue, see: K. Woodard and A. A. Davenport (1982) The security dimension of China’s offshore oil development, Journal of Northeast Asian Studies l(3), 6-8. 9. F. A. Moritz (1982) Vietnam’s claim to islands keeps neighbors wary, The Chrtian Science Monitor. 29 February.
Political geography in the Western Pacific after the adoption of the l!BZ United Nations Convention on the Law of the Sea HUNGDAH CHIU
School
ofLaw, University of Marykzrzd,Baltimore MD
21201, USA
ABSTRACT.The United Nations Convention on the Law of the Sea laid out certain guidelines for delimiting exclusive economic zones (EEZs) and continental shelf boundaries which could aid in resolving maritime boundary questions in the Western Pacific. However, many of these questions are closely related to territorial disputes, primarily over certain islands, which must be resolved before the boundaries themselves can be settled. The basic opposing principles debated at UNCLOS III were the equidistance or median line principle, and that of ‘equitable principles’ and ‘relevant circumstances’. The matter was never resolved and the Convention guidelines remain ambiguous. A case-by-case analysis of a number of contem~rary disputes reveals the importance of even these ambiguous provisions for the delimitation of uncertain boundaries. The disputes studied are those between Japan and South Korea; China and North Korea; China and South Korea; South and North Korea; China, Taiwan and Japan; Taiwan and the Philippines; China and Vietnam; and China, Taiwan, the Philippines, Vietnam and Malaysia. A possible interim solution to many of these disputes would be the establishment of maritime neutral zones in the disputed areas in which joint development of resources could take place in accordance with the 1982 invention.
All countries in the Western Pacific, with the exception of Japan and the Republic of China (ROC) on Taiwan, signed the United Nations Convention on the Law of the Sea on 10 December 1982. While Japan did not sign on that date, it did sign in early 1983. The ROC was unable to sign the Convention because of its exclusion from UNCLOS III at the insistence of the People’s Republic of China (PRC). While it is not clear whether these signatory countries will ratify the Convention, the fact that they were willing to sign indicates their general approval of it at that time. Thus, we may consider that the principles for delimiting maritime boundaries contained in the LOS Convention should be the guidelines for resolving maritime boundary questions in the Western Pacific. However, several maritime boundary questions in this region are closely related to territorial claims, primarily over certain islands, thus complicating the situation. The purpose of this paper is to provide a concise study of the maritime boundary delimitation questions in the Western Pacific. 0260-9827X%/01 0025-08 $03.00 Q 1986 Butterworth & Co (Publishers) Ltd
26
Po~~t~ca~ ~eo~a~~~ in the Western Pac$ic
At UNCLOS III, there were two different views on the question of delimitation. One group of countries favored drawing the line equidistant between the two shorelines in question, although many of those countries contended that ‘special circumstances’ might justify another method. Another group wished to emphasize ‘equitable principles’ and ‘relevant circumstances’. Because of the deadlock over the question, the President of the Conference, Tommy T. B. Koh of Singapore, submitted a new proposal in August 1981 which was finally accepted by the Conference and became Articles 74 and 83 of the LOS Convention. Article 74 provides: The delimitation of the exclusive economic zone between states with opposite or adjacent coasts shal1 be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.
Article 83 is the same as Article 74 except that ‘exclusive economic zone’ is replaced by ‘continental shelf’. However, because international law in this matter is not clear, these articles actually did not provide any meaningful guide for settling maritime boundary problems. Another problem for delimiting maritime boundaries is the presence of islands between adjacent or opposite countries. All countries in the Western Pacific have or claim certain islands which could be used to maximize their maritime claims. Therefore, none of them made any comments on Article 121 of the Convention, on the regime of islands. That article provides: 1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide. 2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory. 3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive zone or continental shelf. While the ROC did not participate in UNCLOS III, its reservation to Article 6 of the 1958 Convention on the Continental Shelf seems to support Article 121, paragraph 3 of the 1982 Convention. The ROC’s reservation states: [In] determining the boundary of the continental shelf of the Republic of China, exposed rocks and islets shall not be taken into account.’ The last question is the so-called ‘archipelagic state’ principle adopted in Part IV (Articles 46-54) of the Convention. The principle allows an ‘archipelagic state’ to draw a straight baseline joining the outermost points of the outermost islands and drying reefs of the archipelago. None of the countries in this area seems to oppose this principle. Despite its non-participation at UNCLOS III and its proximity to the archipelagic state of the Philippines, the ROC did not comment on this principle.
Case-by-case analysis of questions of delimitation Western Pacific
of maritime
boundaries in the
All countries in the Western Pacific, with the exception of the PRC and Republic of Korea (ROK), have declared 200-mile exclusive economic or fishing zones. In most cases, the distance between the coasts or islands of opposite countries in this area is less than 400
HUNGDAH CHILI
27
miles; thus, there are many overlapping claims of maritime boundaries in need of delimitation. The following is a concise analysis of the problems of delimitation which exist among the PRC, the ROC, the Democratic People’s Republic of Korea (DPRK), the ROK, Japan, Vietnam, the Philippines, and Malaysia.
Japan and the
ROK
Both Japan and the ROK favor the equidistance rule in delimiting the maritime boundary, so there should be no serious problem in delimitation between them. Japan has declared a 200-mile fishing zone; both countries are contesting the ownership of Tok Do, now occupied by the ROK, which may affect their maritime boundary in that area. Tok Do consists of two tiny islets in the Sea of Japan about 18 miles east of the ROK’s Ullung Do and about 3 1 miles northwest of the Japanese Dogo.* Tok Do is not habitable and under the LOS Convention, it should not have an economic zone or continental shelf. However, it may still claim a 12-mile territorial sea. On 30 January 1974 Japan and the ROK signed an agreement concerning the joint development of the continental shelf without defining each other’s continental shelf claim, and also froze the surface boundary issue.
The PRC and the DPRK On 1 July 1977, the DPRK declared a 200-mile economic zone, but did not define its exact limit vis-h-v& the PRC, which has not yet declared a 200-mile economic zone in the northern part of the Yellow Sea area, and there has been no report on how the two countries may resolve their maritime boundary question here.3 It should be noted that, in any future delimitation, the presence of Haiyang Island of the PRC, which is about 43.4 miles off the Liaodong Peninsula, would give the PRC su~tanti~ly more continental shelf or economic zone uis-his the DPRK, if islands can be given full effect in delimitation and if the equidistance rule is applied.
T/x PRC and the ROK In any future deliiitation, the presence of Sass&an Island, about 62 miles off the southwest coast of the Korean peninsula, would give the ROK substantial advantage in delimitation of the maritime boundary vis-C-visthe PRC if the islands could be given full effect in delimitation and if the equidistance rule is used. The PRC does not recognize the ROK and has so far maintained limited official contact with it. It did protest the ROK-Japan agreement on joint exploration of the continental shelf in the Yellow Sea, but did not articulate how far its continental shelf claim would go and how the issue would be resolved without making contact with the ROK.
T,!w ROK and the DPkK The issue of delimitation here is primarily a political one. While there are some contacts between the DPRK and the ROK, it is not clear whether the DPRK would be willing to discuss maritime boundaries with the ROK since it might be regarded as de facto recognition of the legitimacy of the ROK. In this connection, the ROK’s policy seems more flexible. The ROK has not indicated unwi~ingne~ to discuss an issue with important political implications with the DPRK.4
28
Political geography in the Western Pacific
The PRC, the ROC and Japan
The continental shelf in the East China Sea is the natural prolongation of the land territory of the Chinese mainland and Taiwan and not that of Japan, so if the natural prolongation principle is used here in delimitation, almost all of the shelf would go to China. However, in the concept of economic zone, there is no natural prolongation element involved, so Japan certainly would prefer to base its maritime claim here on the economic zone rather than on the continental shelf. It is also clear that equidistance, whether it is used for the continental shelf or the economic zone, would be beneficial to Japan, since only under that rule can Japan claim the continental shelf extended naturally from the Chinese mainland and Taiwan in the East China Sea. This may be the reason why the PRC has not yet declared a 200.mile economic zone; it might undercut its continental shelf claim in the East China Sea. The situation of the ROC on Taiwan is somewhat different. There is almost no shelf off the eastern part of Taiwan, so its declaration of a 200-mile economic zone would not pose the problem of undercutting its maritime claim. Another troublesome problem in delimiting maritime boundaries here is the presence of the Diaoyutai Islets (in Chinese) or Senkaku Gunto (in Japanese), contested by China and Japan. 5 Both the PRC and the ROC consider the islets to be Chinese and under the administrative jurisdiction of Taiwan Province. The Diaoyutai Islets consist of five uninhabited islets and three rocks in the East China Sea northeast of Taiwan. Diaoyu, the largest of the group, is about 1.67 square miles. They are all situated at the edge of the southeast part of the East China Sea continental shelf extending from mainland China and Taiwan; they are separated from the continental shelf of Japan and the Ryukyu Islands by the Okinawa Trough, which is more than 3280 feet in depth. The largest of the islets, Diaoyu, seems large enough to be able to claim a continental shelf or economic zone under Article 121 of the 1982 LOS Convention. If this is the case, then the ownership of these islets becomes very important in delimiting maritime boundaries in this area. Japan’s ownership of these islets would provide it with a base to claim a continental shelf or economic zone to the disadvantage of China. On the other hand, the ROC on Taiwan could use these islets to extend its economic zone vis-&is Japan’s Ryukyu Islands. The ROC and the Philippines (Bashi Channel)
The maritime boundary between the southern part of Taiwan and the northern part of the Philippine island of Luzon has been in dispute between the ROC and the Philippines in recent years (see Figure 1). This is the result of the Philippines’ claim of an extensive limit of territorial sea based on the 1898 US-Spanish Peace Treaty. Article 3 of the Treaty provides: Spain cedes to the United States the archipelago known as the Philippine Islands, and comprehending the islands lying within the following line: line running from west to east along or near the twentieth parallel of north latitude, and through the middle of the navigable channel of Bashi, from the one hundred and eighteenth (118th) to the one hundred and twenty-seventh (127th) degree meridian of longitude east of Greenwich .’ Such an extensive territorial sea claim does not have any support in the LOS Convention. In view of this, it is reasonable to assume that it cannot constitute a justified legal basis for delimiting the maritime boundary between it and the ROC. On the other hand, the Philippines definitely could invoke the ‘archipelagic state’ principles in delimiting its northern maritime boundary vis-h-vis the ROC. So far, the ROC
29
HUNGDAH CHIU
-~
. .-
1
REPUBLIC OF CHINA
‘EOPLE’S REPUBLIC OF CHINA
BASHI CHANNEL
Territorial sea limit pratzFi 7-h Phi&r-+
;Y,Ami
LUzON,STRAfT
I
2,0_
beatan lolands
6
l ci_L
. . ..__
1_1___)_
I
SOUTH C~jNA SEA F-9 Luzon island . Paracel Islands 0,
!bc&sfield 1150
Bank
I 7 THE PHILIPPINES 120°
125O
FIGURE1. The Philippines’ maritime boundary with the Republic of China in the South China Sea.
has been silent on this principle. However, in view of its close commercial relations with the Philippines and Indonesia-two major archipelagic states-it is unlikely that the ROC would oppose the archipelagic principle. If this is the case, then the Philippines could rely on a more favorable baseline under this principle as the basis for delimitation. On the other hand, it seems that the ROC could invoke Article 5 1, paragraph 1 of the 1982 Convention, which preserves ‘traditional fishing rights and other legitimate activities of the immediate adjacent neighboring states in certain areas falling within archipelagic waters’, to protect its fishing rights, since the distance between the southern part of Taiwan and the northernmost islands claimed by the Philippines is less than 62 miles.’
The PRC and V~et~rn-G~~~~ Vietnamese)
Tonkin (Beibu Wan in Chinese or Vi& &c Bo in
In August 1974, at the PRC-Vietnamese negotiation on the boundary question, Vietnam asserted that the 1887 Convention on the Delimitation of the Frontier between China and Tonkin made 108’ 3 ’ 13 “E the ‘sea boundary line’ between the two countries in the Gulf of Tonkin. Vietnam also argued that for the last century all governments of the two countries had ‘exercised sovereignty and jurisdiction’ according to this line and that the Gulf of Tonkin was an ‘historic gulf’ belonging to China and Vietnam and divided by longitude 108’ 3 ’ 13 “E. If this line is used to mark the maritime boundary in the Gulf of Tonkin, then two-thirds of the Gulf will belong to Vietnam (see Fieplre 2). Al~ough the PRC has not announced any criterion for division of the Gulf’s continental shelf, it did propose that a rectangular area in the center of the Tonkin Gulf (18 * to 20”N and 107 ’ to 108 o E) be excluded from exploration by both sides until an agreement on the maritime boundary is sett1ed.s
30
Political geography in the Western Pacific 107O
108O
109O
110°
21'
18c
18O
l(
FIGURE 2. Vietnam’s the Gulf of Tonkin.
maritime boundary with the People’s Republic of China in
The PRC, the ROC, the Philippines, Vietnam and Malaysia-maritime
boundary
question in the South China Sea
The PRC, the ROC and Vietnam have made territorial claims on the Paracel Islands and the Spratly Islands. The Philippines have also claimed some islets among the Spratly Islands in the South China Sea. The territorial claims complicate the delimitation of maritime boundaries here. Moreover, both the PRC and the ROC claim submerged shoals and a submerged bank in these areas. The PRC also claims the underwater Central Sand Islands and Macclesfield Bank southeast of the Paracel Islands. These claims can hardly be justified under the LOS Convention. The Paracel Islands were originally occupied by the Republic of Vietnam (South), but the PRC drove the South Vietnamese out in January 1974. After unification, Vietnam claimed these islands but was repeatedly denounced by the PRC. Some islands in the Paracel chain are settled by nationals from the PRC and they are large enough to claim an economic zone. The uninhabited islets may at least claim a territorial sea under Article 12 1 of the LOS Convention. Moreover, the distance between most islets is less than 24 nautical miles, so the PRC could draw a straight baseline to claim a more extensive territorial sea or an economic zone. However, the PRC has not yet defined its territorial sea baseline here. As
HUNGDAH CHIU
31
Vietnam has declared a ZOO-mile economic zone, without specifying its exact limit, and the PRC has not, it is not clear where the maritime boundary should be between the Paracel Islands and the nearest Vietnamese coast where the distance between them is less than 200 nautical miles. In the eastern part of the South China Sea, both the PRC and the ROC claim the uninhabited Scarborough Shoal (Nanyen Rock on the ROC map and Huangyan Island on the PRC map), located at approximately 117 a 50 ’ E, 15 ON, within the 200-mile economic zone proclaimed by the Philippines. Ironically, under Article 121 of the 1982 LOS Convention, this above-water shoal can still have its own territorial sea, but not an economic zone or a continental shelf. The Spratly Islands situation is more complicated. Vietnam has occupied most of the islets, including the Storm Island (also called Spratly Island or Nanwei Dao in Chinese). The ROC has occupied Itu Aba Island (Taiping Dao), the largest one in this group, though only 0.17 square miles. In 1971, the Philippines announced that 53 islets in the Spratlys belonged to the Philippines, including the ROC-occupied Itu Aba, and Philippine troops have occupied Thi Tu (Zhongye) Island in the northeast part of the Spratly Islands since then. While the ROC, the Philippines and Vietnam all proclaimed 200-mile economic zones, none of them has specified the exact extent of its maritime boundary here, so there is no way to evaluate their respective positions under the 1982 LOS Convention and customary rules of international law. Recently, it was reported that Malaysian officials found that Vietnam has occupied Amboyna Cay (Pulau Kecil Amboya in Malaysian) about 200 miles off the west coast of the east Malaysian state of Sabah.9 The Vietnamese were reported to have set up an observation post there. The islet is about 400 miles off the Vietnamese coast, but is about 100 miles southeast of Vietnamese-occupied Spratly Island. The Vietnamese territorial claim here concerns Malaysia and Indonesia and certainly would also complicate the issue of delimitation of maritime boundaries in this area.
Conclusion On the question of delimiting maritime boundaries in the Western Pacific, the 1982 LOS Convention does provide some useful rules and principles which may be applied in negotiating reasonable solutions. This is especially true with respect to rules pertaining to the regimes of the territorial sea, islands and archipelagic states. Without these specific provisions, countries in these areas may engage in endless arguments over applicable rules. However, because many maritime boundaries in this area are closely connected with territorial claims, the delimitation problem cannot be resolved under the Convention until the countries concerned settle their territorial disputes first. One possible interim solution is to declare an area of overlapping maritime claims based on a disputed territory as a neutral zone pending the final settlement of the territorial dispute there. Within the neutral zone, nationals of both countries could explore the natural resources, subject to conservation measures to be jointly taken by the two countries in accordance with the United Nations Convention on the Law of the Sea.
Notes 1. International Legal Materials 10 (1971), 452. 2. See: Taijudo (1968), The dispute between Japan and Korea respecting sovereignty over Takeshima (Tok Do), The Japanese Annual of International LLZW12, 1-17.
Political geography
32
in the Western Pacific
3. For a brief discussion of this question see: Choonho Park (1979) Ch’ma and maritime jurisdiction: some boundary issues, German Yearbook ofInternational Low 22, 136-l 37. 4. See Se Jin Kim’s comment on Nam-Year1 Chi: Se Jin Kim (1981), Divided nations and international law: the case of the two Koreas, in Hungdah Chiu and Robert Downen (eds). Multi-system Nations and International Law: The InternationalStatus o/Germany, Korea and China (Baltimore: University of Maryland Law School), Occasional Papers/Reprints Series in Contemporary Asian Studies, No. 8(45), 139-140. 5. For an analysis of this issue, see: Tao Cheng (1974), The Sino-Japanese dispute over the Tiao-yu-tai (Senkaku) Islands and the Law of Territorial Acquisition, VirginiuJownul oflnternutionullaw 14,221-266; and Hungdah Chiu (1985), Island disputes in the Far East, Encyclopedia of Public Internotional Law 6, 6.
233-236. 30 Stat. 1754;
TS 343: 11 Bevans 615. 7. However, this provision does not refer to an ‘opposite state’, so it is possible for the Philippines toexclude the application of this provision to the ROC on the ground it is not an ‘adjacent state’. The official records of the Conference do not explain the term ‘adjacent’. 8. For a summary of this issue, see: K. Woodard and A. A. Davenport (1982) The security dimension of China’s offshore oil development, Journal of Northeast Asian Studies l(3), 6-8. 9. F. A. Moritz (1982) Vietnam’s claim to islands keeps neighbors wary, The Chrtian Science Monitor. 29 February.