Implementation of the United Nations Convention on the Law of the Sea: State Practice of China and Japan (Kobe University Monograph Series in Social Science Research) 9813369531, 9789813369535

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Kobe University Monograph Series in Social Science Research

Dai Tamada Keyuan Zou   Editors

Implementation of the United Nations Convention on the Law of the Sea State Practice of China and Japan

Kobe University Monograph Series in Social Science Research Series Editor Takashi Yanagawa, Professor, Kobe University Graduate School of Economics, Kobe, Japan Editorial Board Masahiro Enomoto, Kobe University RIEB, Kobe, Japan Kenji Yamamoto, Kobe University Graduate School of Law, Kobe, Japan Yoshihide Fujioka, Kobe University Graduate School of Economics, Kobe, Japan Nobuhiro Sanko, Kobe University Graduate School of Business Administration, Kobe, Japan Yuka Kaneko, Kobe University Graduate School of International Cooperation Studies, Kobe, Japan

The Kobe University Monograph Series in Social Science Research is an exciting interdisciplinary collection of monographs, both authored and edited, that encompass scholarly research not only in the economics but also in law, political science, business and management, accounting, international relations, and other sub-disciplines within the social sciences. As a national university with a special strength in the social sciences, Kobe University actively promotes interdisciplinary research. This series is not limited only to research emerging from Kobe University’s faculties of social sciences but also welcomes cross-disciplinary research that integrates studies in the arts and sciences. Kobe University, founded in 1902, is the second oldest national higher education institution for commerce in Japan and is now a preeminent institution for social science research and education in the country. Currently, the social sciences section includes four faculties—Law, Economics, Business Administration, and International Cooperation Studies—and the Research Institute for Economics and Business Administration (RIEB). There are some 230-plus researchers who belong to these faculties and conduct joint research through the Center for Social Systems Innovation and the Organization for Advanced and Integrated Research, Kobe University. This book series comprises academic works by researchers in the social sciences at Kobe University as well as their collaborators at affiliated institutions, Kobe University alumni and their colleagues, and renowned scholars from around the world who have worked with academic staff at Kobe University. Although traditionally the research of Japanese scholars has been publicized mainly in the Japanese language, Kobe University strives to promote publication and dissemination of works in English in order to further contribute to the global academic community.

More information about this series at http://www.springer.com/series/16115

Dai Tamada Keyuan Zou •

Editors

Implementation of the United Nations Convention on the Law of the Sea State Practice of China and Japan

123

Editors Dai Tamada Graduate School of Law Kobe University Kobe, Hyogo, Japan

Keyuan Zou School of Justice University of Central Lancashire Preston, Lancashire, UK

ISSN 2524-504X ISSN 2524-5058 (electronic) Kobe University Monograph Series in Social Science Research ISBN 978-981-33-6953-5 ISBN 978-981-33-6954-2 (eBook) https://doi.org/10.1007/978-981-33-6954-2 © Kobe University 2021 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Singapore Pte Ltd. The registered company address is: 152 Beach Road, #21-01/04 Gateway East, Singapore 189721, Singapore

Preface

China, Japan, and Law of the Sea The law of the sea has been one of the most important branches of international law and applicable to both China and Japan as the two countries are parties to the 1982 UN Convention on the Law of the Sea (UNCLOS), which is regarded as the constitution for the oceans. It is undeniable, however, that the sea itself has not only produced the wealth to the surrounding countries, but it has also provoked a wide range of legal issues arising from, for example, navigation, passage, fisheries, natural resources, common interests, maritime boundaries, jurisdiction, marine environment, among others. In other words, the law of the sea inevitably covers a huge amount of legal issues and it is here where the international lawyers are required to cooperate to analyse such a wide area of international law. Historically speaking, Japan has long been a maritime nation, surrounded by the sea, and this geographical typicality urged it to plunge into the study and research on the law of the sea. This fact explains the reason why many of the disputes, in which Japan was a party, related to the sea. On the other hand, China has long been a continental country, mainly surrounded by the land. Considering the long coast of China, however, this characterisation seems stereotype and old-fashioned. It is necessary to elucidate China’s new tendency to expand its maritime claims, jurisdiction, and interests towards the sea, which also provoke a lot of issues and disputes with neighbouring countries. Against this background, international lawyers from both countries have conducted an academic collaboration for examining and analysing some of the issues mentioned above.

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Structure and Contents This book is composed of six parts, each of which has two authors, one Chinese and one Japanese. Six parts are as follows: Part I: Historical Aspects, Part II: Implementation, Part III: Navigation, Part IV: Mid-Ocean Archipelagos, Part V: Marine Environment, and Part VI: Dispute Settlement. In some parts, two authors did have a short discussion on the topic quite fortunately, while in many other parts, however, there had been no interaction between Chinese and Japanese authors before. Notwithstanding this, it seems still worthy of arranging two authors in each part with a common topic, because it enabled us to limit the scope of discussion between the designated authors. We hope that this kind of corroborative work contributes to the development of academic discussion, which should be sincerely adversarial and opened to criticism each other. Part I (Chaps. 1 and 2) is devoted to the analysis of historical aspects of the law of the sea, from Chinese and Japanese perspectives, respectively. In Chap. 1, entitled ‘China and the Law of the Sea: Historical Aspects’, Keyuan Zou explains the China’s relationship with the law of the sea, including the UNCLOS. Notably, the author touches upon the historical fishery relationship between China and Japan dating back to the pre-UNCLOS era and the China’s negotiation position within the UNCLOS (UN Conference on the Law of the Sea), for clarifying the long history of China with that of the law of the sea. The author also makes his opinion on the old and recent topic of the historic right, alleged by China. In Chap. 2, entitled ‘Japan and the Law of the Sea: Key Historical and Contemporary Milestones’, Shigeki Sakamoto shows the general sketch of Japan’s policy and attitude towards the law of the sea, by elucidating especially the domestic law of Japan concerning a variety of issues, such as the regulation of piracy, the territorial sea and the international straits, the maritime scientific research. The author does engage in a more controversial aspect of Japan’s policy in the realms of maritime boundary delimitation dispute with Japan’s surrounding countries, including the issue of whaling. Part II (Chaps. 3 and 4) deals with the implementation of the UNCLOS within the domestic legal system, in China and Japan. In Chap. 3, entitled ‘The United Nations Convention on the Law of the Sea and China’s Practice’, Yongming Jin first elucidates the basic principles of the UNCLOS which, according to the author’s viewpoint, are of primordial importance for China, a contracting party to the UNCLOS. The author then elaborates the relevant Chinese laws, which are aimed at implementing the UNCLOS in the Chinese domestic legal system, in terms of their disadvantages, effects, and influences within the China’s domestic legal system. In Chap. 4, entitled ‘Japanese Implementation of the United Nations Convention on the Law of the Sea’, Jun Tsuruta explains precisely the legal framework of the domestic legislation of Japan with regard to the law of the sea, relating to contiguous zone, territorial sea, EEZ, continental shelf, and maritime pollution prevention. Based on these legislations, the author clarifies how Japan integrates the UNCLOS into the Japanese legal system, by way of legislating a variety of domestic laws corresponding to relevant provisions of the UNCLOS.

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Part III (Chaps. 5 and 6) deals with the issues of passage and navigation, which are both important and, thus, long debated in the law of the sea. In Chap. 5, entitled ‘A Chinese Perspective on the Innocent Passage of Warships, Contemporary Issues and Analysis’, Yinan Bao analyses the Chinese position with regard to the innocent passage in the territorial sea, presuming the applicability of it to the South China Sea. The author tries to clarify, objectively, the merits and demerits of China’s domestic law and policy in this regard and, furthermore, tries to find the way of harmonising China’s interests and the other countries’ interests. In Chap. 6, entitled ‘Maritime Counter-Proliferation of Weapons of Mass Destruction and the Freedom of Navigation: A Japanese Lawyer’s Perspective’, Hiroyuki Banzai analyses Japan’s practice in the maritime counter-proliferation of WMD, which is situated at the cross-roads between criminal jurisdiction, law of the sea, and anti-terrorism activities in the international society. Based on this viewpoint, the author examines precisely the criminal jurisdiction in each relevant sea areas and, then, the PSI as a pilot plan for the criminalisation of the proliferation of WMD. Part IV (Chaps. 7 and 8) deals with the same issue of mid-ocean archipelago, on which a lot of debates have been made so far. In Chap. 7, entitled ‘The Application of Straight Baselines to Mid-Ocean Archipelagos Belonging to Continental States: A Chinese Lawyer’s Perspective’, Hua Zhang argues that the straight baselines are applicable to the mid-ocean archipelagos, such as the South China Sea. This argument is based not under the UNCLOS, but under customary international law. The author clarifies the requirements for applying this concept, under customary international law, and opines that it is actually applicable to several areas of China’s sea. In Chap. 8, entitled ‘A Critique Against the Concept of Mid-Ocean Archipelago’, Yurika Ishii counterargues that the concept of the mid-ocean archipelago has not been established neither under UNCLOS, nor under customary international law and, thus, applicable to no place in the world including the South China Sea. The author reached this conclusion on the basis of the comprehensiveness and superiority of UNCLOS and a thorough analysis on the State practice. Part V (Chaps. 9 and 10) is relating to marine environment protection. In Chap. 9, entitled ‘Chinese Law and Policy on Marine Environmental Protection’, Jiayi Wang introduces China’s policy framework for marine environmental protection, which has been recently developed in China, touching especially the relevant law and provisions. The author additionally explains a lot of relevant administrative regulations, which implement the laws, and the enforcement mechanism of these laws and regulations, for clarifying how China has developed the domestic system for marine environmental protection. In Chap. 10, entitled ‘Japanese Law and Policy on Marine Environment Protection: The Recent Activation of Ministry of Environment’, Makoto Seta focuses on Japan’s law and policy in marine environmental protection, within a variety of areas such as marine environmental protection from shipping, MPAs, and marine litter. The author points out the unique aspect of collaboration, in the said areas, between the Government’s regulations and the private activities, such as the NGO’s involvement.

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Part VI (Chaps. 11 and 12) is devoted to the dispute settlement system under the UNCLOS, which is characteristic in international law in terms of the unique mechanism of compulsory jurisdiction of the Annex VII arbitration. In Chap. 11, entitled ‘China’s Theory and Practice on Maritime Dispute Resolution’, Bo Qu elaborates the attitude of China towards the UNCLOS dispute settlement system, which emphasises the importance of negotiation rather than the compulsory dispute settlement. The author also analyses precisely the requirements for establishing compulsory jurisdiction of Annex VII arbitral tribunal, which were lacking in the South China Sea case, according to the author. In Chap. 12, entitled ‘UNCLOS Dispute Settlement Mechanism: Japan’s Experience and Contribution’, Dai Tamada introduces the experience of Japan in the UNCLOS dispute settlement system in light of actual cases in which Japan has been involved. The author’s analysis covers almost all kinds of the dispute settlement procedures, including prompt release, provisional measures, jurisdiction and admissibility. Based on this, the author clarifies also the contributions of Japan to the dispute settlement system.

Conclusion The above chapters have summarised the relevant state practice of the two countries in the context of the UNCLOS. We can see that there are converging and diverging views between the Chinese and Japanese scholars on legal issues concerning the law of the sea, which may or may not affect the policy and law of their respective countries. It is admitted that due to the limit of the book, it has only accommodated some of the topics which interest the contributors of this book. We have a sincere hope that future collaborative projects can focus on other issues in the law of the sea, such as the deep seabed mining, and generic resources on the high seas. Kobe, Japan Preston, UK

Dai Tamada Keyuan Zou

Acknowledgments

It is acknowledged that this edited volume is a cooperative outcome between Chinese and Japanese scholars specialising international law and generated through the on-going progress of the East Asia Forum of International Law initiated by the Waseda University in Japan and the Shanghai Academy of Social Sciences. The first meeting of the Forum was held in Shanghai in August 2016, second in Tokyo in November 2017, and third in Shanghai in October 2018. The scheduled fourth one has been postponed due to the Covid-19. We gratefully render our thanks to Prof. Haruo Nishihara, Prof. Zhen Wang, Prof. Hiroyuki Banzai and Prof. Yongming Jin. This is a good beginning for the legal scholars from the two countries to focus on some salient issues in international law and to contribute to the solution of these issues. The law of the sea has certainly become the top priority in our cooperative and research agenda as it is so important to both China and Japan. Finally, we render our sincere thanks to all the contributors to this book. Without their firm and consistent support, it is impossible that this book comes into being. We also very much appreciate Springer which has accepted and eventually published the book.

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Contents

Part I

Historical Aspects

1

China and the Law of the Sea: Historical Aspects . . . . . . . . . . . . . Keyuan Zou

2

Japan and the Law of the Sea: Key Historical and Contemporary Milestones . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Shigeki Sakamoto

Part II 3

4

6

17

Implementation

The United Nations Convention on the Law of the Sea and China’s Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Yongming Jin

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Japanese Implementation of the United Nations Convention on the Law of the Sea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Jun Tsuruta

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Part III 5

3

Navigation

A Chinese Perspective on the Innocent Passage of Warships, Contemporary Issues and Analysis . . . . . . . . . . . . . . . . . . . . . . . . . Yinan Bao Maritime Counter-Proliferation of Weapons of Mass Destruction and the Freedom of Navigation: A Japanese Lawyer’s Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Hiroyuki Banzai

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Contents

Part IV

Mid-Ocean Archipelagos

7

The Application of Straight Baselines to Mid-Ocean Archipelagos Belonging to Continental States: A Chinese Lawyer’s Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 Hua Zhang

8

A Critique Against the Concept of Mid-Ocean Archipelago . . . . . . 133 Yurika Ishii

Part V 9

Marine Environment

Chinese Law and Policy on Marine Environmental Protection . . . . 151 Jiayi Wang

10 Japanese Law and Policy on Marine Environment Protection: The Recent Activation of Ministry of Environment . . . . . . . . . . . . 179 Makoto Seta Part VI

Dispute Settlement

11 China’s Theory and Practice on Maritime Dispute Resolution . . . . 201 Bo Qu 12 UNCLOS Dispute Settlement Mechanism: Japan’s Experience and Contribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221 Dai Tamada Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 251

Editors and Contributors

About the Editors Dai Tamada is Professor of International Law at Graduate School of Law, Kobe University. He holds MA (Kyoto University 2000) and Ph.D. (Kyoto University 2014). His research areas cover international dispute settlement, international investment law, the law of treaties, and the law of the sea. He has been a committee member in several Government organs, including Ministry of Foreign Affairs (MOFA), Ministry of Economy, Trade and Industry (METI), and Ministry of Justice (MOJ) of Japan. His recent publications include Malgosia Fitzmaurice and Dai Tamada (eds.), Whaling in the Antarctic: Significance and Implications of the ICJ Judegment (Brill/Nijhoff, 2016), Dai Tamada and Philippe Achilleas (eds.), Theory and Practice of Export Control: Balancing International Security and International Economic Relations (Springer, 2017), and Piotr Szwedo, Richard Peltz-Steele and Dai Tamada (eds.), Law and Development: Balancing Principles and Values (Springer, 2019). Keyuan Zou is Professor of International Law at Dalian Maritime University, China and University of Central Lancashire, United Kingdom. He specialises in international law, in particular the law of the sea and international environmental law. He has published over 200 refereed English papers in more than 30 international journals and various edited books. His single-authored books include Law of the Sea in East Asia: Issues and Prospects, China’s Marine Legal System and the Law of the Sea, China’s Legal Reform: Towards the Rule of Law, and China-ASEAN Relations and International Law. His recent edited volumes include Global Commons and the Law of the Sea (2018), Maritime Cooperation in Semi-Enclosed Seas: Asian and European Experiences (2019), and The Belt and Road Initiative and the Law of the Sea (2020). He is a member of Editorial Boards of International Journal of Marine and Coastal Law, Ocean Development and International Law, Journal of International Wildlife Law and Policy, Marine Policy, Copenhagen Journal of Asian Studies, Journal of Territorial and Maritime

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Studies, Chinese Journal of International Law, and Advisory Boards of Global Journal of Comparative Law, Asia-Pacific Journal of Ocean Law and Policy, and Korean Journal of International & Comparative Law.

Contributors Hiroyuki Banzai has been a Professor of Law at Waseda University since April 2009, teaching public international law. His previous teaching experience includes Associate Professor of Surugadai University in Saitama. For his academic background, he received Master of Laws and Doctor of Laws Thesis of Waseda University. His main areas of expertise are on state responsibility for internationally wrongful acts, sources of law and non-proliferation of weapons of mass destruction. His book “Study on State Responsibility for Internationally Wrongful Acts” won the Adachi Mineichiro Memorial Award in 2016. Yinan Bao is an associate professor at School of International Law, East China University of Political Science and Law. He did his Ph.D. studies in diplomatic law at University of Sussex from 2010 to 2014 with a thesis entitled When Old Principles Face New Challenges: A Critical Analysis of the Principle of Diplomatic Inviolability. He had previously studied LLM in Public International Law at the University of Leicester from 2009 to 2010. Dr Bao’s major research interest is in public international law, especially in diplomatic law, territorial disputes and the law of the sea. His major academic work includes: “The US Theory of Excessive Maritime Claims and Its Practice: A Critical Analysis” (Chinese International Studies, 2017), “International Law Issues concerning the Unauthorized Intrusions of US Warships into the Adjacent Waters of Chinese Maritime Features in the South China Sea: A Positivist Analysis” (Pacific Journal, 2019), “Low-Tide Elevations: A Contemporary Analysis” (The Legal Challenges of Maritime Order in East Asia, 2018), “On the Historical Evolution of the Principle of Diplomatic Inviolability” (Chinese International Law Review, 2012) and “International Law Issues Concerning the Referendum of Crimea: A Preliminary Analysis” (Chinese Yearbook of International Law, 2015). Yurika Ishii is Associate Professor at National Defense Academy of Japan. Her areas of research interests include general public international law, law of the sea and international/transnational criminal law. She has published a number of papers on law of the sea, of which topics include maritime delimitation, submarine cables, migrants at sea, piracy, obligation of due regards, and self-defense at high seas. Her most recent writings include “The ‘Due Regard’ Obligation and the Peaceful and Economic Uses of the EEZ other than Fisheries,” International Journal of Marine and Coastal Law, Vol. 34 pp. 73–88 (2019). She achieved LL.B. from the University of Tokyo, Faculty of Law, LL.M. from Cornell Law School, and Ph.D.

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from the University of Tokyo, Graduate Schools for Laws and Politics with a thesis on international regulation of economic crimes, which was published as International Regulation of Transnational Crimes (Yuhikaku 2017). Yongming Jin Ph.D. in Law, is a professor at the School of International Affairs and Public Administration, a Senior Researcher of Institute of Marine Development, Ocean University of China. He holds LL.M. (Kansai University of Japan 2001) and Ph.D. (East China University of Political and Law 2005). His previous researching experience includes Research Professor of Shanghai Academy of Social Sciences. He is mainly engaged in teaching and researching international law of the sea, and his major academic books include: Study on the Solution to the Issues of the East China Sea (2008), Theoretical Study on Ocean Law of China (2014), Ocean Power Strategy of China in the New Era (2018) and Study on the Ocean Policy and Legal System of New China (2020). Bo Qu is a professor of international law at the Law School of Ningbo University, and Vice Director of the East China Sea Institute of Ningbo University, China. Her expertise includes various areas of the law of the sea, and more broadly covers acquisition of territories, state responsibility, sources of and dispute settlement in public international law. She has been in charge of many funded research projects on subjects including maritime delimitation, disputes over islands, maritime security and maritime dispute settlement mechanisms. Professor Qu has published about 50 journal articles on public international law. She is a member of the Chinese Society of International Law and the Chinese Society of Law of the Sea. Shigeki Sakamoto is Professor of the Faculty of Law, Doshisha University. Professor Emeritus of Kobe University. Doctor of Laws (Kobe University). Member of the Advisory Committee of the UN Human Rights Council (2008– 2013). He served as an Advocate for the Government of Japan in “Southern Bluefin Tuna” Cases (Australia and NZ v. Japan) under UNCLOS Part XV. Former President of the Japanese Society of International Law, President of the Japanese Institute for the Law of the Sea. His research interests cover law of treaties, law of the sea and international human rights law. His recent publications include Japan’s Ocean Policy and the Law of the Sea (Shinzansha, 2nd ed., 2019), Interpretation and Application of International Human Rights Treaties (Shinzansha, 2017), Theory and Practice of the Law of Treaties (Toshindo, 2004). Makoto Seta is an Associate Professor of International Law at Yokohama City University, Japan. He holds Ph.D. in Law, Waseda University (Japan); LL.M. London School of Economics and Political Science (UK); LL.B. Waseda University (Japan). He worked as a Research Associate at the Institute of Comparative Law at Waseda University from April 2013 to March 2015. He interned at Trial Chamber II of the International Criminal Court in 2009. In 2013, his article “Regulation for Private Maritime Security Companies and Its Challenges” received an award by the Yamagata Maritime Institute. His primary interest is the law of the sea, especially ocean governance and universal jurisdiction

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over maritime crimes. His publications include the monograph International Law for Ocean Governance (Sanseido, 2015). Since 2016, he serves as a member of the International Organization for Standardization (ISO) Technical Committee 8, Subcommittee 13, Working Group 4 (ISO/TC8/SC13/WG4), which makes international standards for marine environment impact assessment. Jun Tsuruta is Associate Professor of International Law at Meiji Gakuin University, Tokyo, Japan. He also serves as Visiting Lecturer of International Environmental Law at Waseda University, Visiting Researcher at Institute of Maritime Law, Waseda University and Visiting Lecturer of International Law at Tsukuba Law School, and served as Legal Adviser, Japan Agency for Marine-Earth Science and Technology. He earned a master’s degree in laws from the University of Tokyo. He published many articles on international law of the sea and international environmental law. His recent works in English include the articles titled as, “Legal Issues to Implement the SUA 2005 Protocol from Japanese Perspective”, Meijigakuin Law Journal, Vol. 107(2019), and “Application and Enforcement of the Japanese Stimulants Control Act against Foreign Ships at Sea,” Meijigakuin Law Journal, Vol. 110(2021). Jiayi Wang is a lecturer at Huzhou University. She has over 10 years of experience in study, teaching and practice of international law. She earned LL.M. degree from University of Manchester in 2009. During 2010–2014, she has been a faculty member in Huzhou University. Since 2014, she has studied in Zhejiang University Guanghua Law School and obtained her Ph.D. (Law of the Sea) degree in 2019. She was a Visiting Scholar with the Center for Ocean Law and Policy at the University of Virginia (2016–2017) sponsored by China Scholarship Council. Her research interests include the law of the sea and international environmental law. She published widely on ocean law and policy issues of China, such as ‘Enforcing Marine Environmental Law in China: Some New Measures’ in Chinese Journal of International Law; ‘China’s Efforts in Marine Biodiversity Conservation: Recent Developments in Policy and Institutional Reform’, in International Journal of Marine and Coastal Law; and ‘Solid Wastes Import Control in China: Recent Developments’, in Asia-Pacific Journal of Ocean Law and Policy. She has been involved in a number of research projects on marine environmental and climate change issues. Dr. Wang also has rich experience in legal practice, dealing with civil litigations and providing legal consultation as a part-time lawyer with Dongtangren Law Firm since 2012. Hua Zhang is an Associate Professor in International Law & EU Law at School of Law, Nanjing University, where he teaches public international law, and EU law. He holds PhD degree in International Law from the Institute of International Law, Wuhan University (2009). He has been working at Nanjing University since 2009. He once worked as a visiting fellow at Manchester University (UK, 2007), Goettingen University (Germany, 2011), and University of Cambridge (UK, Lauterpacht Centre for International Law, 2013- 2014). His research interest lies in

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international law of the sea, especially maritime delimitation, and maritime dispute settlement. Apart from publications on law of the sea, he has also published a series of works on EU Law, including two monographs on EU external relations law. He is a member of Chinese Society of International Law, Chinese Society of European Law, and Chinese Society of Law of the Sea.

Part I

Historical Aspects

Chapter 1

China and the Law of the Sea: Historical Aspects Keyuan Zou

1.1 Introduction It is only recently that China has gradually turned its attention to the oceans. Looking back at Chinese history, China was basically a land-based country without a vision for ocean exploration except for a short period during the Ming Dynasty (1368– 1644) when Zheng He led Chinese fleets seven times (1405-33) to sail as far as to the African coasts. The Qing Dynasty (1644–1911) enforced the “forbidden to the sea” policy which prohibited Chinese people from going out to sea and the violators were subject to the death penalty. In the early period of the People’s Republic of China (PRC), China basically maintained land-based policy and only sporadically issued governmental documents concerning the oceans. The most important at that time is the Declaration on the Territorial Sea proclaimed on 4 September 1958, in which China claimed its territorial sea of 12 nautical miles.1 Regarding fishery management, China issued an Order on the Motor Trawl Prohibition Zones in Bohai, the Yellow Sea, and the East China Sea to establish prohibition zones to deter flood of Japanese fishing boats.2 After the PRC replaced the Republic of China (ROC) for the seat of China in the United Nations in 1971, the Chinese government sent delegations to the Third UN Conference on the Law of the Sea (1973–1982). However, China used this international forum attacking the two China-perceived superpowers—the former Soviet Union and the United States.

1 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), 182–183. 2 Zou Keyuan, “Sino-Japanese Joint Fishery Management in the East China Sea”, Marine Policy, 2003, Vol. 27 (2), 126.

K. Zou (B) University of Central Lancashire, Lancashire, UK e-mail: [email protected] © Kobe University 2021 D. Tamada and K. Zou (eds.), Implementation of the United Nations Convention on the Law of the Sea, Kobe University Monograph Series in Social Science Research, https://doi.org/10.1007/978-981-33-6954-2_1

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K. Zou

After 1978 when China began its economic reform and implemented its opendoor policy, the Chinese government also began to consider making ocean policy. In 1984, the State Oceanic Administration (SOA) submitted to the State Council a report entitled “Study Report on Ocean Development Strategy in China” which contained 12 basic policies regarding ocean development.3 In 1989, the same Administration prepared another report on China’s ocean industrial policy, which was regarded as the first governmental report addressing development policies of marine industries.4 By the 1990s China had carried out economic reforms and had opened its door to the outside world for more than a decade, with the rapid development of its economy, China turned more attention to the ocean and the formulation of national ocean policy. It is reported that the first National Ocean Working Conference held in Beijing in January 1991 adopted the report on China’s Ocean Policy and Working Outlines.5 In 1993, the National Commission on Science and Technology published its Blue Book—Marine Technology Policy, which aimed at adopting new technologies for marine surveying and comprehensive investigations, improving marine monitoring and public service systems, protecting marine environment, developing marine engineering technology, improving marine communication and navigation positioning systems, and developing and using marine resources.6 This document is described as the first comprehensive and macroscopic guidelines for the development of marine science and technology.7 There are several driving forces pushing forward the development of China’s ocean policy. First is the adoption of the UN Convention on the Law of the Sea (LOS Convention) in 1982 and its entry into force in 1994. China regards this international treaty as representative of the new law of the sea as opposed to the so-called old law of the sea, represented by the four Geneva Conventions on the law of the sea. China ratified the LOS Convention in 1996. Based on that Convention, China enacted two basic ocean laws: the 1992 Law on the Territorial Sea and the Contiguous Zone and the 1998 Law on the Exclusive Economic Zone and the Continental Shelf.8 The second driving force is the maritime enclosure movement around the world after the LOS Convention. Coastal states have extended their maritime space at least to 200 nautical miles under their national jurisdiction. China just followed suit and with the enactment of the 1998 EEZ Law, China established its EEZ regime. Maritime disputes with other countries concerning overlapping maritime areas and islands have been thus intensified. The third driving force comes from economic development 3 Li Guoqing (ed.), Study on China’s Comprehensive Ocean Management (Beijing: Ocean Press) (in Chinese), 1998, 300. 4 Li, ibid., 300–301. 5 Li, ibid., 303. 6 For details, see National Commission on Science and Technology, Marine Technology Policy (Beijing: Ocean Press, 1993) (in Chinese). 7 Ma Yingjie and Xie Xinying, “China’s Ocean Policy”, in Li Yongqi and Lu Shouben (eds.), Study on Basic issues Concerning the Management of the Use of Sea Areas (Qingdao: Ocean University Press, 2002) (in Chinese), 43. 8 Zou Keyuan, China’s Marine Legal System and the Law of the Sea (Leiden/Boston: Martinus Nijhoff, 2005a), 338–345.

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and energy demand. With the rapid growth of its economy, China demands more and more energy resources to maintain its fast growth. With the depletion of energy resources on land, China has turned its efforts to the ocean and its seabed. In addition to its presence in the international seabed area, China has explored offshore oil and gas in its adjacent seas. Deep sea exploration has also commenced. Due to some overlapping maritime claims in these seas, tensions and even conflicts between China and its neighbouring countries are reported from time to time in the mass media. Finally, the significant change in domestic environment has also enhanced China’s ocean policy making with at least two key factors: the implementation of the market-oriented economy since 1992 and the incorporation of the concept of “rule of law” in the Chinese Constitution in 1999. However, this chapter is designed to review some historical aspects of China’s practice in the law of the sea without much discussion on recent developments.

1.2 Fisheries Relations with Japan in Early Times With the end of World War II (1939–1945), 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 PRC in 1949, the Chinese Government carried out an encouraging fishery policy so as to recover the fishery industry after the Civil War (1946–1949) and Chinese fishermen were asked to get 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° East Longitude (which was changed to west of 128° East 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 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), at 452. 11 Japanese fishing boats operated up to three nm from the Chinese coast, and some even entered into China’s internal waters.

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the Chinese side, Japanese bigger fishing boats usually took advantages in 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 started with the first seizure of the Japanese fishing boat Dai-Ichi Unzen-Maru on 7 December 1950. As a result, China arrested altogether 158 Japanese fishing boats and 1,919 crewmembers 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 non-governmental entities (despite whether it was in the name). In June 1955, a first (non-governmental) 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 (6 zones for trawling and 3 for seine operations) were established by way of limiting the maximum number 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 to 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, comprised 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 fishes, 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 12 Japan

still maintained its diplomatic ties with the Republic of China on Taiwan at that time. Zengo Ohira and Terumichi Kuwahara, “Fishery Problems between Japan and the People’s Republic of China”, Japanese Annual of International Law, Vol. 3, 1959, at 109 and 111. 14 Text is in http://www.china-fishery.online.sh.cn/09-sjzl/02-FL/FALV068.HTML. 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”, Ocean Development and International Law, Vol. 6, 1979, at 184. 16 Tanaka, ibid., at 184. 13 See

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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 non-governmental 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 182 nautical miles (nm) 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 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, supra note 13, at 115. 18 Text in Fishery Administrative Bureau, Ministry of Agriculture, PRC (ed.), Sino-Japanese 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), at 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, at 43.

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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 correspondent 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 exclusive economic zone (EEZ) upon 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 ground that Japan had fished considerably along the Chinese coast since the 1950s. As a result, the two sides finally reached agreement in September 1997 regarding the fishery management in the East China Sea.22

1.3 Declaration on the Territorial Sea The most important legal document in China before its joining the LOS Convention is the Declaration on the Territorial Sea publicised in September 1958. It contains a number of significant provisions concerning the law of the sea and some still have implications for the development of China’s practice in the law of the sea. Regarding the limit of the territorial sea, the Declaration stipulates 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 and all other islands belonging to China which are separated from the mainland and its coastal islands by the high seas. China uses straight baselines connecting basepoints on the mainland coast and on the outermost of the coastal islands. The water area inside the baseline, including Pohai Bay and Chiungchow Straits, are Chinese inland waters. The islands inside the baseline, including Tungyin Island, Kaoteng Island, the Matsu Islands, the Paichuan Islands, Wuchiu Island, the Greater and Lesser Quemoy Islands, Tatan Island, Erhtan 22 Fishery Agreement between the People’s Republic of China and Japan, 11 November 1997 (in Chinese). English text translated by this author is available in Zou Keyuan, Law of the Sea in East Asia (London: Routledge, 2005b), 175–180.

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Island and Tungting Island, are islands of the Chinese inland waters.23 The provisions above are also applicable to Taiwan and its surrounding islands, the Penghu Islands, the Tungsha Islands, and Hsisha Islands, the Chungsha Islands, the Nansha Islands, and all other islands belonging to China.24 Regarding innocent passage within the territorial sea, the Declaration provides that ‘No foreign vessels for military use and no foreign aircraft may enter China’s territorial sea and the air space above it without the permission of the Government of the People’s Republic of China’.25 Although the scope is specifically limited to vessels for military use, in practice, China recognized the right of innocent passage for merchant ships, provided that they are in compliance with relevant Chinese laws and regulations. The intention behind the Declaration at that time is clear: it was to deter U.S. warships, which supported logistically the Nationalist Chinese in Taiwan, from approaching the coast of mainland China.26 The spirit and content of the Declaration on innocent passage were endorsed in later Chinese laws and regulations, including the 1983 Maritime Traffic Safety Law of the People’s Republic of China,27 and the 1992 Law on the Territorial Sea and the Contiguous Zone.28 Regarding internal waters, the Declaration specifically mentioned the Pohai (Bohai) Bay and Chiungchow (Qiongzhou) Strait. The Qiongzhou Strait is situated between the Hainan Island and the Leizhou Peninsular. It is about 50 miles long and extends between 9.8-19 miles wide. According to a Chinese authority, 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 our country has always administered it as an internal strait. The present Declaration is merely to reaffirm once more a historical fact’.29 It should be noted that whether the Qiongzhou Strait was an internal strait of China is unclear before the 1958 Declaration. It may be assumed that Qiongzhou Strait’s status as an internal strait was to a large extent a result of China’s declaration to use straight baselines to enclose the 23 See

Office of Policy, Law and Regulation, supra note 1.

24 Ibid. 25 Ibid. 26 Zou Keyuan, ‘Innocent passage for warships: The Chinese doctrine and practice’, Ocean Development & International Law, 1998, 29:3, 195–223. 27 Article 11 of the Maritime Traffic Safety Law of the People’s Republic of China provides, ‘Military vessels of foreign nationality may not enter the territorial waters of the People’s Republic of China without the approval of the Government of the People’s Republic of China.’ 28 Article 6 provides that ‘Foreign ships for non-military purposes shall enjoy the right of innocent passage through the territorial sea of the People’s Republic of China in accordance with the law. Foreign ships for military purposes shall be subject to approval by the Government of the People’s Republic of China for entering the territorial sea of the People’s Republic of China.’ 29 Fu Zhu, 1959, Concerning of Our Country’s Territorial Sea (Beijing), reprinted in J. A. Cohen and H. Chiu, People’s China and International Law (Princeton, New Jersey: Princeton University Press, 1974), 1, p. 486.

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coastal sea areas as its internal waters, although at that time the exact delineation was not publicly known.30 Also in the Declaration, Bohai Bay is considered as China’s internal waters. There are two regulations concerning the passage of merchant vessels through the Lao Tieh Shan Channel and within the inner water area of the Encounter Rock in the Bohai Sea (or Bay).31 The historical reasons32 behind the Declaration concerning Qiongzhou and Bohai are relevant to China’s historic rights in the South China Sea. It is recalled that China recognized the Soviet historic bay claim to the Peter the Great Bay in 1957.33 Regarding the South China Sea islands, it declared that the Dongsha Islands, the Xisha Islands, the Zhongsha Islands, and the Nansha Islands all belonged to China.34 It provides that the method measuring the Chinese territorial sea of 12 nautical miles by straight baselines for the mainland and its coastal islands is also applicable to the archipelagos in the South China Sea. However, the Declaration did not mention China’s U-shaped line in the South China Sea. The Declaration signifies China (PRC)’s position concerning the law of the sea and it is the first time that PRC expressed its position regarding the regulation of the territorial sea. It is more significant if we look at it in combination with the adoption of the four Geneva Conventions on the Law of the Sea in April the same year.35 It is also worth mentioning that PRC at that time was not a UN member and neither a signatory to the four Geneva Conventions.

1.4 China and the UNCLOS III It is in fact that the Third UN Conference on the Law of the Sea (1973–1982) was the first grant diplomatic conference that the Chinese Government sent its delegation to after the PRC replaced the Republic of China (ROC) for the seat of China in the United Nations in 1971. As a new comer, China might not have well prepared for such a conference and at the same time was highly influenced ideologically under Mao as the year of 1973 was still within the period of the Cultural Revolution 30 Zou Keyuan, ‘Navigation of Foreign Vessels within China’s Jurisdictional Waters’, Maritime Policy & Management, 2002, 29:4, pp. 351–374. 31 Zou, ibid., 351–374. 32 “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 [in fact] is internationally recognized”. 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) at 484. 33 See People’s Daily (in Chinese), 23 September 1957. 34 See Office of Laws and Regulations, supra note 1, p. 3. 35 They are: Convention on the Territorial Sea and Contiguous Zone (in force: 10 September 1964), Convention on the Continental Shelf (in force: 10 June 1964), Convention on the High Seas (in force: 30 September 1962), and Convention on Fishing and Conservation of Living Resources of the High Seas (in force: 20 March 1966).

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(1966–1977),—a most catastrophic era in Chinese history. As a result, China used this international forum attacking the two China-perceived superpowers—the former Soviet Union and the United States, accusing of their hegemonism in the global ocean rather than joining other countries in deliberating detailed provisions in favour of its national interests. For the whole process, China only submitted three short and simple working papers to the conference.36 As a prominent scholar has observed, China had little involvement in and no expertise on the law of the sea matters: “The Chinese delegation sought instead to embarrass the Soviet Union wherever possible and to maintain the ideological and political integrity of the G77 coalition”.37 Nevertheless, the negative impact from domestic politics gradually disappeared after 1978 when China began to carry out the economic reform and open-door policy. With diplomatic pragmatism put forward by Deng Xiaoping, China paid attention to some of the provisions in the draft LOS Convention, which might not be favourable for China, such as the definition on the continental shelf. But at the final stage of the conference, it was extremely difficult for China to revise such provisions. Thus on the occasion of signing the LOS Convention, the head of the Chinese delegation made a statement, expressing disappointment with some provisions concerning the continental shelf and innocent passage.38 During UNCLOS III, China submitted a working paper specifically on “General Principles for the International Sea Area”. According to the Chinese view, the ocean and the sea should be divided into two parts under the law of the sea: sea area within the limits of national jurisdiction and the international sea area which included “all the sea and ocean space beyond the limits of national jurisdiction”.39 The international sea area and its resources are, in principle, jointly owned by the people of all countries.40 It is clear that China’s concept of the “international sea area” is different from that of the “international seabed area” in the sense that the Chinese concept does not limit itself to the deep seabed only. China did not use the term “high seas” referring to the international sea area as China viewed the term “high seas” as obsolete, appearing in the four 1958 Geneva Conventions to which the PRC did not accede, and in China’s eyes, the Geneva Conventions were representative of the old law of the sea. While the old law of the sea served only the interests of a few big powers, the new LOS Convention laid

36 They are concerning sea areas within national jurisdiction, marine scientific research, and international sea area respectively and reprinted in Division of International Law of the Department of Law, Peking University (ed.), Collected Materials on the Law of the Sea (Beijing: People’s Publishing House, 1974)(in Chinese), 73–76, 78–79 and 81–82. 37 See Edward L. Miles, Global Ocean Politics: The Decision Process at the Third United Nations Conference on the Law of the Sea 1973-1982 (The Hague: Martinus Nijhoff, 1998), 24–25. 38 See Han Xu, Statement on 9 December 1982, UNCLOS III, Official Records, XVI; Summary Records of Meetings, 1982, 102. 39 “Working Paper on General Principles for the International Sea Area”, A/AC.138/SC.II/L.45, 6 August 1973, reprinted in Jeanette Greenfield, China’s Practice in the Law of the Sea (Oxford: Clarendon, 1992), at 235. 40 Ibid.

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down a number of important legal principles for safeguarding the common heritage of mankind and the legitimate maritime rights and interests of all States.41 In 1972, the Chinese delegation expressed the view that the international regime should not regulate only the seabed exploration and exploitation activities. If the regulatory scope of the international seabed area were only limited to the development of seabed mineral resources, it would not conform to the interests of the developing countries, nor to the concept of the common heritage of mankind.42 Later on, when the international regime for the deep seabed was finally formed, China shifted its original position so as to support the newly established regime for the deep seabed only. While criticizing the superpowers, China considered that the “parallel system of exploitation” put forward by one superpower to be a bad idea.43 Later on, China changed its stand and did not oppose the establishment of the parallel system both as a compromise and as a provisional arrangement provided that the necessary technology and resources for the Authority and the Enterprise were guaranteed.44 The Chinese delegation was dissatisfied with the final arrangement for the legal regime of deep seabed mining. Resolution II of the Conference, governing preparatory investment in pioneer activities relating to polymetallic nodules, has done too much in the way of meeting the demands of a few industrialized nations and given them and their companies some privileges and priorities. We consider that inappropriate. 45

In the early 1970s, China had no intention of itself exploring deep seabed mineral resources, and it had no capability to carry on any deep seabed exploration even if it had the intention to do so during that time because its economy was on the verge of collapse. Only after China had carried out its economic reforms and introduced its “open-door” policy in 1978 did this become feasible. Despite some deficiencies, in its eye, in the LOS Convention, China upholds the principles and norms of the Convention as well as most of its clauses. China regards this international treaty as the representative of the new law of the sea as opposed to the so-called old law of the sea, represented by the four Geneva Conventions on the law of the sea adopted in 1958 when PRC was still outside the UN system and had no chance to participate in the deliberations of these conventions.

41 Mr. Han Xu, 191st Meeting, Plenary Meetings, 9 December 1982, in United Nations, Third United Nations Conference on the Law of the Sea: Official Records, Vol. XVII, 1984, at 102. 42 Xia Pu on Ocean International Regime, 27 July 1972, reprinted in Peking University Law Department (ed.), Collected Materials on the Law of the Sea (Beijing: People’s Press, 1974) (in Chinese), 35–36. 43 See See Mr. Lin Ching, 76th Meeting of the Plenary Meetings, 17 September 1976, in United Nations, Third United Nations Conference on the Law of the Sea: Official Records, Vol. VI, 1977, at 26. 44 See Mr. Ke Zaishuo, 114th Meeting of the Plenary Meetings, 26 April 1979, in United Nations, Third United Nations Conference on the Law of the Sea: Official Records, Vol. XI, 1980, at 22. 45 Mr. Han Xu, supra note 41, at 102.

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1.5 The Issue of Historic Rights China’s claim to the South China Sea is partially based on the so-called U-shaped line drawn as early as 1947, which refers to the line with nine segments off the Chinese coast on the South China Sea, as displayed in the Chinese map. According to China, the line has been called the “traditional maritime boundary line”.46 The southernmost end of the line was set at 4° north latitude and encompasses James Shoal. China has claimed all the islands, atolls and even submerged banks within this line. But it is not clear whether China has claimed the enclosed waters. The line first appeared on a Chinese map in December 1914, which was compiled by Hu Jinjie, a Chinese cartographer.47 The maps published during the 1920s and 1930s followed Hu’s map.48 The line at that time only included the Pratas and the Paracel Islands. The year of 1933 seems to be an important time for the modification and emphasis of the line in the Chinese maps. In July of that year, France, the then protector of Vietnam, occupied nine of the Spratly Islands. This action was strongly protested by China, and afterwards the line in the maps relating to the South China Sea was extended further south to 7°–9° north latitude.49 The intention behind this step was clear: indicating 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 which included the James Shoal, i.e. the line extended to 4° north latitude. This is the New China’s Construction Atlas edited by Bai Meichu and published in 1936. Actually in 1935, the Committee of Examining the Water and Land Maps of the Republic of China published the names of 132 islets and reefs of the four South China Sea “archipelagos”. The publication had an annexed map which marked James Shoal at the location of about 4° north latitude, 112° east longitude, though the line was not shown on the map. It should be noted that all the collections of the above atlases including the Ushaped line were compiled by individuals. They may, suffice it to say, constitute indirect evidences to show the official position of the government. Only in 1947 after World War II, was the line at last officially confirmed by the Chinese Government. On 46 For details, see 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. 47 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), 355. 48 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. 49 For example, Chen Duo (ed.), Newly-Made Chinese Atlas published in August 1934; Tan Lian & 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, supra note 47, 356–359.

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1 December 1947, the Chinese Ministry of Interior renamed the islands in the South China Sea and formally allocated them into the administration of the Hainan Special District.50 Meanwhile, the same ministry prepared a location map of the islands in the South China Sea, which was first released for internal use. In February 1948, the Atlas of Administrative Areas of the Republic of China, which included the above map, was officially published. This is the first official map with the line for the South China Sea and it has had a substantial influence on subsequent maps published by either mainland China or Taiwan. It has two general characteristics: the southernmost end of the line was set at 4° north latitude including the James Shoal; and the line consisted 11 segments instead of the previous continuous line.51 According to the then official explanation, the basis for drawing the line was that “[t]he southernmost limit of the South China Sea territory should be at the James Shoal. This limit was followed by our governmental departments, schools and publishers before the antiJapanese war, and it was also recorded on file in the Ministry of Interior. Accordingly it should remain unchanged”.52 Historic rights have been prescribed in China’s 1998 Law on the Exclusive Economic Zone and the Continental Shelf, Article 14 of which provides that “the provisions of this Law shall not affect the historic rights enjoyed by the People’s Republic of China’.53 It is acknowledged that “historic rights“ are not equivalent to “historic waters“ in international law, although the former may carry a broader meaning and even include “historic waters”. After the South China Sea initiated by the Philippines in 201354 and ended in July 2016,55 China reiterated that it enjoyed historic rights in the South China Sea.56 Despite remaining controversies, there is no sign that China will compromise its original position on the U-shaped line and recent practices demonstrate that China has made constant efforts to further consolidate the line by various activities including

50 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, Owen Norman and E.V. Roberts (eds.), Fishing in Troubled Waters, Proceedings of the Academic Conference on Territorial Claims in the South China Sea (Hong Kong: Centre for Asian Studies, University of Hong Kong, 1991), 88. 51 Two segments in the Gulf of Tonkin were removed by the People’s Republic of China in the 1950s without an official explanation to the public, though it is believed that the removal was linked to the transfer of the ownership over the Bai Long Vi Island from China to Vietnam. 52 See Han, supra note 47, 181–184. 53 See People’s Daily (in Chinese), 30 June 1998. An unofficial English version of the Law is appended to Zou, supra note 8, 342–345. 54 The diplomatic note and Philippines’ “Notification and Statement of Claim” are available at http://www.gov.ph/downloads/2013/01jan/20130122-Notification-and-Statement-of-Claim-onWest-Philippine-Sea.pdf. 55 The text of the award is available at http://www.pcacases.com/pcadocs/PH-CN%20-%202016 0712%20-%20Award.pdf. 56 See ‘Statement of the Government of the People’s Republic of China on China’s Territorial Sovereignty and Maritime Rights and Interests in the South China Sea’, 12 July 2016, available at http://www.fmprc.gov.cn/nanhai/eng/snhwtlcwj_1/t1379493.htm.

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regular and intensified law enforcement patrols within the line in the South China Sea.57

1.6 Conclusion The above historical overview shows that China’s practice in the law of the sea is consistent at least in some aspects, such as innocent passage in the territorial sea, which is still applicable nowadays. In some aspects, China advanced among a few countries in the 1950s to declare its 12-nm territorial sea while majority of the world community still practised three nm. China’s historic rights in the South China Sea is very unique in international law of the sea and governed by general international law including customary law beyond the LOS Convention. China’s practice in this field can no doubt contribute to the development of the international law for historic rights. On the other hand, it is pointed out that after China joined the LOS Convention, China’s practice in the law of the sea is further enriched, and will be discussed in the following chapters of this book.

References Cohen, J. A., & Chiu, H. (1974). People’s China and international law (Vol. 1, p. 486). Princeton, New Jersey: Princeton University Press. Greenfield, J. (1992). China’s practice in the law of the sea (p. 235). Oxford: Clarendon. Han, Z. (Ed.). (1988). A compilation of historical materials on China’s South China Sea Islands (p. 355). Beijing: Oriental Press. (in Chinese). Hill, R. D., Norman, O., & Roberts, E. V. (Eds.). (1991). Fishing in troubled waters. In Proceedings of the Academic Conference on Territorial Claims in the South China Sea (p. 88). Hong Kong: Centre for Asian Studies, University of Hong Kong. Hong, S. Y. (1977). The Sino-Japanese fisheries agreements of 1975: A comparison with other North-Pacific fisheries agreements. In Occasional papers/reprints series in contemporary Asian studies (Vol. 6, pp. 8–10). School of Law, University of Maryland. Li, G. (Ed.). (1998). Study on China’s Comprehensive Ocean Management (p. 300). Beijing: Ocean Press. (in Chinese). Lin, C. (1977). 76th Meeting of the Plenary Meetings, 17 September 1976, in United Nations. In Third United Nations Conference on the Law of the Sea: Official Records (Vol. VI, p. 26). Ma, Y., & Xie, X. (2002). China’s ocean policy. In Y. Li, & S. Lu (Eds.), Study on basic issues concerning the management of the use of sea areas (p. 43). Qingdao: Ocean University Press. (in Chinese). Miles, E. L. (1998) Global Ocean Politics: The Decision Process at the Third United Nations Conference on the Law of the Sea 1973–1982 (pp. 24–25). The Hague: Martinus Nijhoff. Ohira, Z., & Kuwahara, T. (1959). Fishery Problems between Japan and the People’s Republic of China. Japanese Annual of International Law, 3, 109, 111.

57 For recent developments on the line, see Zou Keyuan, “China’s U-shaped Line in the South China

Sea Revisited”, Ocean Development and International Law, Vol. 43, 2012, 18–34.

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Prescott, J. R. V. (1987). Maritime jurisdiction in East Asian Seas. East-West Environment and Policy Institute Occasional Paper (Vol. 4, p. 43). Tanaka, S. (1979). Japanese fisheries and fishery resources in the Northwest Pacific. Ocean Development and International Law, 6, 184. Valencia, M. J. (1996). A maritime regime for Northeast Asia (pp. 258). Hong Kong: Oxford University Press. Xu, H. (1982). Statement on 9 December 1982, UNCLOS III, Official Records (p. 102). XVI; Summary Records of Meetings. Xu, H. (1984). 191st Meeting, Plenary Meetings, 9 December 1982, in United Nations. In Third United Nations Conference on the Law of the Sea: Official Records (Vol. XVII, p. 102). Zaishuo, K. (1980). 114th Meeting of the Plenary Meetings, 26 April 1979, in United Nations. In Third United Nations Conference on the Law of the Sea: Official Records (Vol. XI, p. 22). Zou, K. (1998). Innocent passage for warships: The Chinese doctrine and practice. Ocean Development & International Law, 29(3), 195–223. Zou, K. (1999). 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, 14(1), 27–55. Zou, K. (2002). Navigation of Foreign Vessels within China’s jurisdictional waters. Maritime Policy & Management, 29(4), 351–374. Zou, K. (2003). Sino-Japanese joint fishery management in the East China Sea. Marine Policy, 27(2), 126. Zou, K. (2005a). China’s marine legal system and the law of the sea (pp. 338–345). Leiden/Boston: Martinus Nijhoff. Zou, K. (2005b). Law of the sea in East Asia (pp. 175–180). London: Routledge. Zou, K. (2012). China’s U-shaped line in the South China Sea revisited. Ocean Development and International Law, 43, 18–34.

Chapter 2

Japan and the Law of the Sea: Key Historical and Contemporary Milestones Shigeki Sakamoto

2.1 Introduction For centuries, the maritime order governing the world’s oceans, which cover over 70% of the Earth’s surface, consisted of a dual structure, divided between the narrow band of territorial waters deemed necessary for the security of coastal States and the vast high seas beyond, which all countries were free to navigate and use as they saw fit. The law of the sea, which codified this order, is one of the oldest branches of international law. Japan’s State practice in international law began with the law of the sea. In the Prussian-French War of 1870, Japan declared its neutrality, and accepted the rule of 3 nautical miles territorial waters as follows: the contending parties are not permitted to engage in hostilities in Japanese harbor or inland waters, or within a distance of three nautical miles from land at any place, such being the distance to which a cannon-ball can be thrown. Men-of-war or merchant vessels will, however,be allowed free passage as heretofore.1

As Professors Churchill and Lowe have rightly pointed out, through much of the history of the notion of ‘territorial sea’, the question as to its breadth has been a matter of controversy.2 In 1924, the League of Nations appointed a Committee of Experts to draw up a list of subjects ripe for codification, in which that of territorial sea was included.3 The Committee circulated ‘Questionnaires’ to governments on

1 Hanawa

(1978). and Lowe (1999). 3 Ibid., 1999, p. 14. 2 Churchill

S. Sakamoto (B) Doshisha University, Kyoto, Japan e-mail: [email protected] © Kobe University 2021 D. Tamada and K. Zou (eds.), Implementation of the United Nations Convention on the Law of the Sea, Kobe University Monograph Series in Social Science Research, https://doi.org/10.1007/978-981-33-6954-2_2

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the notion of territorial sea, to which Japan replied indicating that it had adopted the three nautical miles limit as the breadth of its territorial sea. The 1930 Hague Conference attempted to reach agreement on the breadth of the territorial sea, but failed.4 During this Conference, Japan asserted three nautical miles as the limit of the territorial sea.5 At the same time, this Conference took up the issue of the contiguous zone adjacent to the territorial sea, where the coastal State can exercise control to prevent the infringement of its customs and sanitary laws, or national defence.6 Japan, as well as the UK, the United States, and Germany, opposed the inclusion of national defence as an object of jurisdiction in the contiguous zone. Japan asserted that the contiguous zone could not extend to 12 nautical miles from the baselines of coastal States. The background of Japan’s persistence to the three nautical miles limit of the territorial sea is routed in its intention to defend its national interest as a distantwater fishing nation. Since the enactment of the Encouragement of Distant Water Fishing Law in 1902, the number of Japanese trawlers has dramatically increased, resulting in Japan soon becoming one of the leading distant-water fishing nations. This continued to also be the case after the World War II. The First United Nations (UN) Conference on the Law of the Sea adopted four conventions, namely, the Convention on the Territorial Sea and the Contiguous Zone, the Convention on the High Seas, the Convention on the Continental Shelf, and, lastly, the Convention on Fishing and Conservation of the Living Resources of the High Seas in 1958.7 During that conference, Japan asserted a narrow territorial sea to defend its fishery interests. The First Conference could not reach agreement on the breadth of the territorial sea. The Second UN Conference, held in 1960 to mainly consider the breadth of the territorial sea, was marked by polarisation involving, on the one hand, countries with a 6 nautical mile claim and, on the other, those with a 12 nautical mile claim. During discussions, Japan was consistent in advocating a 3 nautical mile territorial sea limit. The proposal, under which the United States and Canada were allowed to set a 6 nautical mile territorial limit, while other coastal States were free to set their fishery zone at 12 nautical miles, was jointly submitted by the United States and Canada. Japan abstained from voting on this proposal, which resulted in its rejection by 1 vote. The Director-General of the Treaties Bureau of Japan’s Ministry of Foreign Affairs, announced the Japanese Government’s official position on the extent of the territorial waters and the fishing zone in his statement of 10 February 1964 in the House of Representatives, as follows:

4 Ibid.,

p. 79. Yachi (1930). 6 The claim as to the continuous zone first appeared in the Harvard Law School Draft on Territorial Waters. O’Connell (1982). 7 Japan had no objection in principle to participating in the first two conventions, but had to examine carefully the implications of the fourth convention, as its scope contained multiple normative innovations going well beyond the mere codification of existing customary norms. Oda and Owada (1982). 5 Sakutaro

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In view of the failure of the Second Conference in 1960, the rule of general international law on the extent of the territorial sea remains what it was before the Conference, i.e., the rule of three nautical miles; and the question of jurisdiction within the fishing zone extending beyond the limit of the territorial sea was left unsettled.8

At the Third UN Conference on the Law of the Sea held from 1973 to 1982, however, a proposal for a 12 nautical mile territorial limit gained the support of many countries. It was within this context that Japan enacted in 1977 the Law on Territorial Waters, and set its territorial limit to 12 nautical miles. The reason Japan abandoned its previous 3 nautical mile territorial limit claim before the Third Conference drew to a close has to do with its pressing need to protect its fishermen against foreign fishing fleets operating in waters close to Japan.9 By 1996, Japan and the People’s Republic of China (China) had acceded to the United Nations Convention on the Law of the Sea (UNCLOS).10 UNCLOS allows coastal States to establish an Exclusive Economic Zone (EEZ) beyond and adjacent to their territorial sea of 12 nautical miles, up to 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. Given the foregoing, one has to admit that the Japanese Government was not able to offer opposition against the new development of the law of the sea.

2.2 Japan’s Response to Piracy At the same time, however, Japan has contributed to the codification of the law of the sea, especially in relation to piracy. At the League of Nations Codification Conference of 1925, Mr. Michikazu Matsuda, the then Director-General of the Treaties Bureau of Japan’s Ministry of Foreign Affairs, was elected as Chairperson of the Subcommittee on piracy, and the so-called ‘Matsuda Draft’ was submitted in 1926. In spite of that, the League of Nations Council drove the subcommittee to suspend its work, as the Council did not consider the codification of the law of piracy a priority. Incidentally, the Matsuda Draft stipulated the requirement of ‘private ends’ (Article 1) and the involvement of private vessels (Article 3) to both be structural elements of the international crime of piracy.11 The Harvard Draft Convention and Comment on Piracy states the following: The reason for the startling lack of international case authority and modern state practice is apparent, as soon as one remembers that large scale piracy disappeared long ago and that 8 Ibid., pp. 136–137.When Mauritania extended its territorial sea to 12 miles from the coast according

to its Law No. 67,023 of 21 January 1967, the Government of Japan transmitted its Note Verbale of 24 April 1967, expressing the opposition to the unilateral extension on the part of Mauritania of its territorial waters. Ibid., p. 141. 9 Kuribayashi (2001). 10 UNCLOS came into force for Japan and China on 20 July 1996 and 7 July 1996, respectively. 11 See Harvard Research in International Law, Draft Convention and Comment on Piracy, Comment on Article 3, AJIL, Vol. 26 (Supplement 1932), p. 873.

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S. Sakamoto piracy of any sort or over the high seas is sporadic except in limited areas bordered by states without the naval forces to combat it. Piracy lost its great importance in the law of nations before the modern principles of finely discriminated state jurisdictions and of freedom of the seas became thoroughly established. (emphasis added)12

However, unexpected situations occurred between the late 20th and early 21st century. Since the 1980s, rampant piracy has troubled the international community. Previously, piracy had threatened maritime transit in the Straits of Malacca and Singapore, and has since threatened maritime transit off the coast of Somalia and in the Gulf of Aden. The sea lanes off the coast of Somalia and in the Gulf of Aden link Japan with Europe and the Middle East, and c. 2,000 Japanese-related vessels, including Japanese flag-carrying vessels and flag of convenience vessels operated by the Japanese shipping companies, annually sail along these lanes. No doubt, these lanes are extremely important to Japan. The Japanese Ship-owners’ Association and others have urged the Japanese Government to reinforce its measures against acts of piracy, including through national legislation. In 2009, Japan enacted the Act on Punishment of and Measures against Acts of Piracy (Piracy Act),13 which, among other things, stipulates the protection of not only Japan’s fleet, but those of other countries. The object of the Piracy Act is not limited to solely providing legal grounds for the specific activities by the Maritime Self-Defence Forces for combating the incidents of pirates off the coast of Somalia. The Piracy Act is much broader as to provide for the definition of acts of piracy, enforcement measures against such acts, the criminal jurisdiction of Japan, the punishment of the crime of piracy, and so on. Mr. Koji Tsuruoka, the then Director-General of the International Law Affairs Bureau of Japan’s Ministry of Foreign Affairs provided the following explanation: While, in principle, the acts of piracy under the Piracy Act are the same as those under the UNCLOS, the Piracy Act, as a domestic law, concretizes the concept of acts of piracy. In that sense, the definition of the acts of piracy under the Act is more detailed than those under the UNCLOS.14

On 5 March 2011, the Guanabara, a Mitsui O.S.K. Line tanker registered in the Bahamas and operated only by 24 non-Japanese crew members, was attacked by allegedly Somali pirates. None of the crew was injured, and the four suspects, who claimed to be Somali, were captured by U.S. naval units the following day and transferred to Japan for trial. The Tokyo District Court sentenced two Somali nationals to a ten-year term of incarceration. On 25 February 2013, the same court sentenced another Somali national, whose name had been withheld due to their being under age, indeterminate sentence of five to nine years, in accordance with Article 52 of the Juveniles Act.15 The remaining defendant was sentenced to an eleven-year term on 12 April 2013. Japan spent time and resource to try the individuals involved 12 Ibid.,

Vol. 26, p. 764.

13 Act of 24 June 2009, No. 55; for an English translation, see “Act on Punishment of and Measures

against Acts of Piracy”, Japanese Yearbook of International Law, Vol. 53 (2010), p. 838. 14 Committee on Foreign Affairs and Defence on 2 June, 2009 [171st Diet]. 15 This case was not published in the District Court Reporter, but there is a case commentary in the High Court Reporter (Kosai Hanrei Shu), Vol. 66(4), p. 6. See also Ishii (2015).

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in piratic acts, as it is its duty, as a member of the international community, to suppress piracy and to penalise those who engage in such acts.

2.3 Japan’s Domestic Law on the Law of the Sea 2.3.1 Territorial Sea and International Straits The Third UN Conference on the Law of the Sea adopted UNCLOS in 1982. UNCLOS comprehensively revised the traditional law of the sea and introduced, among other things, the concept of ocean governance for sustainable use of marine resources and the protection of the marine environment. Japan enacted domestic laws for the implementation of UNCLOS from a viewpoint that UNCLOS served the interests of Japan and the international community. As mentioned earlier, in 1977, Japan enacted the Law on Territorial Waters (1977 Law on Territorial Waters). This legislation adopted the 12 nautical mile territorial limit, with the exception of ‘designated areas’. In relation to ‘designated areas’, Article 2 of the Supplementary Provisions in the 1977 Law on Territorial Waters provides that “For the time being, the provisions of Article 1 shall not apply to the Soya Kaikyo [NB., the terms ‘Kaikyo’ and ‘Suido’ mean ‘strait’ in Japanese], the Tsugaru Kaikyo, the Tsusima Kaikyo Higasi Suido, the Tsusima Kaikyo Nisi Suido and the Osumi Kaikyo (including areas of the sea adjacent to these waters and which are recognized as forming respectively integral parts thereof from the point of view of the course normally used for navigation by vessels). The territorial sea pertaining to the designated areas shall be respectively the areas of the sea extending from the baselines to the line 3 nautical miles seaward thereof and to the line drawn connecting with the said line.” There were two reasons behind the adoption of such a qualification. First, it was considered preferable to wait and see whether the new regime of international strait, which was proposed in the Third Conference on the Law of Sea, would be firmly fixed or not, freezing the 3 nautical mile claim for the five straits specifically mentioned. And secondly, under the ‘Three Principles of Denuclearization’, i.e., Japan’s nuclear weapons policy, concerning non-production, non-possession, and non-permission (of entry) of nuclear weapons in Japan (including its territorial waters), Japan had to leave part of the high seas in order to prevent foreign warships carrying nuclear weapons from violating its territorial waters. In 1996, when it ratified UNCLOS, Japan revised its 1977 Law on Territorial Waters, and enacted the Law on Territorial Waters and Contiguous Water Area (1996 Law on Territorial Waters).16 The 1996 Law on Territorial Waters, which provides for 12 nautical mile territorial waters, adopts straight baselines, along with 16 Law

on the Territorial Sea and the Contiguous Zone (Law N. 30 of 1977, as amended by Law No. 73 of 1996), available at https://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDF FILES/JPN_1996_Law.pdf (last accessed 30 June 2020).

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normal baselines (Article 2). Article 2, paragraph 1, of the 1996 Law on Territorial Waters provides that the baseline shall be the low-water line, the straight baseline and the straight line drawn across the mouth or within a bay, or across the mouth of a river. Straight baselines referred to in the preceding paragraph shall be prescribed by Cabinet Order, in accordance with Article 7 of UNCLOS. Furthermore, Article 3 of the 1996 Law on Territorial Waters provides that: “The laws and regulations of Japan (including penal provisions) shall apply with respect to the execution of official duties by public officials of Japan in relation to hot pursuit from within the internal waters or the territorial sea of Japan undertaken in accordance with Article 111 of UNCLOS and the conduct obstructing such execution.” This provision makes possible the extraterritorial application of enforcement laws, such as Japan’s Code of Criminal Procedure, Coast Guard Act, or Customs Law, as well as the penal provisions for obstructive behaviour. In addition, Article 4 of the 1996 Law on Territorial Waters establishes the contiguous zone as a zone in which Japan can take the necessary measures to prevent or punish infringement of its customs, fiscal, immigration, or sanitary laws and regulations within its territory in accordance with Article 33, paragraph 1 of UNCLOS.17 Article 5 of the 1996 Law on Territorial Waters provides that “the laws and regulations of Japan shall apply with respect to the execution of official duties by public officials of Japan in the contiguous zone in relation to measures prescribed in paragraph 1 of the preceding article (including the execution of official duties in relation to hot pursuit from within the contiguous zone pertaining to said execution of official duties undertaken in accordance with Article 111 of UNCLOS) and the conduct obstructing such execution.” On the other hand, however, the designated areas mentioned in the 1977 Law on Territorial Waters were maintained in the 1996 Law on Territorial Waters. Strictly speaking, it follows, therefore, that there is no ‘international strait’ in which the right of transit passage applies in Japan, given that in international straits less than 24 nautical miles in width, Japan adopts a 3 nautical mile territorial sea and leaves the remaining part of the strait as international waters. Therefore, under this system, foreign vessels can enjoy freedom of navigation in portions of designated areas considered international waters, while enjoying the right of innocent passage within the territorial sea portions of the designated areas. In other words, foreign vessels only have the right of innocent passage—not of transit passage—in Japanese straits. The Japanese regime under which foreign vessels within the territorial waters of Japan are regulated arises through a patchwork of separate laws, such as Act on Regulation of Fishing Operations by Foreign Nationals, the Immigration Control and Refugee Recognition Act, and the Law on Navigation of Foreign Ships through the Territorial Sea and International Waters. This is due to the fact that Japan needs to respect the interests protected by each of these laws. Consequently, there is no single piece of Japanese legislation that regulates foreign vessel activities within Japan’s territorial waters in an integrated manner centred on Japan’s sovereignty over its territorial waters. For Japan, its territorial waters are not only a part of its sovereign 17 It

enables Japanese Government to apply its laws and regulations in its contiguous zone.

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territory, but also marine areas for realising its national interest. From this point of view, it is required to add a provision for innocent passage to the 1996 Law on Territorial Waters.

2.3.2 Japanese National Law on the Marine Scientific Research It had been thought that marine scientific research (MSR) was included in the freedom of the high seas in the traditional law of the sea. However, after the introduction of the EEZ regime by UNCLOS, there are new rules which require the consent of the coastal State in coordinating sovereign rights of coastal States to their EEZ and the right of other States in conducting MSR. However, difficulty resides in that it is almost impossible to distinguish seemingly between scientific research and other types of research for resource exploration and exploitation, or for military surveys. Thus, Article 249 of UNCLOS, while providing for certain conditions that States and international organisations should comply with in undertaking MSR in the EEZ or on the continental shelf of coastal States, mostly about the handling of the data collected, makes it a rule that the organs that undertake MSR should ensure that the results are made internationally available as soon as practicable. There is diversity of national legislation and practices in giving consent to MSR for the most important and vast area of EEZ. Japan’s basic stance, as a leading nation on MSR technology, is to grant consent without delay to MSR requests by other States in the Japanese EEZ, provided that the research is to be undertaken solely for peaceful purposes and for the common interests of mankind. For this consideration, Japan has adopted the Guideline for conducting MSR in areas under the national jurisdiction of Japan without penalty in 1996.18 Japan has generally opposed the tightening of MSR regulations. This Guideline requires that MSR by other States and competent international organisations in Japan’s territorial sea and EEZ must be conducted only with the express consent of Japan not less than six months in advance of the anticipated starting date of the MSR.19 . In the EEZ and the continental shelf, where coastal States have sovereign rights over resources, Japan, as a coastal State, may withdraw consent for MSR when the research project is of direct significance to the exploration and exploitation of natural resources, whether living or non-living.20 Japan grants permission, in addition to the conditions clearly stipulated in the MSR provisions of UNCLOS, only under the condition of reciprocity, that is, consent may be granted only if the applying States grant consent to similar Japanese MSR applications in the EEZ and continental shelf of the other State. 18 The

Law of the Sea Bulletins, Consolidated Table of Contents, No. 33, 1997, p. 38.

19 The Guideline for conducting MSR in areas under national jurisdiction of Japan, The Ministry of

Foreign Affairs of Japan, 20 July 1996, paragraphs 1–2. 20 Article 246(5)(a) of UNCLOS.

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A serious defect of the Guideline is the lack of penalties for violations of the conditions for MSR permission. The measures that Japan adopts in such situations are limited, only with a request of suspension or termination of the MSR concerned. The phenomena of such singular cases by Chinese vessels have recently been witnessed in the East China Sea. Article 4 (Improvement of Scientific Knowledge of the Oceans) of Japan’s Basic Act on Ocean Policy21 executed on 20 July 2007 provides that in consideration of the fact that the scientific knowledge of the ocean is indispensable for the proper development and use of the ocean and consideration of the marine environment, the scientific knowledge of the ocean shall be improved. At the same time, Article 19 (Promotion of Development of EEZ) of that Act provides that the Japan shall take necessary measures to prevent the infringement of its sovereign rights in its EEZ. Japan is required to develop its legal system to achieve these dual purposes.

2.4 Japan-China Dispute Over Maritime Boundary Delimitation The East China Sea, the breadth of which is less than 400 nautical miles, lies between Japan and China. In 1968, the UN Economic Commission for Asia and the Far East (ECAFE) conducted marine exploration in the East China Sea, revealing the possibility that its continental shelf may be abundant in oil and natural gas deposits. The exploration of the Shirakaba (Chunxiao in Chinese) oil and gas field, started by China in August 2003, gave rise to an intense dispute between Japan and China over resource development. The East China Sea became a sea of conflict between Japan and China. In addition, Japan and China are engaged in a territorial dispute over the Senkaku Islands (Diaoyu Islands in Chinese), further compounding this situation. Behind this conflict, Japan and China are in dispute as to the proper delimitation of the continental shelf and EEZ. China has advocated the natural prolongation of the continental shelf while Japan has claimed the median line between the two countries’ coastlines as the continental shelf and EEZ boundary. Furthermore, China has opposed Japan’s provisional adoption of the median line in its domestic Law on the Exclusive Economic Zones and the Continental Shelf, while Japan has raised an objection to China’s unilateral oil and gas development in waters close to the Japan-claimed median line. The first and serious conflict over this dispute is concerned with the location of the disputed sea area. Japan argues that the disputed sea area extends over all the waters in the East China Sea where the respective 200 nautical miles claims of China and Japan overlap. Against the Japanese argument, China claims that the disputed sea

21 Cf.

the unofficial English translation of the Basic Act on Ocean Policy (effective 20 July 2007) https://www8.cao.go.jp/ocean/english/act/pdf/law_e.pdf (last accessed 30 June 2020).

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area stretches in the area west of the median line to the Okinawa Trough (boat-shaped basin).22 China has adopted the natural prolongation theory for the continental shelf and has claimed that its sovereign right covers the shelf extending to the Okinawa Trough. Noteworthy is the fact that China operates an offshore platform to fully exploit an oil and gas field on the Chinese side, about 4.5 km from the median line (the so-called Chunxiao gas field problem). In contrast, Japan has claimed that the Okinawa Trough is just a dent, and does not represent any physical limit of the continental shelf, and that the median line between the two States should be the basis for delimiting their boundary in the East China Sea that is less than 400 nautical miles wide between them. This means that Japan sees an overlap of the Japanese and Chinese 200 nautical mile EEZs as being in dispute, and views the median line as a provisional boundary for a transitional period until the two States delimit a final boundary by agreement. Japan has adopted the position that it will maintain its title under international law to its EEZ or continental shelf extending up to 200 nautical miles from its baseline until a bilateral boundary is delimited by agreement.23 This position could be taken as affecting the significance of the median line as provided by the Japanese domestic Law on the Exclusive Economic Zones and the Continental Shelf. As for this point, Japan has explained that its law unilaterally sets Japan’s law enforcement limits and does not affect its external position. UNCLOS does not necessarily require any single boundary covering both the EEZ and continental shelf. This is because the legal title to the EEZ is based on the standard distance of 200 nautical miles, while the title to the continental shelf depends on the continuity or natural prolongation of the onshore geological structure (Articles 57 and 76 of UNCLOS). In fact, the continental shelf is characteristically different to the EEZ. The continental shelf belongs to coastal States ipso facto and ab initio, and the legal title to the shelf does not depend on effective or nominal occupancy, or explicit declarations. In contrast, explicit acts are required for establishing the EEZ. In waters where the EEZ is established, the continental shelf extending up to 200 nautical miles from the coastline is covered by the EEZ. Only any continental shelf portion beyond the EEZ boundary is related to the natural prolongation theory. For these reasons, States have tended to delimit common boundaries for EEZs and continental shelves. In the case concerning the Maritime Delimitation and Territorial Questions between Qatar and Bahrain, the International Court of Justice (ICJ) stated that: The Court observes that the concept of a single maritime boundary does not stem from multilateral treaty law but from State practice, and that it finds its explanation in the wish of States 22 The East China Sea is the area from latitude of 33o 17’ North to the southern tip of Ryukyu Islands

or the northern tip of Taiwan. Its average depth of water is about 50 metres and the continental shelf, which reaches a depth of less than 100 metres, extends eastward almost up to the Okinawa Trough. 23 In fact, the Japanese government expressed regret at the new Chinese gas field, Hakkaku-tei, located in the distant area of the Chinese side of the median line. We can take this Japanese attitude as expressing externally its intention to insist that the area extending up to 200 nautical miles is under dispute. Yumi Nishimura (2006).

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S. Sakamoto to establish one uninterrupted boundary line delimiting the various -partially coincidentzones of maritime jurisdiction appertaining to them.24

At least, China, which holds to the natural prolongation theory, hopes to delimit only its continental shelf boundary. With the 200 nautical mile EEZ regime having been established, however, it may be doubted whether it is pragmatic to delimit only a continental shelf boundary while shelving the EEZ boundary delimitation. On the EEZ, Paragraph 3 of Article 56 of UNCLOS provides that, “The rights set out in this article with respect to the sea-bed and subsoil shall be exercised in accordance with Part VI.” Citing the paragraph, some Chinese experts argue that the continental shelf regime takes precedence over the EEZ regime, as far as the seabed and subsoil are concerned, and that the natural prolongation theory has priority over any other theory for delimitation of boundaries.25 But this paragraph, like Paragraph 8 of Article 76, means that Part VI should be given priority with regard to the continental shelf limit extension and other problems peculiar to the continental shelf regime, rather than to boundary delimitation. Otherwise, it would be meaningless for UNCLOS to have identical provisions on EEZ and continental shelf delimitation (Articles 74 and 83) as noted above. In fact, Paragraph 10 of Article 76 provides that, “The provisions of this article are without prejudice to the question of delimitation of the continental shelf between States with opposite or adjacent coasts.” While Japan has EEZ delimitation as well as continental shelf delimitation in mind, China sticks to continental shelf delimitation. Consequently, how is one to interpret the significance of UNCLOS adopting the EEZ and continental shelf regimes in parallel? The problem emerged at a relatively early stage. Former ICJ Judge Shigeru Oda made the following points: The first question which springs to mind is whether the seabed within 200-miles from the coast should be incorporated in the regime of the exclusive economic zone or whether it should come under a separate regime of the continental shelf. (p. 106) A question which may be asked is whether it is legitimate to suggest two separate regimes for the same offshore areas, i.e., the economic zone for the superjacent waters and the continental shelf for the seabed, as a result of drawing separate boundaries for each between the same neighboring countries. Is it permissible to have the seabed as part of the continental shelf of one State while the superjacent waters above it are under the jurisdiction of the other State as part of the latter’s economic zone? 24 I.C.J. Reports 2001, p. 93, paragraph 173. In the judgment of the Case concerning Maritime Delimitation in the Area between Greenland and Jan Mayen, the ICJ recognised no existence of agreements on the maritime boundary between the parties concerned, and separately examined the effect of Article 6 of the Convention on the Continental Shelf for delimiting boundaries of continental shelves and that of customary international law for fishery zones. Cf . I.C.J. Reports 1993, paragraph 41. Some analyse this judgment and criticise the ICJ for missing an opportunity to pronounce on the process toward adopting a singular boundary for continental shelf and EEZ, even when the parties concerned did not ask it to do so. Cf. M.D. Evans, “Case Concerning Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark vs. Norway),” International and Comparative Law Quarterly, Vol. 43 (1994), p. 702. 25 For example, Gao (2010), Cai (2006).

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If, on the other hand, the boundaries of the continental shelf on the seabed and the exclusive economic zone in the superjacent waters are to be parallel, further queries may be raised. Firstly, does the boundary of the continental shelf have priority over the boundary of the exclusive economic zone on the ground that its regime came into being first?26 (p. 107, paragraphs 1 and 2)

The answer to this question is that “the continental shelf within the EEZ should be interpreted as being integrated into the EEZ” as indicated by Judge Oda’s Dissenting Opinion on the Tunisia/Libya Continental Shelf case in 1982: Even if the jurisdiction of the coastal State is exercised separately for the purpose of exploitation of resources—mineral resources on or under the continental shelf, on the one hand, and living resources within the exclusive economic zone, on the other—is it feasible to assume that the area in which such jurisdiction is exercised can or should be different, depending on what resources are exploited27 ? […] Despite the resultant vagueness, there is one firm conclusion which has already been hinted at above, but which now stands fully confirmed by the identity of Articles 74 and 83, an identity which even the more complex earlier formulae strove always to maintain. This conclusion is that the principles and rules of international law applicable to the delimitation of the continental shelf will not be different from those applicable to the delimitation of the exclusive economic zone.28

As noted by Judge Oda, the concept of the natural prolongation for the continental shelf has lost its significance along with the introduction of the standard EEZ distance of 200 nautical miles.29 This has become clearer through ICJ decisions. ICJ decisions indicate that although no specific criterion has been set for continental shelf delimitation, the median line is one of the criteria for two States with opposite coasts. In other words, the natural prolongation theory is not decisive for continental shelf delimitation, and its influence has been waning throughout subsequent ICJ decisions. As the notion of EEZ is now normatively established, the notion of continental shelf covered by the 200 nautical mile distance criterion has been subsumed into the EEZ regime.30 Under such circumstances, the natural prolongation theory cannot be used to bring about any equitable solution to delimitation of a maritime boundary in waters that are less than 400 nautical miles wide between two States with opposite coasts. Thus, for the disputes between two States with opposite 26 Oda

(1979). Reports 1982, Dissenting Opinion of Judge Oda, paragraph 126. 28 Ibid., paragraph 145. Judge Evensen, in his Dissenting Opinion, felt that it was, “hardly conceivable in the present case to draw a different line of delimitation for the exclusive economic zone and for the continental shelf.” Cf . I.C.J. Reports 1982, Dissenting Opinion of Judge Evensen, paragraph 10. 29 However, in his dissenting opinion for the Case concerning Maritime Delimitation in the Area between Greenland and Jan Mayen (1993), Judge Oda seems to have thought it possible to draw different lines for the EEZ and the continental shelf, meaning that he was in favour of drawing not a singular line, but distinct lines for the EEZ and the continental shelf. Cf . I.C.J. Reports 1993, Dissenting Opinion of Judge Oda, paragraphs 72–74. 30 The ICJ, however, concludes, “this does not mean that the concept of the continental shelf has been absorbed by that of the exclusive economic zone; it does, however, signify that greater importance must be attributed to elements, such as distance from the coast, which are common to both concepts.” I.C.J. Reports 1985, p. 33, paragraph 33. 27 I.C.J.

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coasts, the ICJ has tended to set a median line provisionally and modify the line in consideration of specific circumstances relevant to the parties.31 In spite of this trend in ICJ jurisprudence, China has persistently insisted on the natural prolongation theory as the appropriate criterion for continental shelf delimitation, and there has subsequently been no agreement with Japan on delimitation. As noted earlier, Japan and China are involved in a protracted territorial dispute over the Senkaku (Diaoyu in Chinese) Islands. It may not be easy for the two countries to agree on delimitation without resolving this issue. We may be able to conclude that since negotiations on delimitation are certain to be protracted, the two countries have provisionally prioritised the joint development of natural resources in the East China Sea. However, Japan and China have also been at odds over specific waters for such joint development. Japan regards the overlap of the Japanese and Chinese 200 nautical mile EEZs as remaining in dispute, and has demanded that the two countries conduct joint development in waters covering the overlap across the median line. In contrast, China, while also regarding waters between the median line and the Okinawa Trough as remaining in dispute, has called for joint development in waters east of the median line. Its position has been that waters west of the median line are available for China’s sole—not joint—development. In its decision on the case concerning the Maritime Delimitation in the Area between Greenland and Jan Mayen, however, the ICJ stated, Maritime boundary claims have the particular feature that there is an area of overlapping entitlements, in the sense of overlap between the areas which each State would have been able to claim had it not been for the presence of the other State.32

Given that EEZ or continental shelf delimitation problems emerge in relation to coastal States’ overlapping entitlements, Japan’s claim over waters in dispute, based on the area of overlapping EEZ entitlements that are wider than the China-claimed area, may be viewed as more persuasive. Joint development of natural resources is not necessarily a universal remedy to disputes. But it has been successful for some waters where maritime boundaries have proven difficult to delimit. Therefore, joint development is worthy of consideration. Negotiations to set up a joint development zone may not be easy. Nevertheless, it is significant that Japan and China have continued such negotiations within their general framework of friendship. On 18 June 2008, Japan and China issued a Japan-China Joint Press Statement concerning Cooperation between Japan and China in the East China Sea, in which it was stated that: In order to make the East China Sea, where the sea boundary between Japan and China has not been delimitated, a ‘Sea of Peace, Cooperation and Friendship,’ Japan and China have agreed, through serious consultations based on the common understanding between leaders of the two countries achieved in April 2007 as well as their new common understanding achieved 31 This tendency may also be witnessed in relation to bilateral agreements. For instance, having analysed 136 bilateral maritime boundary delimitation agreements, J.I. Charney concludes that the equidistance principle plays a crucial role in these agreements. Charney and Alexander (1993). 32 I.C.J. Reports 1993, paragraph 59.

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in December 2007, that the two countries cooperate with each other without prejudice to the legal positions of both countries during the transitional period pending agreement on the delimitation and taken the first step to this end. Both countries will continue consultations further.33

This statement consists of two parts/Understandings: one relating to the parties’ understanding on joint development in the East China Sea, while the other to the parties’ understanding on the development of the Shirakaba (Chunxiao in Chinese) oil and gas field. In relation to the former: The two sides proceed with the following as the first step of the joint development between Japan and China in the East China Sea. 1. The joint development zone shall be the area bounded by straight lines connecting the following points in the sequence given below: (1) 29o 31’ North125o 53’30” East (2) 29o 49’ North125o 53’30” East (3) 30o 04’ North126o 03’45” East (4) 30o 00’ North126o 10’23” East (5) 30o 00’ North126o 20’00” East (6) 29o 55’ North126o 26’00” East (7) 29o 31’ North126o 26’00” East 2. Both sides will, through joint exploration, select sites for joint development by mutual agreement and conduct joint development at the sites based on the principle of mutual benefit. Details will be decided by both sides through consultation. 3. The two sides will make efforts to promptly conclude, in accordance with their respective domestic procedures, a bilateral agreement necessary for the implementation of the joint development. 4. The two sides will continue consultations in order to attain joint development in other waters of the East China Sea as soon as possible.34

It is mutually understood, of course, that an implementing agreement is to be concluded in due course to specify the necessary terms of joint development, including the rates of profit and costs of production. What is noteworthy is the fact that although Japan and China concluded two understandings, they have made no effort to draft common English versions.35 As a result, there are two different English texts for each Understanding, which may cause slight differences of interpretation between the two parties. A case in point is the respective titles of one of the understandings: according to the Japanese Ministry of Foreign Affairs one of the Understandings bears the title ‘Understanding on the Development of the Shirakaba (Chunxiao in Chinese) oil and gas field’, while, on the other hand, the Chinese Ministry of Foreign Affairs has opted for ‘Understanding on the Participation of Japanese Legal Persons in the 33 Available

at https://www.mofa.go.jp/files/000091726.pdf (last visited on 30 June 2020).

34 Ibid. 35 In China, the title of this agreement is the [Sino-Japanese] Principled Consensus. Cf. http://www.

fmprc.gov.cn/eng/xwfw/s2510/t448632.htm (last accessed 20 August 2008)

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Development of Chunxiao Oil and Gas Field in Accordance with Chinese Law’.36 From China’s version of the English title, it is evident that this understanding does not fall into the category of joint development in the classical sense. At the same time, China could be seen as having virtually conceded the Japan-claimed median line, at least in so far as this understanding refers to the currently existing Shirakaba gas field. Such reference seems to imply that China should abstain from claiming sovereign rights beyond a hypothetical median line. In spite of the existence of the without prejudice clause in the Agreement, the absence of common English texts for those understandings possibly pertains to differences in the respective views of the two parties. At least, it represents the fragile aspect of this agreement. Reaching such an agreement on joint development was undoubtedly a long and winding road for both Japan and China. While this agreement is an achievement founded on prudent political decisions and a consequence of four years of formidable negotiations between the parties, Japan and China commenced negotiations of the implementing agreement in July 2010, however, China unilaterally announced the postponement of the second round of negotiations. Still, the East China Sea is a sea of conflict; not of peace. Under such circumstances, China accelerated its development activities of natural resources in the East China Sea, and Japan has confirmed that there are 16 structures in total on the Chinese side of the geographical equidistance line between Japan and China.37 The Government of Japan issued in strong terms its demand for China to halt its unilateral activities in the East China Sea and its efforts to create faits accomplis. Japan continues to seek the prompt resumption of discussions on the 2008 Agreement and its early implementation.38 Article 83 of UNCLOS provides that “Pending agreement as provided for in paragraph 1, the State concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement.” In the arbitration regarding the delimitation of the maritime boundary between Guyana and Suriname in 2007, the Arbitral Tribunal ruled that “Guyana also violated its obligation to make every effort to enter into provisional arrangements by its conduct leading up to the CGX incident, Guyana had been preparing exploratory drilling for some time before the incident, and should have, in a spirit of cooperation, informed Suriname directly

36 The content is as follows: “Chinese enterprises welcome the participation of Japanese legal persons

in the development of the existing oil and gas field in Chunxiao in accordance with the relevant laws of China governing cooperation with foreign enterprises in the exploration and exploitation of offshore petroleum resources.” 37 Available at https://www.mofa.go.jp/a_o/c_m1/page3e_000356.html (last accessed 25 December 2019). 38 Available at https://www.mofa.go.jp/press/kaiken/kaiken1e_000011.html (last accessed 25 December 2019).

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of its plans.”39 Since China is engaging not in exploration but in exploitation, its activities are clearly in violation of Article 83 (3) of UNCLOS.

2.5 The Whaling Issue 2.5.1 Whaling in the Antarctic Case On 31 May 2010, Australia filed suit with the ICJ, alleging that the whaling operations conducted by Japan in the Southern Ocean were not for research purposes and that they actually amounted to commercial whaling, which was in violation of Japan’s obligations under the International Convention for the Regulation of Whaling (ICRW), and, more specifically, in relation to its membership to the International Whaling Commission (IWC) and its Moratorium on commercial whaling.40 Australia considered its own and Japan’s declarations of acceptance of the ICJ’s compulsory jurisdiction based on Article 36, paragraph 2 of the Statute of the ICJ as the basis of the Court’s jurisdiction.41 In the case of a unilateral application, the respondent would typically raise preliminary objections, which would contest the ICJ’s jurisdiction as well as the case’s admissibility, in order to prevent a trial from being conducted on the merits of the dispute between the parties. However, Japan did not raise preliminary objections; rather, it resorted to litigation tactics by contesting the jurisdiction jointly with the merits. On the other hand, Australia did not seek provisional measures to suspend the contested operations. From this course of action, it seems that both Australia and Japan preferred an early decision on the merits so as not to harm the generally friendly relations between the two. Save for Australia’s claim that Japan had not acted in accordance with its obligations under Schedule (30) (main sentence 6) of the ICRW (NB., an integral part of the ICRW), the ICJ upheld all of Australia’s claims, finding that: the special permits granted by Japan in connection with the Secord Phase of Japan’s Whale Research Programme under Special Permit in the Antarctic (JARPA II) do not fall within the provisions of Article VIII(1) of ICRW (main sentence 2); the special permits are in violation of Schedule (10)(e) (main sentence 3); catching fin whales is in violation of Schedule (10)(d) (main sentence 4) and (7)(b) (main sentence 5); and that Japan must revoke any extant authorisation, permit or licence that was granted in relation to JARPA II, and refrain from granting any further permits in pursuance of JAPRA II (main sentence 7).42 39 In

the Matter of an Arbitration Between: Guyana and Suriname, Award of the Arbitral Tribunal, 17 September 2007, p.136, paragraph 477. 40 Application Instituting Proceedings Submitted by the Government of Australia, May 31, 2010, paragraph 2. 41 Ibid., paragraph 4. 42 Every main sentence of the Judgement was decided by a majority of 12 to 4, except for the main sentence 3. Those in favour were President Tomka, Vice-President Sepulvar-Amor, Judges Keith,

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Regarding Article VIII of ICRW, the ICJ stated, “[t]he Court notes that Article VIII is an integral part of the Convention. It therefore has to be interpreted in light of the object and purpose of the Convention, including the Schedule,”43 then upheld the claim of New Zealand (intervening in support of Australia) that “[i]t ‘do[es] not constitute a blanket exemption […],’”44 and dismissed Japan’s initial claim that Article VIII was a freestanding article.45 On the other hand, while the crucial question as to whether the object and the purpose of the ICRW were cetacean conservation (as Australia claimed) or the sustainable use of cetacean resources (as Japan claimed) was at issue during the trial, the ICJ supported neither of the claims by asserting that, “[a]mendments to the Schedule and recommendations by the International Whaling Commission (IWC) may put an emphasis on one or the other objective pursued by the Convention, but cannot alter its object and purpose”46 and “the Court observes that neither a restrictive nor an expansive interpretation of Article VIII is justified.”47 This means that the ICRW objective as to the “orderly development of the whaling industry,” upon which Japan had insisted, remained intact. The ICJ, as it were, adjudicated while discerning the limits of interpretative theory. Moreover, “whether the killing, taking and treating of whales pursuant to a requested special permit is for purposes of scientific research cannot depend simply on that State’s perception,”48 the Court adopted the position that the purpose of whaling, be it for scientific research or other purposes, could be objectively determined.49 In this case, the Court was of the view that, “the two elements of the phrase ‘for purposes of scientific research’ are cumulative. As a result, even if a whaling programme involves scientific research, the killing, taking and treating of whales pursuant to such a programme does not fall within Article VIII unless these activities are ‘for purposes of’ scientific research.”50 This two-element argument was the position of Australia as expressed in its Memorial.51 Thus, regarding the first element (namely, ‘of scientific research’) the Court stated that it did not “consider it necessary

Skotnikov, Cançado Trindade, Greenwood, Xue, Donoghue, Gaja, Sebutine, Bhandari, and Judge ad hoc Charlesworth. Those against were Judges Owada, Abraham, Bennouna, and Yusuf. ICJ, Whaling in the Antarctic (Australia v. Japan: New Zealand Intervening), Merits, Judgment of 31 March 2014, I.C.J. Reports 2014, pp. 298–300, paragraph 247. 43 Ibid., pp. 250–251, paragraph 55. 44 Ibid, p. 250, paragraph 54. 45 Whaling in the Antarctic (Australia v. Japan: New Zealand Intervening), Counter-Memorial of Japan, p. 324, paragraph 7.8. 46 Judgment, p. 251, paragraph 56. 47 Ibid, p. 252, paragraph 58. 48 Ibid, p. 253, paragraph 61. 49 Ibid, p. 254, paragraph 66. 50 Ibid, p. 255, paragraph 71. 51 Whaling in the Antarctic (Australia v. Japan), Memorial of Australia, Written Proceedings of 9 May 2011, I.C.J. Reports 2011, pp. 155–156, paragraph 4.38.

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[…] to offer a general definition of ‘scientific research,’”52 and thus the definition of the term was assumed not to be at issue. On the other hand, the second element (namely, ‘for purposes of’) was held to denote specific study criteria, on which the Court conducted an in-depth discussion. The ICJ thus held that, “the expanded use of lethal methods in JARPA II […] is difficult to reconcile with Japan’s obligation to give due regard to IWC resolutions and Guidelines […].”53 As its conclusion, the Court held that, “JARPA II involves activities that can broadly be characterized as scientific research (see paragraph 127 above), but […] the evidence does not establish that the programme’s design and implementation are reasonable in relation to achieving its stated objectives. The Court concludes that the special permits granted by Japan for the killing, taking and treating of whales in connection with JARPA II are not ‘for purposes of scientific research’ pursuant to Article VIII, paragraph 1, of the Convention,”54 and are thus in violation of Article VIII, paragraph 1. In view of the above two-element argument, the ICJ examined the two respective elements of JARPA II, its design and its implementation. In the words of Judge Owada, the Court “provides no explanation as to why it is legitimate or appropriate for the Court to expand the scope of the review by engaging in the examination of these substantive aspects of the JARPA II programme.”55 The Court held this standard of review to be objective, but as Judge Abraham pointed out, the term ‘for purposes of’ expressed the intention or the objective of the study design, and so could not be anything but subjective. Assuming that the standard of objectivity related only to the term ‘scientific research,’ and that ‘for purposes of’ were subjective, at the stage where the term ‘for purposes of’ was taken into account, the Court ought to have respected the intentions of the Japanese Government as such.56 This argument certainly appears to have located the central problem. In any case, it is clear that this extremely artificial dichotomy played a decisive role in the eventual judgment. However, in terms of whether the special permits that a country grants reasonably satisfy the conditions of Article VIII of ICRW, the standard of review should have taken the term ‘for purposes of scientific research’ as a unified phrase. The ICJ did not give a clear explanation as to why such a separation was possible or necessary for interpreting this term. Certainly, the so-called ‘cumulative,’ two-element argument accepted by the ICJ was extremely artificial. However, by separating ‘scientific research’ from the rest of the words in the phrase ‘for purposes of scientific research,’ it can be argued that, for the first time, the Court was able to direct the prohibition of JARPA II, which had established large-scale capture via lethal means, without denying the right to 52 Judgment,

p. 258, paragraph 86. p. 271, paragraph 144. 54 Ibid, p. 293, paragraph 227. 55 Whaling in the Antarctic (Australia v. Japan: New Zealand Intervening), Judgment, Dissenting Opinion of Judge Owada, pp. 313–314, paragraph 32. 56 Whaling in the Antarctic (Australia v. Japan: New Zealand Intervening), Judgment, Dissenting Opinion of Judge Abraham, p. 329, paragraph 32. 53 Ibid,

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conduct research whaling, as recognised by Article VIII of ICRW itself. On the other hand, the ICJ upheld the research versus commercial whaling dichotomy, and ruled that research whaling—due to its exclusion from Article VIII(1)—violated Schedule (10)(e) on the commercial whaling Moratorium. However, the soundness of this point is uncertain, primarily because, as Judge Owada stated in his dissenting opinion, “Even if JARPA II contained some defects as a programme for purposes of scientific research, that fact in itself would not turn these activities into activities for commercial whaling.”57 In any event, after the Judgment, Mr. Koji Tsuruoka, the Agent of Japan, stated, “Japan is disappointed and regrets that the Court ruled that JARPA II by Japan did not fall within Article VIII, paragraph 1, of the ICRW. However, Japan will abide by the Judgment of the Court as a State that places a great importance on the international legal order and the rule of law as a basis of the international community.”58

2.5.2 Resuming of Commercial Whaling On 26 December 2018, the Chief Cabinet Secretary, Mr. Suga announced that, Japan decided, towards commercial whaling to be resumed in July 2019 after a 30-year absence, to withdraw from the ICRW, in line with Japan’s basic policy of promoting sustainable use of aquatic living resources base on scientific evidence. The IWC has a dual mandate under the ICRW, that is, conservation of whale stocks and orderly development of the whaling industry. Although scientific evidence has confirmed that certain whale species/stocks of whales are abundant, those member States that focus exclusively on the protection of whales, refused to agree to take any tangible step towards reaching a common position that would ensure the sustainable management of whale resources.59

Furthermore, at the sixty-seventh meeting of the IWC in September 2018, according to Mr. Suga, the orderly development of the whaling industry, which is clearly mentioned in the ICRW, was not taken into account at all during deliberations, and this suggests that it is no longer possible for States with opposing views to co-exist within the IWC. Consequently, Japan was left with no option but withdraw. Anti-whaling IWC member States have remained steadfast in their zero whaling quota position, regardless of whatever scientific data or legal argumentation is advanced by Japan. Such States seek to impose their ‘no compromise, zero tolerance’ view on Japan and other States in favour of commercial whaling. At the same time, Japan’s resumption of commercial whaling is likely to attract accusations that Japan is failing to meet its obligation under Article 65 of UNCLOS. Article 65 provides that “States shall co-operate with a view to the conservation 57 Supra

note 45, p. 320, paragraph 49. Court of Justice, Whaling in the Antarctic (Australia v. Japan: New Zealand Intervening), Remarks by the Agent of Japan, Koji Tsuruoka, March 31, 2014. 59 Statement by Chief Cabinet Secretary, December 26 2018, available at https://japan.kantei.go.jp/ 98_abe/decisions/2018/_00008.html (last accessed 30 June 2020). 58 International

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of marine mammals and in the case of cetaceans shall in particular work through the appropriate international organizations for their conservation, management and study.” As Professor Ted McDorman rightly points out, Article 65 includes a competency clause relating to marine mammals within EEZ, and a cooperation clause, which applies to all marine mammals but which specifically mentions cetaceans.60 In accordance with Article 65 of UNCLOS, can Japan’s resumption of commercial whaling be said to fulfil its obligation to cooperate with respect to the conservation of marine mammals? Would Japan’s potential participation in IWC’s Science Committee as observer, meet the obligation to work “through the appropriate international organizations for their conservation”? Further, there may be an issue as to whether Japan fulfils its obligation of cooperation on the conservation of marine mammals by just fulfilling its obligation to cooperate for ‘management and study.’ As UNCLOS provides for compulsory arbitration of disputes concerning its provisions, the possibility exists that the anti-whaling bloc of countries could instigate proceedings against Japan, claiming that Japan’s commercial whaling violates UNCLOS. In that case, they may claim that Japan violates not only Article 65 but Article 194(5) of UNCLOS, which provides that “the measures taken in accordance with this Part shall include those necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life.” It may be argued that Japan’s commercial whaling is operated in its territorial waters and EEZ, and that, therefore, such activity neither harms nor benefits any other States. However, this argument no longer resonates in international fora. In the 2014 Whaling in the Antarctic case, resulting in a decision against Japan, the ICJ recognised Australia’s locus standi by accepting its claim that every State that is party to UNCLOS has a common interest in adhering to the obligations under UNCLOS as well as the regime derived thereof. If Japan were sued, it would raise preliminary objections to the jurisdiction of arbitration by invoking Article 297(3)(a) of UNCLOS.61 In July 2019, after its withdrawal came into effect on 30 June 2019, Japan resumed its whaling within Japan’s territorial sea and its EEZ, and ceased the taking of whales in the Antarctic Ocean/the Southern Hemisphere. This whaling is conducted in accordance with international law and within the catch limits calculated in accordance with the method adopted by the IWC in order to avoid negative impact on cetacean resources. However, there remains the possibility of international adjudication, for instance, under mandatory arbitration as set out in UNCLOS.

60 McDorman

(1998).

61 Article 297(3)(a) provides that “Disputes concerning the interpretation or application of the provi-

sions of this Convention with regard to fisheries shall be settled in accordance with section 2, except that the coastal State shall not be obliged to accept the submission of such settlement of any dispute relating to its sovereign rights with respect to the living resources in EEZ or their exercise, including its discretionary powers for determining the allowable catch, its harvesting capacity, the allocation of surpluses to other States and the terms and conditions established in its conservation and management laws and regulations.”

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On 11 December 2019, the 199th Session of the Diet passed an amendment bill which seeks to provide State support for promoting technologies related to catching and processing whales in an effort to wean commercial whaling off public subsidies. The aim of this amendment bill as lawmaker-initiated legislation is apparently in recognition to the fisheries industry, which fears possible reductions in the State funding it is allocated.

2.6 Conclusion As the foundation of the maritime order, UNCLOS has taken the approach of dividing the oceans into discrete zones to determine the rights and obligations of coastal States and other States vis-à-vis those waters. It has also created separate regulatory regimes governing navigation, fishing, maritime resource development, marine conservation, and scientific research. In international waters, enforcement of regulations follows the flag state doctrine. Yet UNCLOS itself affirms the need for unified regulation in its preamble, which states that “the problems of ocean space are closely interrelated and need to be considered as a whole.” It was the inability of regional fishery authorities to control illegal, unreported, and unregulated (IUU) fishing on the high seas that led to the conclusion of the Agreement on Port State Measures in 2009, which expanded port State jurisdiction over foreign vessels engaged in illegal fishing. Here we witness a further attempt to unify international marine regulation through a coordinated effort to keep IUU fishing off the market. On 19 June 2015, the UN General Assembly adopted a resolution (69/292) on the “development of an international legally binding instrument under the UNCLOS on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction.”62 It calls for international negotiations to address, together and as a whole, marine genetic resources, including the sharing of benefits; areabased management tools, including marine protected areas; environmental impact assessments; and capacity building and transfer of marine technology. Thus, the UN campaign began to put together an international agreement on marine biological diversity beyond areas of national jurisdiction, (BBNJ). This effort began with the formation of a preparatory committee, which met on four occasions between March 2016 and July 2017. In the ‘non-paper on elements of a draft text’ issued at the final meeting of the preparatory committee, the committee chair offered an extensive compilation of ideas, proposals, and options for a new agreement, including a host of matters on which the delegations had failed to reach consensus. For example, with respect to the scope of the instrument, there was disagreement as to whether it should encompass just the seabed beyond national jurisdiction or both the seabed and high seas, and whether it should apply only to in situ marine genetic resources (MGRs) (in their original habitat) or also to ex situ resources (such as genetic material stored in gene 62 A/RES/69/292,

pp. 1–3.

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banks and laboratories) and even in silico resources (such as information in databases and resources created through computer simulations). At an even more fundamental level, opinion remains sharply divided as to whether the governing principle ought to be the freedom of the high seas or the common heritage of mankind. On 24 December 2017, the UN General Assembly adopted Resolution 72/249, according to which the Assembly ‘decides to convene an intergovernmental conference, under the auspices of UN, to consider the recommendations of the Preparatory committee on the elements and to elaborate the text of an internationally binding instrument under the Convention’.63 The first session of the Intergovernmental Conference (IGC) on BBNJ took place between 4 and 17 September 2018. At the time it was decided that three more sessions would be held by the first half of 2020. As the IGC proceeds, it will receive close scrutiny to see how the pursuit of new common goals, namely, the conservation and sustainable use of marine biodiversity, impacts the framework for separate regulatory regimes and how the existing maritime order is restructured as a result. Indeed, the protection of marine BBNJ is a crucial issue for the whole of mankind.64 Article 2 of the Basic Act on Ocean Policy in Japan provides that “the development and use of the oceans are the basis of existence for the economy and society of our State.” In contemporary times, whilst the Japanese economy relies less on fisheries, the oceans—including the conservation and management of the living resources and the protection and preservation of the marine environment—remains crucial to Japan. For this reason, the development of the international maritime order must remain of crucial importance to Japan. As a party to UNCLOS, Japan must make all efforts to promote robust and balanced ocean governance, and must remain a key actor, at the forefront of global efforts.

References Cai, Y. (2006). International law principles of continental shelf delimitation and Sino-Japanese East China Sea disputes (p. 27). World Maritime University Dissertations. Retrieved June 30, 2020, from https://commons.wmu.se/cgi/viewcontent.cgi?referer=&httpsredir=1&article= 1161&context=all_dissertations. Charney, J. I., & Alexander, L. M. (Eds.). (1993). International maritime boundaries (Vol. I, p. xlii). Martinus Nijhoff. Churchill, R. R., & Lowe, A. V. (1999). The law of the sea (3rd ed., p. 77) Juris Publishing Inc. Gao, J. (2010). The Okinawa trough issue in the continental shelf delimitation disputes within the East China Sea. Chinese Journal of International Law, 9(1), 143–177. Hanawa, A. (1978). Japanese waters from a few historical points of view. Journal of Faculty of Engineering of Tokyo Polytechnic University, 1, 5. Ishii, Y. (2015). M/V Guanabara: Japan’s first trial on piracy under the Anti-Piracy Act. Maritime Safety and Security Law Journal, 1, 45–55.

63 UNGA 64 Ricard

Res 72/249 (24 December 2017) UN Doc A/RES/72/249, paragraph 1. (2018).

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Kuribayashi, T. (2001). The development of law of the sea and Japan (in Japanese). In Japanese Society of International Law (Ed.) Japan and centennial of reception of international law (Vol. 3, p. 10) Sanseido. (Sea). McDorman, T. L. (1998). Canada and Whaling: An analysis of article 65 of the law of the sea convention. Ocean Development & International Law, 29, 179 and 181–182. O’Connell, D. P. (1982). The international law of the sea (Vol.I, pp. 20–22) I. A. Shearer (Ed.). Clarendon Press. Oda, S. (1979). The international law of the resources of the sea (pp. 106–108). Sijhoff & Noordhoff. Oda, S., & Owada, H. (1982). The practice of Japan in international law 1961–1970 (p. 109). University of Tokyo Press. Ricard, P. (2018–2019). Marine biodiversity beyond national jurisdiction: The launch of an intergovernmental conference for the adoption of a legally binding instrument under the UNCLOS. Maritime Safety and Security Law Journal (4), 102. Yachi, S. (1930). The Problem of the breadth of territorial water in the first Congress of the Codification of International Law (in Japanese). Journal of International Law, 29(10), 10–13.

Part II

Implementation

Chapter 3

The United Nations Convention on the Law of the Sea and China’s Practice Yongming Jin

3.1 Introduction The prominent sources of written laws and treaties in the modern legal system on the sea are the 1958 Geneva Conventions on the Law of the Sea and the United Nations Convention on the Law of the Sea (UNCLOS).1 Regarding their inter-relationship, 1 The

modern system on the law of the sea herein specially refers to written laws or treaties on the basis of compiling customary international law. Among them, the Geneva Conventions on the Law of the Sea includes four conventions which are Convention on the Territorial Sea and the Contiguous Zone (adopted on April 29, 1958 and became effective as from Sept 10, 1964), Convention on the High Seas (adopted on April 29, 1958 and became effective as from Sept 30, 1962), Convention on Fishing and Conservation of the Living Resources of the High Seas (adopted on April 29, 1958 and became effective as from Mar 29, 1966), Convention on the Continental Shelf (adopted on April 29, 1958 and became effective as from June 10, 1964) and Optional Protocol of Signature Concerning the Compulsory Settlement of Disputes (adopted on April 29, 1958 and became effective as from Sept 30, 1962). See International Law Teaching and Research Office of Law Department of Peking University (editor): Compilation of Materials on the Law of the Sea, the People’s Publishing House, 1974 Version, pp. 197–263. In the First UN Conference on the Law of the Sea, besides the four Geneva conventions on the law of the sea, the Optional Protocol of Signature concerning the Compulsory Settlement of Disputes was also adopted, but it is not a part of four Geneva Conventions on the Law of the Sea because its Article 5 sets forth that this Protocol shall remain open for signature by all States who become Parties to any Convention on the Law of the Sea adopted by the United Nations Conference on the Law of the Sea and is subject to ratification where necessary, according to the constitutional requirements of the signatory States. This chapter is a research outcome of a major project on Marine Exploitation and Utilization System under the Framework of the Law of the Sea funded by China Association of Marine Affairs and Academy of Ocean of China (CAMAZDA201701) and of a general project on Marine Policies and Legal System in the New China: Review and Prospect funded by Shanghai Planning Office of Philosophy and Social Science (2017BHB005). Y. Jin (B) Ocean University of China, Qingdao, China e-mail: [email protected] © Kobe University 2021 D. Tamada and K. Zou (eds.), Implementation of the United Nations Convention on the Law of the Sea, Kobe University Monograph Series in Social Science Research, https://doi.org/10.1007/978-981-33-6954-2_3

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Paragraph 1 of Article 311 sets forth that this Convention shall prevail, among States Parties, over the Geneva Conventions on the Law of the Sea of April 29, 1958. The UNCLOS is a charter comprehensively regulating marine issues2 and has been approved by 168 countries (including the EU), thus enjoying universality.3 Meanwhile, most of its contents is a result of compiling customary international law, so even a country not being a State Party to this Convention shall comply with the rules of customary international law therein. In order to promote the general compliance and implementation of provisions of the UNCLOS, all countries, according to the status and requirement of international law in domestic law, shall accelerate the transformation and implementation of the UNCLOS so as to enrich their domestic system on the law of the sea. China is one of them because this is not only a requirement of the Vienna Convention on the Law of Treaties, but also an important duty of State Parties to UNCLOS4 satisfying the requirement of international rule of law.5 This is of important significance and plays an important role in maintaining ocean order, abides by ocean rules, claiming and exercising maritime rights, and resolving disputes over rights according to laws. Against the background that the international community accelerates its development and exploitation of ocean space and resources and vigorously advocates settlement of ocean issues on the basis of rules, UNCLOS has encountered challenges and needed development since its adoption in 1982 and entry into force in 1994. It is necessary to systematically expound on the characteristics and development trend of UNCLOS, thus providing guidance for China to further improve the system on the law of the sea and foster the process of building an ocean power.

2 The nature of the United Nations Convention on the Law of the Sea as a “Charter” is mainly shown

in the completeness of its content and the authority of its status. The “completeness” refers to rich and comprehensive content of the text of and appendixes to United Nations Convention on the Law of the Sea; the “authority” means that the United Nations Convention on the Law of the Sea does not only incorporate customary international laws but also enjoys attributes and characteristics beyond the system of Geneva Conventions on the Law of the Sea. 3 See https://www.un.org/depts/los/reference_files/status2018.pdf, visited on August 23, 2018. 4 For example, Article 26 of Vienna Convention on the Law of Treaties and Article 300 of the United Nations Convention on the Law of the Sea. 5 For example, Resolution (A/RES/70/118) on the rule of law at the national and international levels adopted by the General Assembly on 14 December 2015 on the report of the Sixth Committee (A/70/511) sets forth that the General Assembly reaffirms the need for universal adherence to and implementation of the rule of law at both the national and international levels and its solemn commitment to an international order based on the rule of law and international law, which, together with the principles of justice, is essential for peaceful coexistence and cooperation among States.

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3.2 Development Process and Basic Contents of the UNCLOS 3.2.1 Development Process of the UNCLOS From the general perspective, the UNCLOS has gone through three development stages. The first stage is the formation of the UNCLOS. This is the stage when the UNCLOS was formed with the UNCLOS and its nine Annexes. Article 318 of the UNCLOS sets forth that Annexes form an integral part of this Convention and, unless expressly provided otherwise, a reference to this Convention or to one of its Parts includes a reference to the Annexes relating thereto. The second stage is the development of the UNCLOS. This is the stage during which the 1994 Agreement relating to the Implementation of Part XI of the UNCLOS of 10 December 1982 (hereinafter referred to as Agreement on the Implementation of Part XI, which entered into force on July 28, 1996) and the 1995 Agreement for the Implementation of the Provision of the UNCLOS of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (hereinafter referred to as Implementation Agreement on Straddling Fish Stocks, which entered into force on December 11, 2001) were incorporated into the system of the UNCLOS.6 The third stage is the deepening of the UNCLOS. The most representative event is the adoption of the resolution (A/RES/69/292) named Development of an International Legally-binding Instrument under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction by the General Assembly of the United Nations on June 19, 2015.7 Thus, the United Nations holds governmental conferences to negotiate and discuss the formulation of an international legally-binding instrument which will improve the function and effect of and fill the gap in the UNCLOS on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction.8

6 The relationship between the Agreement on Implement of Part XI and the United Nations Conven-

tion on the Law of the Sea is set forth in the Paragraph 1 of Article 2 of the Agreement on Implement of Part XI, while the relationship between the Implementation Agreement on Straddling Fish Stocks and the United Nations Convention on the Law of the Sea is set forth in Article 4 of Implementation Agreement on Straddling Fish Stocks. 7 See https://documents-dds-ny.un.org/doc/UNDOC/GEN/N15/187/55/PDF/N1518755.pdf?Ope nElement. 8 See Yongming (2018a).

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3.2.2 Basic Contents of the UNCLOS Based on the development process of the UNCLOS especially the first two stages above, the UNCLOS mainly includes the following content. Firstly, it contains basic or general provisions, including Foreword and Part I (Introduction: Use of Terms and Scope), Part XVI (General Provisions), Part XVII (Final Provisions), Annex I (Highly Migratory Species) and Annex IX (Participation by International Organizations). Secondly, it establishes various ocean management systems, including Part II (Territorial Sea and Contiguous Zone), Part V (Exclusive Economic Zone), Part VI (Continental Shelf) and Annex II (Commission on the Limits of the Continental Shelf), Part VII (High Seas), Part XI (the Area), Annex III (Basic Conditions of Prospecting, Exploration and Exploitation) and Annex IV (Statute of the Enterprise), as well as the Agreement on the Implementation of Part XI and Implementation Agreement on Straddling Fish Stocks. Thirdly, it is of the Content and the System on Functions of the Sea. For example, Part III (Straits for International Navigation), Part XII (Protection and Preservation of the Marine Environment), Part XIII (Marine Scientific Research) and Part XIV (Development and Transfer of Marine Technology) of the UNCLOS. Fourthly, it regards the Special System on the Sea. For example, Part IV (Archipelagic States), Part VIII (Regime of Islands), Part IX (Enclosed or Semienclosed Seas), Part X (Rights of Access of Land-Locked States to and from the Sea and Freedom of Transit) of the UNCLOS. Fifthly, the system of settlement of maritime disputes includes Part XV (Settlement of Disputes), Annex V (Conciliation) and Annex VI (Statute of the International Tribunal for the Law of the Sea), Annex VII (Arbitration) and Annex VIII (Special Arbitration) of the UNCLOS. These provisions form the basic content of the UNCLOS. During the development stages of the UNCLOS, three organizations (the Commission on the Limits of the Continental Shelf, the International Sea-bed Authority, and the International Tribunal for the Law of the Sea) have helped to develop theory and practice in the law of the sea, which constitutes an important integral part of the UNCLOS.9

3.3 Basic Principles of the UNCLOS From the Foreword of the Convention, it is concluded that the purpose of formulating this Convention is to establish, with due regard for the sovereignty of all States, a legal order for the seas and oceans which will promote the peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources, and the conservation 9 For

details on the development and challenges in theory and practice of these three organizations created according to the United Nations Convention on the Law of the Sea, please see Yongming (2015). Also see Yongming (2016).

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of their living resources and preservation of the marine environment. Based on the above-mentioned development stages and basic content of the UNCLOS, it can be concluded that it mainly contains the following principles.

3.3.1 Principle of ‘Land Dominating the Sea’ Although the principle of ‘land dominating the sea’ is not directly regulated and defined in the UNCLOS, there are many provisions embodying it, for example, Articles 3, 5, 13, Paragraph 2 of Articles 33, 47 and 48, 57, Paragraphs 1 and 5 of Article 76, Paragraphs 2 and 3 of Article 121. It is generally recognized that the principle of land dominating the sea originated in the North Sea Continental Shelf Case (1969)10 and confirmed in the Aegean Sea Continental Shelf Case (1978)11 and the Maritime Delimitation in the Black Sea (2009) Case.12 For example, in the North Sea Continental Shelf Case, the International Court of Justice stated that the rights of the coastal State over its continental shelf legally affiliate to the sovereignty of the coastal State over the territory adjacent to the continental shelf and directly derived from the coastal State’s sovereignty; the legal concept that the land dominates the sea is applicable to the continental shelf.13 In the Aegean Sea Continental Shelf Case, the International Court of Justice stated that the coastal State naturally enjoys the rights to explore and exploit resources in the continental shelf in international law. Such rights reflect the exclusiveness of the sovereignty of the coastal State over the land, i.e. the rights of the coastal State over the continental shelf are the extension of the territorial sovereignty of the coastal State and they are automatically affiliated.14

3.3.2 Principle of Freedom of the High Seas Especially Freedom of Navigation and Overflight The freedom of the high seas including the freedom of navigation and overflight in the UNCLOS has been expanded from four types of freedom in the Convention on the High Seas to six types of freedom.15 From the content of freedom of the high seas, we may see that the differences and characteristics are mainly reflected in the following three aspects.

10 See

ICJ Reports, 1969, p. 51, para. 96. ICJ Reports, 1978, pp. 3–83. 12 See ICJ Reports, 2009, pp. 61–134. 13 See ICJ Reports, 1969, p. 51, para. 96. 14 See ICJ Reports, 1978, pp. 3–83. Also see Ozaki (1996). 15 For example, Article 2 of the Convention on the High Seas and Article 87 of the United Nations Convention on the Law of the Sea. 11 See

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The first is the changes in the content and categories of freedoms of the high seas. As above-mentioned, the freedom has developed from four types to six types which for example are respectively set forth in Article 2 of the Convention on the High Seas and Article 87 of the UNCLOS. The second is the restriction suffered by the State when exercising the four specific types of freedom in the UNCLOS. It shows the UNCLOS’s development of sea areas from being dual (the territorial sea or the high seas) to being multiplex (the territorial sea, archipelagic waters, exclusive economic zone/continental shelf, and the high seas) and the requirement of diversity of protected interests.16 For example, according to Paragraph 1 of Article 56 of the UNCLOS, the coastal State has jurisdiction with regard to the establishment and use of artificial islands, installations and structures as well as marine scientific research, and such jurisdiction is exclusive (Paragraph 2 of Article 60 and Paragraph 2 of Article 146).17 The third is whether in the Convention on the High Seas or in the UNCLOS, the State shall, in exercising its freedom of the high seas, have due regard for and take due account of other States’ interests of exercising the freedom of the high seas.18 For example, Articles 1 and 2 of the Convention on the Continental Shelf regarding the scope of the continental shelf and the purpose of the coastal State of exploring and exploiting natural resources and regulation on exercising sovereign rights over the continental shelf not only break through the dual structure that all areas except the territorial sea are the high seas, but also throw away the traditional doctrine of absolute freedoms of the sea. In other words, the principle of freedom of the high seas goes through from the stage of laissez-faire (absolute freedom) to the stage of due regard (relative freedom). Such change and development are also influenced by

16 For example, Article 1 of the Convention on the High Seas and Article 86 of the United Nations Convention on the Law of the Sea. 17 With regard to marine scientific research, Article 240 of the United Nations Convention on the Law of the Sea sets forth both the content and the principles and Paragraph 2 of Article 246 of the United Nations Convention on the Law of the Sea indirectly shows its definition. Article 5 of the Convention on the Continental Shelf , according to the nature of marine scientific research, divides it into two types: the first one is the basic marine research just for scientific purpose, i.e. purely marine scientific research; the second one is the practically marine scientific research for the economic purpose of exploring and exploiting resources of the continental shelf. Meanwhile, the requirements for the two different natures of marine scientific research are different. For the purely marine scientific research, the principle of freedom of the high seas may be applicable only when the research is carried out with the intention of open publication; for the practical marine scientific research , the consent of the coastal State shall be obtained. In addition, the coastal State shall not normally withhold its consent if the request is submitted with a view to purely scientific research into the physical or biological characteristics of the continental shelf; while the coastal State has a great discretion in approving or rejecting the application for practically marine scientific research. See Yamamoto (2000). 18 The articles in the system of the United Nations Convention on the Law of the Sea concerning due regard including reasonable regard and special consideration are Paragraph 4 of Article 27, Paragraph 2 of Article 56, Paragraph 3 of Article 58, Paragraph 2 of Article 87, Article 147 to Article 149.

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judgments of the International Court of Justice.19 Therefore, ‘due regard’ requires all States to be aware of and consider other States’ interests of freedom to use the high seas and avoid activities of interfering in other States’ exercise of freedom of the high seas when they exercise their own freedom of the high seas.20 In fact, the history of the development of the law of the sea is the history of the coordination and balance between the coastal States’ interests and the user State’s rights, i.e. the freedom of the high seas especially the right of freedom of navigation and overflight. That is to say, the history of the law of the sea is the history of opposition between regulation on the jurisdiction claimed by the coastal State and the freedom of the sea claimed by other States, the coastal States’ interests and the international community’s general interest.21

3.3.3 Equidistance Principle As above-mentioned, the UNCLOS sets forth legal regimes on various sea areas. The principles for determining the scope and boundary of various sea areas include the principle of land dominating the sea and the principle of equidistance. The former plays a leading role and the latter plays a supporting role. Meanwhile the latter may be altered according to the change of the content of relevant convention provisions. Although the equidistance principle is not found directly in the system of UNCLOS, the sea areas determined according to the equidistance principle mainly include the territorial sea, contiguous zone, Exclusive Economic Zone and the continental shelf including the outer continental shelf.22 It is obvious that there are three categories of maritime zones in the system of the UNCLOS. The first is the territorial sea, archipelagic waters and Exclusive Economic Zone which need announcement or declaration by the State. The second is the continental shelf within 200 nautical miles without the need to make announcement or declaration by the State.23 The third is 19 For example, the International Court of Justice stated in the judgment of Fisheries Jurisdiction Case that with the increasing scope of fisheries activities, the result of the development of marine international law is that the former laissez-faire treatment of the living resources of the sea in the high seas has been replaced by a recognition of a duty to have due regard to the rights of other States and the needs of conservation for the benefit of all. See Shigeki Sakamoto, The Impact of Expanded Functions of Regional Fisheries Management Agency on the Development of International Law: From Fisheries Regulation to Marine Management, The Practice of International Law edited by ShunjiYanai, Shinya Murase, Shinzansha, 2015 Edition, p. 459. 20 See Sohn (2014). Also see Sohn et al. (2010). 21 See Mizukami (2004). 22 For example, Article 3, Paragraph 2 of Article 33, Article 57, Paragraph 1, Paragraph 4 and Paragraph 5 of Article 76 of the United Nations Convention on the Law of the Sea. 23 Paragraph 3 of Article 77 of the United Nations Convention on the Law of the Sea set forth the rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation.

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the outer continental shelf or the Area which needs approval of the bodies within the system of the UNCLOS, i.e., the Commission on the Limits of the Continental Shelf or the International Sea-bed Authority.24

3.3.4 Principle of Equity In the UNCLOS, provisions relating to the principle of equity are Article 59, Paragraph 1 of Article 74, Paragraph 1 of Article 83, Paragraph 4 of Article 82, Paragraph 2 of Article 140. They mainly have the following three aspects. Firstly, Article 59 is about the dispute over unattributed rights in the Exclusive Economic Zone, especially dispute over security irrelevant to the legislative purpose of the Exclusive Economic Zone. For example, the issues regarding military activities in the Exclusive Economic Zone should be resolved on the basis of equity and in the light of all the relevant circumstances. Secondly, Articles 74 and 83 are about the equitable solution of delimitation of the Exclusive Economic Zone and the continental shelf, which has been developed in international judicial practice and the delimitation model of achieving equitable solution has been established (i.e. the three-stage delimitation methodology).25 Thirdly, Articles 82 and 140 relate to equitable sharing or distribution of interests or financial benefits of the non-living resources of the continental shelf beyond 200 nautical miles, which is an important issue within the International Sea-bed Authority.

3.3.5 Principle of the Common Heritage of Mankind The importance of establishing the principle of the common heritage of mankind in the international sea-bed area of the UNCLOS (the Area) not only shows that it is an essential requirement of maintaining order at sea and achieving common development, but also makes it become an ‘inviolable’ important principle. Therefore, it is of important significance in theoretical innovation and practice to strengthen comprehensive management in the sea including managing activities and distributing interests in the Area through the International Sea-bed Authority.26 24 For example, Paragraph 8 of Article 76, Article 153 of the United Nations Convention on the Law of the Sea. 25 According to the Three-stage Delimitation Methodology, the first stage is to draw a provisional delimitation line or a median line; the second stage is to weigh relevant facts for achieving equitable results and discuss whether it is necessary to adjust the provisional equidistance line or median line; the last stage is to check the proportion between the length of the coastline and the size of allocated maritime zones and determine whether such line leads to unfair result for further adjustment. See ICJ Reports, 2009, pp. 101–103, paras.115–122. 26 For example, Article 136, Article 154, Paragraph 6 of Article 311, Article 156, Paragraph 1 of Article 157, Paragraph 2 of Article 140 of the United Nations Convention on the Law of the Sea.

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Besides the above-mentioned principles, there are the principle of peaceful use, the principle of flag state jurisdiction, the principle of universal jurisdiction, the principle of cooperation and the principle of peaceful settlement of disputes set forth in the UNCLOS.

3.4 Specific Practice of China in Accordance with the UNCLOS It is an important duty for a State party to the UNCLOS to incorporate principles and the spirit contained in the UNCLOS into its domestic law for implementation. This part expounds the specific practice of China in the law of the sea after brief introduction to the relationship between international law and domestic law.

3.4.1 Relationship Between International Law and Domestic Law Regarding the relationship between international law and domestic law, there are two schools: Monism and Dualism. Monism holds that international law and domestic law belong to the same legal system; Dualism considers that international law and domestic law are different legal systems. There are three theories on the effectiveness of international law and domestic law: domestic law prevails over international law; international law prevails over domestic law; international law and domestic law are independent of each other.27 In fact, there will be no practical result from the debate on the theories of the relationship between international law and domestic law. The actual pathways and concrete practices must be examined; the important thing is how every State applies rules of international law in their internal legal order frameworks and how it resolves the conflict between rules of international law and domestic law.28 The issue is about the status of international law within a domestic legal system and which one prevails when international law and domestic law are in conflict. The effectiveness of international law within a domestic legal system is different because different States have different constitutional systems, but it is undeniable that, according to Article 27 of the Vienna Convention on the Law of Treaties, a party may not invoke the provisions of its domestic law as justification for its failure to perform a treaty. That means domestic law may not prevail over a treaty, which is the principle of forbidding to invoke domestic law.29 27 Tieya

(2004). and Watts [10]; also see Jennings and Watts [ 11]. Sugihara [12]. 29 Sugihara (12, pp. 78–79). Also see ICJ Reports, 1988, pp. 34–35, para.57; Vienna Convention on the Law of Treatise, Article 27. 28 Jennings

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When it comes to the status of international law especially a treaty in Chinese law, the Constitution of China (adopted on December 4, 1982, five revisions afterwards respectively on April 12, 1988, March 29, 1993, March 15, 1999, March 14, 2004 and March 11, 2018)30 does not directly set forth the status of an international treaty in the Chinese legal system, but it has provisions on powers and procedures of entering into a treaty, for example, Paragraph 9 of Article 89 of the Constitution states that the State Council has the power to enter into a treaty or agreement with foreign countries; the Standing Committee of the National People’s Congress decides the approval and repeal of a treaty and important agreements with foreign countries Paragraph 15 of Article 67; the President approves and repeals a treaty and important agreements with foreign countries according to the decision of the Standing Committee of the National People’s Congress (Article 81). While the law is made and amended by the Standing Committee of the National People’s Congress (Paragraph 2 of Article 67) and promulgated by the President of the People’s Republic of China according to the decision of the Standing Committee of the National People’s Congress (Article 80), according to the aforesaid provisions of the Constitution, the power and procedure of entering into a treaty and the power and procedure of making a law are to a great extent the same. Now that the Constitution does not clearly set forth the status of international law in Chinese legal system, it is necessary to make an analysis of provisions regarding international law in general laws of China. The provisions relating to international treaty may be classified into the following three categories. Firstly, domestic law clearly states that an international treaty shall apply directly, for example, Article 19 of Trademark Law of 1982, Article 19 of Inheritance Law of 1985, Article 239 and Article 247 of Civil Procedure Law of 1986, Article 18 of Patent Law. Secondly, domestic law clearly states that an international treaty prevails when it conflicts with domestic law, for example, Article 142 of the General Provisions of Civil Law of 1986.31 Thirdly, domestic law does not clearly set forth the direct application of an international treaty but makes it applicable internally through amending or supplementing a domestic law.32 In order to implement a treaty internally, it is necessary to endow it with internal effectiveness. There are two ways to incorporate a treaty into domestic law: acceptance or direct application (i.e. recognizing the effectiveness of a treaty internally by promulgating it) and the mode of transformation (i.e. transforming provisions of a treaty into domestic law through legislative procedures). That is to say, international

30 See

Constitution of the People’s Republic of China, Law Press, 2018, pp. 1–56. is no such provision as Article 142 of the General Provisions in the General Principles of the Civil Law (entered into force on October 1, 2017) adopted at the Fifth Session of the 12th National People’s Congress on March 15, 2017. 32 See Lingliang and Rao (2005). 31 There

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law especially a treaty gains its domestic effectiveness through the mode of recognition or transformation. The mode of transformation is especially reflected in China’s practice in the law of the sea.33

3.4.2 Specific Practice of China According to the UNCLOS China, according to customary international law and modern law of the sea, especially the basic principles and content of the UNCLOS, enacts and implements law of the sea at the domestic level. The specific practice is mainly reflected in the following several aspects. The Legislation and Core Content on the General and Principled Systems The Declaration of the Government of the People’s Republic of China on China’s Territorial Sea (September 4, 1958)34 set forth that the straight baselines method shall be employed to determine the baselines of territorial sea of the mainland and coastal islands of China, that the breadth of China’s territorial sea shall be twelve nautical miles. Meanwhile, foreign aircrafts and military vessels cannot enter into the territorial sea and the airspace of the territorial sea of China without the approval of the government of the People’s Republic of China. Any foreign vessels must abide by relevant laws and orders of the government of the People’s Republic of China when it navigates in the territorial sea of China. In the Declaration of the Government of the People’s Republic of China on the Baselines of the Territorial Sea (May 15, 1996),35 China announced the baselines of part of its territorial sea adjacent to the mainland and those of territorial sea adjacent to its Xisha Islands. These baselines are composed of straight lines and the declaration states that the government of the People’s Republic of China will announce the remaining baselines of the territorial sea of the People’s Republic of China at another time. The Decision of the Standing Committee of the National People’s Congress on Approving the United Nations Convention on the Law of the Sea (May 15, 1996)36 states that firstly, the People’s Republic of China will negotiate with States with 33 Although there are disputes over the level and effectiveness between international law and domestic law, treaty prevails over domestic law from the legislation and practice of China. See Zhou (2004). 34 See Office of Policy, Law and Regulation State Oceanic Administration Editor, Collection of the Sea Laws and Regulations of the People’s Republic of China, 3rd edition, Ocean Press, 2001 Edition, pp. 197–198. 35 See Office of Policy, Law and Regulation State Oceanic Administration Editor, Collection of the Sea Laws and Regulations of the People’s Republic of China, 3rd edition, Ocean Press, 2001 Edition, pp. 206–209. 36 See Office of Policy, Law and Regulation State Oceanic Administration Editor, Collection of the Sea Laws and Regulations of the People’s Republic of China, 3rd edition, Ocean Press, 2001 Edition, pp. 199–200.

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opposite or adjacent coasts to delimit their respective marine jurisdiction according to the principle of equity on the basis of international law. This demonstrates the requirement by the UNCLOS of delimitation in the principle of equity. Secondly, the People’s Republic of China reiterates that the UNCLOS sets forth the innocent passage in the territorial sea without prejudice to the coastal State’s right of asking foreign warships to obtain advance permission from it or give advance notice to it for their passage in the territorial sea. Such content is not exactly the same as the terms in the Declaration of the Government of the People’s Republic of China on China’s Territorial Sea. The Statement of the People’s Republic of China on the Baselines of the Territorial Sea of Diaoyu Dao and Its Affiliated Islands (September 10, 2012)37 decided on two sets of baselines: the first group of baselines connects Diaoyu Dao, Huangwei Yu, Nanxiao Dao, Beixiao Dao, Nan Yu, Bei Yu and Fei Yu; and the second group is the straight baselines around Chiwei Yu. The Legislation and Core Content on the Basic Sea Area Systems The Law of the People’s Republic of China on the Territorial Sea and the Contiguous Zone (February 25, 1992)38 states that the extent of PRC’s territorial sea measures 12 nautical miles from the baseline of the territorial sea. The PRC’s baseline of the territorial sea is designated with the method of straight baselines, formed by joining the various base points with straight lines. To enter the territorial sea of the People’s Republic of China, foreign military ships must obtain permission from the Government of the People’s Republic of China. The Law of the People’s Republic of China on the Exclusive Economic Zone and Continental Shelf (June 26, 1998)39 sets forth the scope of the Exclusive Economic Zone which extends to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured; the continental shelf is the natural prolongation of the land territory to the outer edge of the continental margin, or to 200 nautical miles from the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that limit. Such provisions are made according to the equidistance principle in the UNCLOS. 37 For details on the Statement of People’s Republic of China on the Baselines of the Territorial Sea of Diaoyu Dao and Its Affiliated Islands, see https://www.gov.cn/jrzg/2012-09/10/content_2 221140.htm, visited on September 11, 2012. Meanwhile, in order to deal with the safety of flight in airspace over the East China Sea including sea areas surrounding Diaoyu Dao, Ministry of National Defense of China announced the Declaration of China on Establishing Air Defense Zone of East China Sea on Nov. 23, 2013 according to international customs and national laws and published the Announcement of China of Rules on Identifying Aircrafts in Air Defense Identification Zone of East China Sea . See https://www.gov.cn/jrzg/2013-11/content_2533099(or2,533,101).htm, visited on Nov. 25, 2013. 38 See Office of Policy, Law and Regulation State Oceanic Administration Editor, Collection of the Sea Laws and Regulations of the People’s Republic of China, 3rd edition, Ocean Press, 2001 Edition, pp. 201–205. 39 See Office of Policy, Law and Regulation State Oceanic Administration Editor, Collection of the Sea Laws and Regulations of the People’s Republic of China, 3rd edition, Ocean Press, 2001 Edition, pp. 210–215.

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According to Paragraph 3 of Article 2 of the Law of the People’s Republic of China on the Administration of the Use of Sea Areas (enacted on October 27, 2001 and entered into force on January 1, 2002),40 this law shall be applicable to any exclusive activities relating to the continuous use of a specific sea area over three months within the inland waters or territorial seas of the People’s Republic of China. Meanwhile, Article 4 to Article 6 set forth that China adopts the marine function zoning system, the information system for the administration of the use of sea areas, the registration system for the right to the use of sea areas and the statistics system for the use of the sea areas. China enacted the Law of the People’s Republic of China on the Exploration and Development of Resources in Deep Seabed Areas (adopted on February 26, 2016 and entered into force on May 1, 2016) in accordance with the UNCLOS that for performing a State Party’s obligation to sponsor natural or juridical persons which possess the nationality of the State Party or are effectively controlled by the State Party to carry out activities in the Area according to the UNCLOS, and that the sponsoring State shall take measures to effectively control the sponsored contractor’s activities in the Area, as a specific measure of the State Party.41 The Legislation and Core Content on Systems of Functions of Sea Areas According to Article 2 ofthe Law of the People’s Republic of China on Marine Environment Protection (adopted on August 23, 1982, three revisions respectively on December 25, 1999, December 28, 2013 and November 7, 2016),42 this law shall apply to the internal seas and territorial seas, contiguous zone, Exclusive Economic Zone, the continental shelf of the People’s Republic of China and all other sea areas under the jurisdiction of the People’s Republic of China. This law shall also apply to the activities conducted beyond the sea areas under the jurisdiction of the People’s Republic of China that cause pollution to sea areas within the jurisdiction of the People’s Republic of China. Meanwhile, this law provides corresponding provisions on the marine environment supervision management, marine ecology protection, prevention and treatment of the pollution damage of land-sourced pollutants to marine environment, prevention and treatment of pollution damage of coastal engineering and marine engineering construction projects to marine environment and the prevention and treatment of pollution damage of vessels and relevant operating activities to marine environment as well as punishment for various law-breaking activities. According to Article 1 to Article 3 of the Law of the People’s Republic of China on Maritime Traffic Safety (adopted on September 2, 1983 and entered into force on 40 Department of Policy, Legislation and Planning State Oceanic Administration Editor, Collection of the Sea Laws and Regulations of the People’s Republic of China, 4th Edition, Ocean Press, 2012 Edition, pp. 336–249. 41 Law of the People’s Republic of China on the Exploration and Development of Resources in Deep Seabed Areas consists of 7 chapters and 29 articles. For details, see Law of the People’s Republic of China on the Exploration and Development of Resources in Deep Seabed Areas (including the explanation of the draft), China Legal Publishing House, 2016 Edition, pp. 2–12. 42 See https://www.npc.cn/zgrdw/npc/zfjc/zfjcelys/2018-11/12/content_2065782.htm, visited on June 25, 2020.

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January1, 1984),43 this law aims to strengthen the management of maritime traffic; ensure the safety of vessels, installations, human life and property; and safeguard the rights and interests of the State. This law shall apply to all vessels, installations and personnel and to the owners and managers of such vessels and installations that navigate, berth or operate in the coastal waters of the People’s Republic of China. The harbor superintendence agencies of the People’s Republic of China shall be the competent authorities responsible for the unified supervision and administration of traffic safety in the coastal waters. Article 4 of the Provisions of the People’s Republic of China on the Administration of Foreign-related Marine Scientific Research (adopted on June 18, 1996 and entered into force on October 1, 1996)44 states that a foreign party (i.e. an international organization, a foreign organization or individual) intending to conduct maritime scientific research in the internal seas or territorial seas of the People’s Republic of China should undertake it in collaboration with a Chinese party. In other sea areas under the jurisdiction of the People’s Republic of China, a foreign party may conduct maritime scientific research independently or in collaboration with a Chinese party. Such activities shall be subject to the approval of the state administrative department of marine affairs, or be reported by the state administrative department of marine affairs to the State Council for approval, and shall be in conformity to laws and regulations of the People’s Republic of China. Meanwhile, (Article 5) provides for the date of receiving written application, the examination authority and the date of deciding whether to or not grant the approval and other issues. The Legislation and Core Content on Special Systems on the Law The Law of the People’s Republic of China on the Protection of Offshore Islands (adopted on December 26, 2009 and entered into force on March 1, 2010)45 aims to protect the ecosystems of islands and their surrounding waters, rationally develop and exploit the natural resources of islands, protect the oceanic rights and interests of the state, and promote sustainable economic and social development (Article 1). The term “islands” as mentioned in this Law refers to the naturally formed land areas which are surrounded by seawater and above the surface of water at high tide, including inhabited islands and uninhabited islands (Article 2). The state shall apply the principle of “scientific planning, giving priority to protection, rational development and sustainable utilization” to islands (Article 3). Meanwhile, according to Article 22, the state shall protect the military facilities established on the islands, and it shall be prohibited to damage or endanger such military facilities. The state shall 43 Department of Policy, Legislation and Planning State Oceanic Administration Editor, Collection of the Sea Laws and Regulations of the People’s Republic of China, 4th Edition, Ocean Press, 2012 Edition, pp. 366–375. 44 Department of Policy, Legislation and Planning State Oceanic Administration Editor, Collection of the Sea Laws and Regulations of the People’s Republic of China, 4th Edition, Ocean Press, 2012 Edition, pp. 494–498. 45 Department of Policy, Legislation and Planning State Oceanic Administration Editor, Collection of the Sea Laws and Regulations of the People’s Republic of China, 4th Edition, Ocean Press, 2012 Edition, pp. 350–365.

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protect the public facilities legally established on islands for navigation assistance or guidance, surveying, meteorological observation, marine monitoring, seismic monitoring, etc., and it shall be prohibited to damage, move without authorization or impede the normal use of such facilities. As for an uninhabited island, Article 28 states that the status quo of an uninhabited island shall be maintained if the use of it has not been approved; and such activities as quarrying, excavating sea sand, felling trees, production, construction and tourism shall be prohibited. Where the development and utilization of an uninhabited island involve the utilization of any special purpose island, or really need any sea filling to connect islands or connect the island with continent or any serious change of the natural terrain or landform of the island, it shall be subject to the examination and approval of the State Council (Article 30). Of course, the state shall apply special protection to the islands where the territorial sea-base points are located, islands for the purpose of national defense, islands within the marine natural reserves and other islands for special purposes or with special conservation value (Article 36). Such provisions constitute the core content of islands protection. The Legislation and Core Content on Maritime Dispute Settlement Mechanism It is known that there are disputes over territorial sovereignty and maritime delimitation between China and other countries especially in the East China Sea and the South China Sea. China sets forth in Article 2 of the Decision of the Standing Committee of the National People’s Congress on Approving the United Nations Convention on the Law of the Sea and Paragraph 3 of Article 2 of the Law of China on Exclusive Economic Zone and the Continental Shelf that the delimitation shall be made by agreement according to the principle of equity. In addition, other documents set forth or show some principled provisions on dispute settlement which are mainly as follows. (1) China submitted a written declaration to the Secretary-General of the United States on August 25, 2006 according to Article 298 of the UNCLOS, pointing out that the Chinese government does not accept the jurisdiction of any international justice or arbitration set forth in Sect. 3.2 of Party XV of the UNCLOS over any dispute (such as sea boundary delimitation, territorial sovereignty, a dispute concerning military activities) set forth in Item (a), (b) and (c) of Paragraph 1 of Article 298 of the UNCLOS. In other words, China excludes the possibility of applying international justice or arbitration to the settlement of marine disputes concerning important national interests. Such position and attitude are especially evident in the handling of the South China Sea Arbitration Case. (2) On December 14, 2012, the People’s Republic of China submitted to the UN Secretary-General the information on the outer limits of the continental shelf as part of the East China Sea for supplementing the content of the Preliminary Information of China the Outer Limits of the Continental Shelf beyond 200

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Nautical Miles. The Permanent Mission of China to the United Nations fulfilled the duty by addressing the UN Secretary-General on May 11, 2009.46 Besides the aforesaid legal conduct performed according to the rules and requirements of the UNCLOS, China has some specific national practices in maintaining its marine rights and interests, which are mainly reflected in the following aspects. Firstly, regarding the status of Okinotori of Japan, the Permanent Mission of China to the United Nations submitted a written declaration of its position on Okinotori to the UN Secretary-General on February 6, 2009, pointing out that Okinotori is a reef not an island, so it cannot be served as a basepoint for claiming the continental shelf and outer continental shelf, and the Commission on the Limits of the Continental Shelf has no power to examine relevant materials claiming the outer continental shelf on basis of the Okinotori.47 Secondly, regarding Vietnam and Malaysia’s joint submission concerning outer limits of continental shelf (May 6, 2009) and Vietnam’s individual submission concerning the outer limits of the continental shelf (May 7, 2009), the Permanent Mission of China to the United Nations submitted a letter (No. CML/17/2009) to the UN Secretary-General on May 7, 2009, pointing out that China has indisputable sovereignty over South China Sea islands and adjacent sea areas and has sovereign rights and jurisdiction over relevant sea areas and their sea bed and subsoil. China’s position is known to the international community. In order to deal with the letter sent from the Ministry of Foreign Affairs of the Philippines to the Chinese Embassy in the Philippines on April 4, 2011, alleging that the Republic of the Philippines has sovereignty and jurisdiction over Kalayaan Island Group, the Permanent Mission of China to the United Nations submitted a letter (No. CML/8/2011) to the UN Secretary-General again on April 4, 2011, emphasizing that China has indisputable sovereignty over South China Sea islands and adjacent sea areas and has sovereign rights and jurisdiction over relevant sea areas and their sea bed and subsoil. China’s sovereignty and related rights and jurisdiction enjoy sufficient historical and legal foundations.48 The abovementioned positions and views were re-confirmed in the Statement of the Government of the People’s Republic of China on China’s Territorial Sovereignty and Maritime Rights and Interests in the South China Sea on July 12, 2016.49 Thirdly, regarding the advisory opinion on the issue of responsibilities and duties of the State sponsoring an individual and entity’s activities in the Area given by the Seabed Disputes Chamber of the International Tribunal for the Law of the 46 For details on Chinese government’s submission concerning the outer limits of continental shelf as part of East China Sea , see https://www.un.org/depts/los/clcs_new/commission_documents.htm, visited on December 27, 2014. 47 See https://www.un.org/Deps/los/clcs_new/submission_files/jpn08/chn_6feb09_c.pdf, visited on March 12, 2009. 48 See Chinese Society of International Law, The South China Sea Arbitration Awards: A Critical Study, Foreign Languages Press, 2018 Edition, p. 34. 49 See the Department of Boundary and Ocean Affairs of Ministry of Foreign Affairs of PRC (ed.), Compiled Documents of China Dealing with South China Sea Arbitration, World Affairs Press, 2016 Edition, pp. 86–90.

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Sea on February 1, 2011, the Department of Treaty and Law of the Ministry of Foreign Affairs of China submitted A Written Opinion from China on the Issue of Responsibilities and Duties of the Sponsoring State for Activities in the Area to Seabed Disputes Chamber of the International Tribunal for the Law of the Sea. The written opinion was generally accepted by the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea, making contributions to the improved implementation of the regime of international seabed area.50 Fourthly, in order to reasonably manage the South China Sea issues, China signed the Declaration on the Conduct of Parties (DOC) in the South China Sea with ASEAN on November 4, 2002,51 concluded the Guidelines for the Implementation of the DOC on July 20, 2011, promulgated the Joint Statement of the Foreign Ministers of ASEAN Member States and China on the Full and Effective Implementation of the Declaration on the Conduct of Parties in the South China Sea on July 25, 2016.52 Meanwhile, China and ASEAN initiated the consultation and negotiation on formulating a Code of Conduct in South China Sea in August 2013 and have achieved substantive progress. The implementation of such measures and documents as well as specific progress or achievement stabilizes the situation of the South China Sea and brings about positive results. In addition, China and Vietnam signed an Agreement between the People’s Republic of China and the Socialist Republic of Viet Nam on the delimitation of the territorial seas, the exclusive economic zones and continental shelves in Beibu Bay on December 25, 2000 and Agreement between the People’s Republic of China and the Socialist Republic of Viet Nam on Fisheries Cooperation in Beibu Bay (entered into force on June 30, 2004).53 China and Japan signed the Agreement between the People’s Republic of China and Japan on the Fisheries on November 11, 1999 (entered into force on June 1, 2000),54 promulgated Sino-Japanese Principled Consensus on the East China Sea Issues (June 18, 2008),55 China and Japan reached 50 See Relevant Procedures of China’s Participation in the Case of Advisory Opinion on the Responsibilities of the Sponsoring State of the International Tribunal for the Law of the Sea , Selected Cases of China’s Practices in International Law, edited by the Department of Treaty and Law of Ministry of Foreign Affairs of China, World Affairs Press, 2016 Edition, pp. 53–80. 51 See Department of Boundary and Ocean Affairs of Ministry of Foreign Affairs of PRC (editor), A Compilation of the Documents on the Issues Related to China Seas, World Affairs Press, 2017 Edition, pp. 71–73. 52 For details on the aforesaid documents, see Department of Boundary and Ocean Affairs of Ministry of Foreign Affairs of PRC (editor), A Compilation of the Documents on the Issues Related to China Seas, World Affairs Press, 2017 Edition, pp. 69–94. 53 For details on the aforesaid documents, see Department of Boundary and Ocean Affairs of Ministry of Foreign Affairs of PRC (editor), A Compilation of the Documents on the Issues Related to China Seas, World Affairs Press, 2017 Edition, pp. 170–177, pp. 178–193. 54 See Department of Boundary and Ocean Affairs of Ministry of Foreign Affairs of PRC (editor), A Compilation of the Documents on the Issues Related to China Seas, World Affairs Press, 2017 Edition, pp. 487–504. 55 See Department of Boundary and Ocean Affairs of Ministry of Foreign Affairs of PRC (editor), A Compilation of the Documents on the Issues Related to China Seas, World Affairs Press, 2017 Edition, pp. 541–544.

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a four-point Principled Agreement on Treating and Improving Sino-Japanese Relations (November 7, 2014),56 Memorandum of Understanding between Ministry of National Defense of China and Ministry of Defense of Japan on the Maritime and Air Safety Liaison Mechanism (signed on May 9, 2018 and entered into force on June 8, 2018) and China-Japan Governmental Cooperation Agreement on Search and Rescue at Sea (October 26, 2018 and entered into force on February 24, 2019). China and South Korea signed the Agreement between the Government of the People’s Republic of China and Government of the Republic of Korea on Fisheries on August 3, 2000 (entered into force on June 30, 2001)57 and carried out negotiation on delimitation in the Yellow Sea. The abovementioned results and documents play an important role in the effective settlement and delay of disputes over the sea adjacent to China. They reflect the positive role that China has played in settling disputes by insisting on peaceful and practical means.

3.4.3 Disadvantages, Effect and Influence of China’s Domestic Legal System on the Sea Although China, according to the modern system of the law of the sea, especially the UNCLOS, continually enacts and enriches its domestic system of the law of the sea, some of their provisions and regimes have met with challenges from the international community especially the USA. The first is the challenge in relation to the application of straight baselines in the Xisha Islands. China announced the straight baselines of Xisha Islands on May 15, 1996, which was challenged by the USA who considered it as ‘Excessive Maritime Claims’ and published a report entitled Limits in the Seas-Straight Baseline Claim: China (No. 117) on June 9, 1996.58 The USA also challenged China’s laws and rules in recent time through its warship operations by exercising the freedom of navigation in the territorial sea of Xisha Islands.59 The second challenge is in relation to the procedure of warships’ innocent passage in the territorial sea. The USA challenged China’s practice of applying for advance permission and notice given to the coastal State in foreign warships’ innocent passage in the territorial sea which is set forth in Declaration of China’s Territorial Sea, Law of China on the Territorial Sea and the Contiguous Zone and the Decision on Approving 56 See Department of Boundary and Ocean Affairs of Ministry of Foreign Affairs of PRC (editor), A Compilation of the Documents on the Issues Related to China Seas, World Affairs Press, 2017 Edition, pp. 545–546. 57 See Department of Boundary and Ocean Affairs of Ministry of Foreign Affairs of PRC (editor), A Compilation of the Documents on the Issues Related to China Seas, World Affairs Press, 2017 Edition, pp. 548–561. 58 See United States Department of State, Office of Ocean Affairs, Limit in the Seas No. 117: Straight Baseline Claim: China, Washington: United States Department of State, 1996. 59 For details on the actions of freedom of navigation conducted by the USA warships in Xisha and Nansha sea areas, see Yongming (2018b).

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the United Nations Convention on the Law of the Sea and from America’s opposition towards China. We may assume that these provisions are contrary to the established practices of the international community and insist on the position and action of Freedom of Navigation that there is no need to obtain an advance permission or give notice to the coastal State for a warship’s innocent passage in the territorial sea. The third challenge is about the jurisdiction over security matters in the contiguous zone. The USA holds that the provision of (Article 13) of Law on the Territorial Sea and the Contiguous Zone and China’s authority to exercise powers within its contiguous zone for the purpose of preventing or punishing infringement of its security is contrary to the established practices of many States and claims that the provision of China on preventing or punishing infringement of its security is not conforming to the rules of the UNCLOS.60 The fourth challenge is in relation to China’s island and reef construction and military deployment in the South China Sea especially in Nansha. The USA considers that China’s construction activities on its occupied Nansha islands and reefs damage surrounding marine environment, especially militarization of the construction project of China in Nansha islands and reefs after the completion of land reclamation projects seriously threaten other States’ navigation safety. Meanwhile, the USA holds that China cannot claim more sea areas under its jurisdiction according to its occupied Nansha islands and reefs because there are different and opposite views on the status of Nansha islands and reefs. In addition, the USA Department of State published a report entitled Limits in the Sea-China: Maritime Claims in the South China Sea (No. 143) on December 5, 201461 and holds that China should define more clearly the nature of the dotted line of the South China Sea and the legal status of waters within such line.62 The fifth challenge is in relation to the binding force of the South China Sea Arbitration Award. Some countries led by the USA consider that China should comply with the Final Award of the South China Sea Arbitral Tribunal (July 12, 2016) as that award of the arbitral tribunal is binding upon China and hence China must abide by it.63

60 There are five states (Cambodia, China, Sudan, Syria and Vietnam) in the international community claiming jurisdiction over security matters in the contiguous zone. See Pedrozo (2018). 61 See Bureau of Oceans and International Environmental and Scientific Affairs, United States Department of State, Limits in the Sea, China: Maritime Claims in the South China Sea, December 5, 2014. 62 For details on the rebuttal against the report of Limits in the Sea of the USA Department of State, see Jia (2016). For details on the dotted line of South China Sea, see Gao and Jia (2014). Also see Gao and Jia (2013), Keyuan (2001). 63 For details on the comprehensive rebuttal against the South China Sea Arbitration Award, see Chinese Society of International Law, The South China Sea Arbitration Awards: A Critical Study, Foreign Languages Press, 2018 Edition, pp. 1–395.

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3.5 The Development Trend of the UNCLOS and China’s Response 3.5.1 The Development Trend of the System of the UNCLOS The development trend of the UNCLOS is mainly reflected in the following aspects. The first is the development of the law-making mode. It can be concluded from the development and the content of the UNCLOS that the UNCLOS is supplemented and refined by adopting the method of improvement through formulating Implementation Agreements, which can be regarded as an innovation in law-making.64 Such practice does not only avoid the difficulty in applying the ‘Amendment’ procedure of Article 312 and the simplified procedure of Article 313 of the UNCLOS but also enjoys efficiency. Meanwhile, such practice is reasonable and in conformity to the norms of Article 30 and Article 59 of the Vienna Convention on the Law of Treaties. The second is the development of the law-making notion. It includes limiting the principle of the freedom of the high seas, applying the principle of the common heritage of mankind and strengthening the management of international organizations on the sea for the purpose of realizing the goal of comprehensive management of the sea and eliminating drawbacks of jurisdiction over a single marine affair.65 Such changes in the law-making notion are especially reflected in the progress of discussion and examination of the issue of the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. The third is the necessity of multi-dimensional cooperation. In the UNCLOS, there are many models and pathways of cooperation. They include three types such as cooperation between related States (for example, Article 66, Article 94, Article 118 and Article 130), cooperation among all States (for example, Article 100, Article 108, Article 117 and Article 303) and cooperation between a State and an international organization (for example Paragraph 4–5 of Article 41, Article 61, Article 64 to Article 65, and Article 197, Article 200 to Article 201, Article 242 to Article 244). In terms of the content, they involve cooperation between a State and an international organization on the designation of sea lanes and traffic separation schemes in straits used for international navigation, conservation and management of the living resources of the Exclusive Economic Zone, protection and preservation of the marine environment, marine scientific research and so on; cooperation among all States on issues such as the repression of piracy on the high seas, the suppression of illicit traffic in narcotic drugs and psychotropic substances engaged in by ships on the high seas contrary to international conventions, measures for the conservation of the living resources of the high seas, the protection of objects of an archaeological and 64 The law-making mode herein refers to the method and way of compiling customary international law and developing it into a treaty. For example, Item 1 of Paragraph 1 of Article 13 of the UN Charter states that the General Assembly shall initiate studies and make recommendations for the purpose of promoting international cooperation in the political field and encouraging the progressive development of international law and its codification. 65 See Kanehara (2016).

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historical nature found at sea; cooperation between related States on issues such as anadromous stocks in the Exclusive Economic Zone, the jurisdiction and control of the flag State over ships flying its flag and the inquiry into every marine casualty or incident of navigation on the high seas, the management of the living resources of the high seas, rights of access of land-locked States to and from the sea and avoidance of delay of traffic in transit and other technological difficulties when exercising the freedom of transit.66 There are many levels and aspects of cooperation, which are not only decided by comprehensiveness, uniqueness and functionality of the sea but also are the international community’s understanding on the principle of cooperation and its summary of the application in marine management.

3.5.2 China’s Measures for Improving the Domestic Legal System of the Sea As above-mentioned, China, according to customary international law and the modern system of the law of the sea, especially the UNCLOS, continually enacts and enriches the domestic system of the law of the sea. China plays a positive role in management and development of marine affairs to some extent, but there is a situation where the international community especially the USA challenges China’s principles and regimes of the law of the sea. In order to further promote the modernization of marine governance systems and capabilities of China and make contributions to building an ocean power, it is of special importance for China to take corresponding measures of improving the legal system of the sea for realizing the goal of ruling the sea by law. Firstly, the status of the sea should be established in the national legal system. From the content of the Constitution of China, there is no expression of the status of the “sea” in the national legal system, so for improving the sustainable function of the sea, it is necessary to upgrade its status. The key way would be to incorporate provisions into the Constitution that allow the sea to be a part of natural resources and to be protected, or formulating the Basic Law of the Sea to define or regulate the status of the sea, so as to establish and improve the status of the sea. Secondly, the emphasis should be on research into provisions of the law of sea challenged by other countries. As abovementioned, other countries have doubts about China’s straight baseline system in Xisha, the procedural permission or notice system for warships’ innocent passage in the territorial sea and the permission system for military activities in the Exclusive Economic Zone. Therefore, China should enhance communication and coordination with other countries on these disputed issues on the

66 See

Okuwaki (2015), Shinzansha, 2015 Edition.

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basis of continually learning from other countries’ practices, make various preparations for further enriching and improving the UNCLOS including formulating new Implementation Agreement concerning freedom of navigation and properly adjusting the relevant domestic legal system. Thirdly, there should be supplemental laws and rules on functional affairs of the sea. In order to explore and exploit the marine space and resources in a sustainable way, it is of special importance to strengthen research and development of marine science and technology, which is also the key to building China into an ocean power. Marine science and technology play an important supporting role in exploring and exploiting marine space and resources including developing a marine economy. Therefore, regarding functional affairs of the sea, China should enhance and improve Regulations on the Administration of Foreign-related Marine Scientific Research, and carry out investigation, research and legislative work for enacting laws such as the Law on Marine Science and Technology and the Law on Ocean Security. Fourthly, the marine system and mechanism should be improved to help provide some guaranty. In order to improve and modernize national governance systems and capacities, China needs to reforms its sea-related institutions as it is of important significance for building an ocean power and be able to comprehensively manage marine affairs. China also needs to seize this opportunity of national institutional reform, coordinate and clarify powers and functions of sea-related administration authorities (e.g. National Marine Committee, Ministry of Natural Resources, Ministry of Ecology and Environment, Ministry of Agriculture and Rural Affairs, General Administration of Customs and China Coast Guard), and further enact and improve marine laws and rules such as the Basic Law of the Sea and the Organizational Law of China Coast Guard on the basis of Decision on the Exercising of the Marine Right Safeguarding and Law Enforcement Functions and Powers by the China Coast Guard (adopted on June 22, 2018 and entered into force on July 1, 2018).67

3.6 Conclusion From the content and development trend of the UNCLOS, it is important to enrich and improve the principles and systems of the law of the sea by further learning from the development process of the UNCLOS and practical experiences of other countries. Although China has gradually improved its domestic legal system on the sea according to the UNCLOS, there are still some difficulties to overcome and challenges to face. China will need to transform its role and position in the following 67 For details on Plan on Deepening the Party and the Country’s Institutional Reform (21 March 2018) issued by the Central Committee of CPC, see https://www.xinhuanet.com/politics/2018-03/ 21/c_1122570517.htm. For details on Decision on the Exercising of the Marine Right Safeguarding and Law Enforcement Functions and Powers by the China Coast Guard adopted by the Standing Committee of the 13th National People’s Congress on June 22, 2018, see https://www.npc.gov.cn/ npc/xinwen/2018-06/22/content_2056585.htm.

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aspects during the process of establishing and rebuilding marine order and rules. That is to change from being a conformist to a formulator of marine rules, from a “vague” interpreter to an “accurate” speaker of marine rules, from an implementer to a supervisor, from a “distinctive” one to a general player of marine rules, and from a receiver to a provider of marine rules. In order to realize the above-mentioned goals, especially to become a leader in maintaining marine order and establishing marine rules and becoming a provider of marine public goods, China needs to take many measures in a focused and systematic manner and make continuous efforts to strengthen research on theories and relevant judicial cases in relation to the UNCLOS, enrich and improve the legal system of the sea by combining national practices. There is therefore a long way for China to go as it embarks going forward on maintaining the marine order, improving marine rules and strengthening the marine management mechanism.

References Gao, Z., & Jia, B. B. (2013). The nine-dash line in the South China Sea: History, status and implications . The American Journal of International Law, 107(1), 98–124. Gao, Z., & Jia, B. B. (2014) The Nine-dash line in the South China Sea: History, status and implications (2014 Edn., pp. 1–49). China Ocean Press. Jia, B. B. (2016). Rebuttal against the Fallacy of Argument on the Historic Rights in South China Sea in No. 143 Limits in the Sea of the USA Department of State, Law Review ((4), pp. 76–82). Jennings, R., & Watts, A. (Eds.). (1995).Oppenheim’s international law (Vol. 1, Ninth Edn., pp. 31– 32), translated by Wang Tieya, Chen Gongchuo, etc., Encyclopedia of China Publishing House. Jennings, R., & Watts, A. (2011). Oppenheim’s international law (Vol. 1, Ninth Edn., pp. 53–54) Oxford University Press. Keyuan, Z. (2001). History rights in international law and in China’s practice. Ocean Development and International Law, 32(2), 149–168. Kanehara, A. (2016). What Does A New International Legally Binding Instrument On Marine Biological Diversity Of Areas Beyond National Jurisdiction “under the UNCLOS” Mean? Sophia Law Review, 59(4), 53–73. Lingliang, Z., & Rao, Y. (Eds.). (2005). International law (pp. 110–113). Law Press. Mizukami, C. (2004). Formation of freedom of the sea (1). Hiroshima Hougaku, 28(1), 1–2. Ozaki, S. (1996). Aegean sea continental shelf case. In: R. Hatano, and S. Ozaki (Eds.), International court of justice: its judgments and advisory opinions (Vol. II (1964–1993), p. 129 and p. 146), Kokusai Shoin. Okuwaki, N. (2015). The Cooperation Obligations under the UNCLOS, The Practice of International Law edited by ShunjiYanai, Shinya Murase, Shinzansha (pp. 409–454). Pedrozo, R. (2018). Military activities in the exclusive economic zone: East Asia focus, The Journal of Island Studies, 7(2), 79. Souji, Y. (2000). Comparative study on domestic legal system concerning marine scientific research in the exclusive economic zone and the continental shelf, investigation report on various domestic legal systems dealing with marine scientific research in the exclusive economic zone and the continental shelf (pp. 2–3) edited by The Japan Institute of International Affairs. Sohn, L. B. etc. (2014). The law of the Sea in a Nutshell (2nd Edn., p. 17), Translated by Fu Kuncheng, etc., Shanghai Jiao Tong University Press. Sohn, L. B., Juras, K. G., Noyes, J. E., & Franckx, E. (2010). Law of the Sea in a Nutshell (2nd Edn., p. 30). Thomson Reuters.

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Sugihara, T. (2017). Basic principles of international law (2nd Edn., pp. 77–78), Yuhikaku. Tieya, W. (Ed.). (2004). International law (pp. 19–20). Law Press. Yongming, J. (2015). On the development and challenges of the law of the sea. Southeast Asian Affairs, 3, 1–10. Yongming, J. (2016). On development and challenge of the law of the sea. The Bulletin of the Institute for World Affairs Kyoto Sangyo University, 31, 191–209. Yongming, J. (2018a). On the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. Social Science, 2018(9), 12–21. Yongming, J. (2018b). Analysis of freedom and security of navigation in the South China sea from the perspective of the law of the sea, Chinese society of international law editor. Chinese Yearbook of International Law. Law Press, 2019, 410–438. Zhonghai, Z. (Ed.). (2004). International law (pp. 64–66). China University of Political Science and Law Press.

Chapter 4

Japanese Implementation of the United Nations Convention on the Law of the Sea Jun Tsuruta

4.1 Introduction The bill for the Basic Act on Ocean Policy was passed into law by a majority vote in a plenary session of the House of Councilors on April 20, 2007. The Basic Act on Ocean Policy was promulgated as Act No. 33 on April 27, 2007 and came into force on July 20, 2007.1 It established a Headquarters for Ocean Policy in the Cabinet so that the Government of Japan can advance ocean policy comprehensively across each ministry and agency. It also paved the way for the unified promotion of ocean development, use, and conservation. The Headquarters for Ocean Policy was subsequently established based on the Basic Act on Ocean Policy, and the Cabinet adopted the Basic Plan on Ocean Policy on March 18, 2008. The Cabinet then adopted the second Basic Plan on Ocean Policy on April 26, 2013, due to changes in ocean conditions and other developments over the five years since the first Basic Plan was prepared. The third Basic Plan on Ocean Policy was adopted on May 15, 2018.2

1 English translation of the Basic Act on Ocean Policy is available at https://www8.cao.go.jp/ocean/ policies/law/pdf/law_je.pdf (last accessed on May 20, 2020). See Okuwaki, Naoya, 2008, The Basic Act on Ocean Policy and Japan’s Agenda for Legislative Improvement, Japanese Yearbook of International Law, Vol. 51 (2008), pp. 164–216. 2 English translation of the third Basic Plan on Ocean Policy is available at https://www8.cao.go. jp/ocean/english/plan/pdf/plan03_e.pdf (last accessed on May 20, 2020). English summary of the third Basic Plan on Ocean Policy is available at https://www8.cao.go.jp/ocean/english/plan/pdf/pla n03_gaiyou_e.pdf (last accessed on May 20, 2020). 3 The resolution is available at http://www.shugiin.go.jp/internet/itdb_kaigirokua.nsf/html/kaigir okua/009916620070403010.htm (only in Japanese) (last accessed on May 20, 2020).

J. Tsuruta (B) Meijigakuin University, Tokyo, Japan e-mail: [email protected] © Kobe University 2021 D. Tamada and K. Zou (eds.), Implementation of the United Nations Convention on the Law of the Sea, Kobe University Monograph Series in Social Science Research, https://doi.org/10.1007/978-981-33-6954-2_4

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Concerning matters the government should consider when enforcing the Basic Act on Ocean Policy, the bill for the Basic Act on Ocean Policy includes the adopted resolution by the House of Representatives Committee on Land, Infrastructure, Transport and Tourism.3 It also included the adopted supplementary resolution by the House of Councilors Committee on Land and Transport.4 The contents of these two resolutions are essentially the same. They both state that in the enforcement of the Basic Act on Ocean Policy, Japan should “urgently prepare the domestic legal system concerning the various systems stipulated by the UNCLOS and other international agreements,” “in order to secure our country’s national interests concerning the sea and to fulfill our international obligations concerning the sea.” This is considering that “domestic laws have not well been arranged” for implementing the United Nations Convention on the Law of the Sea (UNCLOS) in Japan.

4.2 Japanese Laws for Implementing the UNCLOS The key domestic laws arranged by Japan when it ratified the UNCLOS in 1996 include: revisions made to the Act on Territorial Sea and Contiguous Zone (Act No. 30 of 1977) (hereinafter “the Territorial Sea Act”)5 ; and the enactment of the Act on the Exclusive Economic Zone and the Continental Shelf (Act No. 74 of 1996) (hereinafter “the EEZ Act”).6 In accordance with the classification of sea areas by the UNCLOS, these two laws define the territorial sea, the contiguous zone, the exclusive economic zone (“EEZ”) , and the continental shelf, and establish provisions on the application of some relevant laws to each sea area. As a result, the sea areas inside and nearby Japan consist of internal waters (sea areas within the baseline), territorial sea (the sea area basically within 12 nautical miles from the baseline), the contiguous zone (the sea area within 24 nautical miles from the baseline, excluding the territorial sea), the EEZ (the sea area within 200 nautical miles from the baseline, excluding the territorial sea, the seabed and the subsoil under it), and the continental shelf (the seabed within 200 nautical miles from the baseline, excluding the seabed of the territorial sea). (See the Fig. 4.1). The essence of the 1996 Territorial Sea Act and the EEZ Act, like that of the Territorial Sea Act before the revision, is to define the width of each sea area. These Acts lack provisions stipulating the rules for deciding what does and does not constitute an innocent passage in Japan’s territorial sea. Furthermore, they also do not include 4 The supplementary resolution is available at https://www.sangiin.go.jp/japanese/gianjoho/ketsugi/

166/f072_041901.pdf (only in Japanese) (last accessed on May 20, 2020). 1996 Territorial Sea Act is available at https://elaws.e-gov.go.jp/search/elawsSearch/elaws_ search/lsg0500/detail?lawId=352AC0000000030 (only in Japanese) (last accessed on May 20, 2020). See Akaha Tsuneo, 1989, Internalizing international law: Japan and the regime of navigation under the un convention on the law of the sea, Ocean Development & International Law, Vol. 20(2), pp. 113–139. 6 The EEZ Act is available at https://elaws.e-gov.go.jp/search/elawsSearch/elaws_search/lsg0500/ detail?lawId=408AC0000000074 (only in Japanese) (last accessed on May 20, 2020). 5 The

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Continental shelf

Fig. 4.1 Conceptual diagram of sea areas. Source Ministry of Foreign Affairs of Japan’s home page, “The UNCLOS and Japan” available at https://www.mofa.go.jp/mofaj/files/000243495.pdf (only in Japanese) (last accessed on May 20, 2020)

the rules for exercising the right of protection by Japan as the coastal State of the territorial sea, as well as the rules for exercising the right to regulate fishing in the EEZ by Japan as the coastal State. The 1996 Territorial Sea Act and the EEZ Act expect some relevant laws to be applied to each field for the management of fishery resources, the management of mineral resources, the protection and conservation of the marine environment, the assurance of the safety of navigation of ships, the management of immigration and emigration, the imposition and collection of tariffs, and the conduction and regulation of marine scientific research. Assuming the existence of the aforementioned relevant laws, Japan’s enforcement jurisdiction at sea could be exercised on the legal basis of “the enforcement of laws and regulations at sea,” “the prevention and suppression of crimes at sea” and “the detection and arrest of criminals at sea.” These are stipulated by the Japan Coast Guard Act (Act No. 28 of 1948) (hereinafter “the JCG Act)7 (Sect. 3 of this paper explains this in detail). Some laws were arranged when Japan ratified the UNCLOS in 1996. This included laws regarding the preservation and control of fishery resources in the Act on the Exercise of the Sovereign Right for Fishery, etc. in the Exclusive Economic Zone (Act

7 The

JCG Act is available at https://elaws.e-gov.go.jp/search/elawsSearch/elaws_search/lsg0500/ detail?lawId=323AC0000000028 (only in Japanese) (last accessed on May 20, 2020).

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No. 76 of 1996) (hereinafter “the EEZ Fishery Act”)8 and the Act on Preservation and Control of Living Marine Resources (Act No. 77 of 1996).9 The former regulated fishing activities by foreigners within the EEZ because the EEZ Act established the EEZ in adjacent seas. This gave Japan the sovereign right to living and non-living natural resources in this sea area. The latter is a law to manage living marine resources on the basis of fishing quotas. Furthermore, the Act Relating to the Prevention of Marine Pollution and Maritime Disaster (Act No. 136 of 1970) (hereinafter “the Marine Pollution Prevention Act”) was revised to improve the protection and conservation of the marine environment.10 Article 230 of the UNCLOS states that, in principle, “monetary penalties only” may be imposed on violations of domestic laws set for the protection of the marine environment by foreign ships. Pursuant to the Article, the Marine Pollution Prevention Act’s provisions for imprisonment with work, as punishment for violations, were abolished, fines were increased, and a system for prompt release (a bond system) was adopted. Additionally, the JCG Act was revised to clarify the requirements for exercising enforcement jurisdiction at sea and conducting more flexible and appropriate measures to prevent crimes. Japan’s maritime laws following the ratification of the UNCLOS include the Act on Setting Safety Zones for Maritime Construction, Etc. (Act No. 34 of 2007)11 enacted together with the Basic Act on Ocean Policy in April 2007, the Act on Navigation of Foreign Ships through the Territorial Sea and Internal Waters (Act No. 64 of 2008) (hereinafter “the Foreign Ships Navigation Act”) enacted in June 2008,12 the Act on Punishment of and Measures against Acts of Piracy (Act No. 55 of 2009) (hereinafter “the Japanese Piracy Act”) enacted in June 200913 ; and the Act 8 English

translation of the EEZ Fishery Act is available at http://www.japaneselawtranslation.go. jp/law/detail/?id=3270&vm=04&re=01&new=1 (last accessed on May 20, 2020). 9 English translation of the Act on Preservation and Control of Living Marine Resources is available at http://www.japaneselawtranslation.go.jp/law/detail/?id=1895&vm=04&re=01&new=1 (last accessed on May 20, 2020). 10 The Marine Pollution Prevention Act is available at https://elaws.e-gov.go.jp/search/elawsS earch/elaws_search/lsg0500/detail?lawId=345AC0000000136_20170908_426AC0000000073& openerCode=1 (only in Japanese) (last accessed on May 20, 2020). See Tsuruta Jun, 2019a, Japanese Measures against the Protection and Preservation of the Marine Environment under the UNCLOS and the IMO Treaties, Meiji Gakuin law journal, Vol. 106, pp. 93–116. 11 The Act on Setting Safety Zones for Maritime Construction, Etc. is available at https://elaws. e-gov.go.jp/search/elawsSearch/elaws_search/lsg0500/detail?lawId=419AC1000000034 (only in Japanese) (last accessed on May 20, 2020). 12 The Foreign Ships Navigation Act is available at https://elaws.e-gov.go.jp/search/elawsSearch/ elaws_search/lsg0500/detail?lawId=420AC0000000064 (only in Japanese) (last accessed on May 20, 2020). See Tsuruta Jun, 2012, Japanese Implementation of the UNCLOS: The Act on Navigation of Foreign Ships in the Territorial Sea and Internal Waters, Journal of East Asia and International Law, Vol. 5(1), pp. 279–282. 13 The Japanese Piracy Act is available at https://elaws.e-gov.go.jp/search/elawsSearch/elaws_sea rch/lsg0500/detail?lawId=421AC0000000055 (only in Japanese) (last accessed on May 20, 2020). English translation of the Act is available at Tsuruta Jun, 2011, The Japanese Act on the Punishment

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on Special Measures Concerning the Guarding of Japanese Ships in Pirate-Infested Waters (Act No. 75 of 2013) enacted in November 2013.14 To regulate the navigation of foreign ships that do not meet the criteria for innocent passage in Japan’s territorial sea, the provisions in the Foreign Ships Navigation Act focus on “passage” as prescribed in Article 18, Paragraph 2 of the UNCLOS, and not on “innocence” as prescribed in Article 19. The purpose of the Act is to maintain the order of the navigation of foreign ships in Japan’s territorial sea. Based on the provisions of Article 18, Paragraph 2 of the UNCLOS, Article 3 of the Foreign Ships Navigation Act states that “the navigation of foreign ships in territorial waters, etc. …must be continuous and expeditious.” Such prescribes the general method of navigation. Article 4, Paragraph 1 specifically stipulates that in territorial waters, the masters of foreign ships may not conduct navigation that includes stopping, anchoring, mooring, and wandering, except when it is necessary due to rough weather, maritime accidents, or to avert other dangers. The revised Foreign Ships Navigation Act was passed in 2012 (Act No. 71 of 2012) in response to an increase in foreign ships conducting territorial claim activities in Japanese territorial sea in recent years. In June 2010, the Act on Special Measures Concerning Cargo Inspections Etc. Conducted by the Government Taking into Consideration the United Nations Security Council Resolution 1874, Etc. (Act No. 43 of 2010)15 was passed as a domestic law. It implemented Resolution 1874 which was adopted unanimously by the United Nations Security Council for condemning the nuclear test by the Democratic People’s Republic of Korea (DPRK). Furthermore, it tightened sanctions by blocking funding for nuclear, missile and proliferation activities. This was achieved through targeted of and Measures against Piracy, The Aegean Review of the Law of the Sea and Maritime Law, Vol. 1(2), pp. 243–245. The Japanese Piracy Act makes acts of piracy under international law listed in Article 101 of the UNCLOS crimes under Japanese domestic law as well, clarifies what types of acts under what conditions are crimes under Japanese domestic law and how they are punished, allows punishment of persons who commit acts of piracy regardless of their nationality as an exercise of universal jurisdiction permitted by Article 105 of the UNCLOS, and is a law which aims at facilitating international cooperation by expanding the category of the ships to be protected by Japanese government to include the ships of all nations. See Tsuruta Jun, 2011, pp. 237–245. Tsuruta Jun, 2013a, The Guanabara Case - The First Prosecution of Somali Pirates under the Japanese Piracy Act, The International Journal of Marine and Coastal Law, Vol. 28(4), pp. 719–728., Tsuruta Jun (ed.), 2016, Studies on the Japanese act on punishment of and measures against piracy (in Japanese), Tokyo: Yushindo., Tsuruta Jun, 2018, The Sea Shepherd Case of 2007-2008: Interferences with Japanese Vessels Whaling for “Researching” the Maritime Ecosystem, Meiji Gakuin law journal, Vol. 105, pp. 195–213. 14 The Act on Special Measures Concerning the Guarding of Japanese Ships in Pirate-Infested Waters is available at https://elaws.e-gov.go.jp/search/elawsSearch/elaws_search/lsg0500/detail? lawId=425AC0000000075 (only in Japanese) (last accessed on May 20, 2020). The Act permits Japanese ships navigating sea areas subject to piracy to guard themselves using small arms. 15 The Act on Special Measures Concerning Cargo Inspections Etc. Conducted by the Government Taking into Consideration the United Nations Security Council Resolution 1874, Etc. is available at https://elaws.e-gov.go.jp/search/elawsSearch/elaws_search/lsg0500/detail?ope nerCode=1&lawId=422AC0000000043_20150801_000000000000000 (only in Japanese) (last accessed on May 20, 2020).

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sanctions on additional goods, persons and entities, widening the ban on arms imports-exports. United Nations Member States were also called to inspect all banned cargo to and from that country on the high seas, at seaports and airports—if they have reasonable grounds to suspect a violation. Since the Basic Act on Ocean Policy was enacted in 2007, Japanese laws in relation to “maritime safety and security” have much progressed.

4.3 Significance of Arrangement of Laws for Implementing the UNCLOS in Japan When Japan arranges the domestic laws to regulate the specific activities of private individuals by implementing the rights and obligations of State parties recognized under the UNCLOS, Japan’s administrative agencies can exercise jurisdiction based on the said laws. To implement them, Japan can exercise administrative jurisdiction through questioning during on-site inspections. When activities violate the laws, Japan can also exercise the criminal jurisdiction through investigation, arrest, confiscation, custody, referral, and prosecution. For example, when foreign nationals conduct fishing activities in Japan’s territorial sea, authorities can take measures against them based on the Act on Regulation of Fishing Operation by Foreign Nationals (Act No. 60 of 1967) which. This act prohibits fishing activities by foreign nationals in Japan’s territorial sea.16 Moreover, in cases where foreign ships stop in Japan’s territorial sea without prior notification to the Government of Japan, the authorities can take measures against them based on the Foreign Ships Navigation Act. However, what happens when the domestic laws implementing the rights and obligations recognized under the UNCLOS have not been arranged? Under the Japanese domestic legal system, there are some laws and regulations which presume that Japan has the right of hot pursuit under international law (i.e., Articles 3 and 5 of the 1996 Territorial Sea Act, Article 3 of the EEZ Act).17 Furthermore, there are also detailed provisions regarding the right to exercise hot pursuit (i.e., Article 14 of the Ordinance for Enforcement of the Law on the Exercise of the Sovereign Right for Fishery, Etc. in the Exclusive Economic Zone (Order of the Ministry of Agriculture, Forestry and Fisheries No. 33 of July 15, 1996).18 ) However, there is no domestic law that prescribes Japan has the right of hot pursuit 16 English translation of the Act on Regulation of Fishing Operation by Foreign Nationals is available at http://www.japaneselawtranslation.go.jp/law/detail/?id=3228&vm=04&re=01&new=1 (last accessed on May 20, 2020). 17 See Tsuruta Jun, 2013b, Japanese Laws and Regulations for Enforcing the Public Duty Performance at Sea against Foreign Ships, Journal of East Asia and International Law, Vol. 6(1), pp. 268–273. 18 English translation of the Ordinance for Enforcement of the Law on the Exercise of the Sovereign Right for Fishery Etc. in the Exclusive Economic Zone is available at http://www.japaneselawtran slation.go.jp/law/detail/?id=3273&vm=04&re=01&new=1 (last accessed on May 20, 2020).

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under international law. Article 111 of the UNCLOS and Article 23 of the Convention on the High Seas, which was adopted in Geneva on April 29, 1958, were enforced on September 30, 1962 and were acceded by Japan on July 30, 1968, prescribe the details governing the right of hot pursuit, the sea areas where authorities can exercise the right, and the lapse of the right. Moreover, in states like Japan where the Constitution incorporates international treaties into the domestic legal system (i.e., countries adopting the doctrine of incorporation), treaties concluded by them take legal effect as their domestic laws. Therefore, treaty provisions incorporated into Japan’s legal system can be direct legal grounds for exercising jurisdiction. It is not necessary to rewrite the contents of the treaty provisions into domestic laws. For example, the Government of Japan may exercise the right of hot pursuit to arrest the master of a foreign ship who is violating laws that regulate fishing activities in Japan’s territorial sea or EEZ. The Government of Japan may then pursue the ship onto the high seas. The legal grounds for taking these measures under domestic laws are derived from Article 212 and Article 213 of the Code of Criminal Procedure (Act. No. 131 of 1948).19 However, should the foreign ship escape and enter the territorial sea of the flag State or a third country, there is no law which serve as legal grounds for ceasing the pursuit. This is because the right of hot pursuit lapses under Article 111, Paragraph 3 of the UNCLOS. Also, Article 20, Paragraph 2 of the JCG Act identifies those ships subject to the use of weapons as those whose “passage that is not innocent passage as defined by Article 19 of the UNCLOS.” Under Article 20, Paragraph 2 of the JCG Act ships are identified not through the interpretation and application of laws enacted to regulate activities listed in Article 19, Paragraph 2 of the UNCLOS. Rather, they are identified through the application of the UNCLOS, which is incorporated into Japan’s domestic legal system. Concerning the exercise of judicial jurisdiction, Article 97, Paragraph 1 of the UNCLOS prescribes that in the case of a collision or any other navigation incident concerning a ship on the high seas, the exercise of judicial jurisdiction is permitted only for the flag State or the State of the nationality of the master. For example, in a case where a Japanese ship collided with a foreign ship on the high seas, and the Japanese ship sank and Japanese crew members died, even if professional negligence resulting in death was recognized as the master’s negligence by an application and interpretation of the Penal Code (Act No. 45 of April 24, 1907),20 Japan could not exercise criminal jurisdiction over the concerned master even if they enter Japanese territory after the collision; as long as the master is not a Japanese citizen. Such is pursuant to Article 97 of the UNCLOS. In accordance with Article 98, Paragraph

19 English translation of the Code of Criminal Procedure is available at http://www.japaneselawtran

slation.go.jp/law/detail/?id=3364&vm=04&re=01&new=1 (accessed on May 20, 2020). 20 English translation of the Penal Code is available at http://www.japaneselawtranslation.go.jp/law/

detail/?id=3432&vm=04&re=01&new=1 (accessed on May 20, 2020).

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2 of the Constitution of Japan,21 if a lawsuit were filed despite the lack of criminal enforcement and judicial jurisdiction under international law, the suit would be dismissed by judgment under Article 338, Item 1 of the Code of Criminal Procedure. The domestic measures for implementing international treaties in Japan must refer to the Constitution of Japan which takes the position that basically treaties shall be approved by the Diet (Article 73, Item 3 of the Constitution of Japan). It also states that approved treaties themselves are automatically promulgated by the Emperor (Article 7, Item 1). Furthermore, Chapter X “Supreme Law” of the Constitution of Japan states that “the treaties concluded by Japan and established laws of nations shall be faithfully observed” (Article 98, Paragraph 2). Therefore, the treaties concluded by Japan can be interpreted to be immediately incorporated into the Japanese domestic legal system by their promulgation (i.e., adoption of the doctrine of incorporation). For that reason, even if laws for implementing treaty rights and obligations are not arranged, treaties promulgated have legal effect as domestic laws within the Japanese legal system. In other words, since Japan has adopted the doctrine of incorporation, there is no need to enact domestic laws corresponding to the rights and obligations granted to Japan as a party of treaties. There is also no need to rewrite the contents of treaties into such laws. The arrangement of laws for implementing treaties within Japan is either a measure for cases where administrative agencies and courts find it difficult to directly apply and enforce treaty provisions, or as a supplement measure for reinforcing the implementation of the treaty concluded by Japan—even when they can directly apply and enforce treaty provisions. Consequently, the implementation of the UNCLOS in Japan requires some laws for cases where administrative agencies exercise their authority over private persons. If domestic laws were not prepared for the implementation of the UNCLOS, the policing authorities of investigation, arrest, confiscation, custody, referral, and prosecution could not be exercised. Fundamentally, only administrative measures voluntarily accepted by the counterparties involved could be exercised within the range permitted by the UNCLOS. Furthermore, they could only also be exercised within the range permitted by the JCG Act, which is one of the laws providing legal grounds for exercising jurisdiction at sea (This is explained further in the next section).22

4.4 Japan’s Exercising Enforcement Jurisdiction at Sea in Accordance with the UNCLOS This section examines what kinds of differences arise in the feasibility and methods of exercising jurisdiction at sea in cases where domestic laws have not been arranged 21 English translation of the Constitution of Japan is available at http://www.japaneselawtranslation.

go.jp/law/detail/?id=174&vm=04&re=01&new=1 (accessed on May 20, 2020). 22 See Tsuruta Jun, 2019b, A Side Reader on International Law, 2nd edition (in Japanese), Tokyo: Seibundoh, pp. 83–92.

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for implementing the UNCLOS in light of the JCG Act, which is a law providing the legal grounds for exercising jurisdiction at sea. The JCG Act combines what are referred to as organizational law and functional law with stipulations of the “purposes of establishment” in Article 1, “duties” in Article 2, and “affairs under its authority” in Article 5. Article 2, Paragraph 1 of the JCG Act makes the following provisions regarding the “duties” of the Japan Coast Guard (hereinafter, “JCG”). “The Japan Coast Guard shall, for the purpose of ensuring safety and order at sea, perform the duties concerning enforcement of laws and regulations at sea, maritime search and rescue, prevention of maritime pollution, maintenance of the order of vessels’ navigation at sea, prevention and suppression of crimes at sea, detection and arrest of criminals at sea, regulation of vessels’ traffic at sea, services concerning waterways and aids to navigation, other services for ensuring maritime safety and the services concerning matters incidental thereto.” Article 2, Paragraph 1 of the JCG Act has been formulated to “perform the duties concerning enforcement of laws and regulations at sea.” The Article provides the grounds for the JCG to exercise administrative enforcement jurisdiction at sea. The “laws and regulations” in the Article broadly mean the domestic laws of Japan (however, they do not include the treaties and other international agreements incorporated into Japan’s domestic legal system). The “enforcement of laws and regulations at sea” is also included in Article 5 describing the authority of JCG officers. This can be interpreted as a provision that comprehensively stipulates JCG officers’ authority to enforce laws and regulations. This type of provision arose because the JCG Act adopted the U.S. Coast Guard framework for enforcing laws at sea. Also, the “prevention and suppression of crimes at sea” in Article 2, Paragraph 1 of the JCG Act corresponds to exercising administrative enforcement jurisdiction for the prevention crimes at sea. When crimes have occurred, administrative enforcement jurisdiction is likewise exercised to minimize harm and prevent their expansion. Furthermore, the “detection and arrest of criminals at sea” in Article 2, Paragraph 1 of the JCG Act corresponds to exercising criminal enforcement jurisdiction through the detection of crimes and arrest of criminals. The Code of Criminal procedure regulates the exercise of these authorities. Article 31, Paragraph 1 of the JCG Act states, “In regard to crimes committed at sea, JCG officers and assistant officers shall, as prescribed by the Commandant of the Japan Coast Guard, perform the duties of a police official as provided by the Code of Criminal Procedure.” The “crimes committed at sea,” which are subject to the exercise of criminal enforcement of jurisdiction by JCG officers, are limited to crimes committed “at sea.” However, the law places no limitations on the nature of these “crimes.” Consequently, in cases where laws are arranged for implementing the UNCLOS, such laws have the significance of enabling the exercise of enforcement jurisdiction at sea with the explicit legal grounds in both organizational and functional means. These include: “enforcement of laws and regulations at sea,” “prevention and suppression of crimes at sea,” and “detection and arrest of criminals at sea” in Article 2, Paragraph 1 of the JCG Act. However, what happens then in cases when such laws are not yet arranged for implementing the UNCLOS?

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Recently, there have been many cases where foreign government ships enter Japanese territorial sea.23 Foreign government marine research ships conduct marine scientific research (hereinafter, “MSR”) inside Japan’s EEZ without prior notification. Furthermore, MSR is also being conducted in different sea areas or through methods that differ from those in the prior notification.24 In such cases, the Government of Japan demands that such foreign government ships leave Japan’s territorial sea and they cease such research activities inside Japan’s EEZ. Such exercise of enforcement jurisdiction by the Government of Japan could not be based on the provisions “enforcement of laws and regulations at sea,” “prevention and suppression of crimes at sea,” and “detection and arrest of criminals at sea” in Article 2, Paragraph 1, of the JCG Act. That is because the foreign government ships enjoy immunity from exercising enforcement jurisdiction by foreign states under international law, and there was no Japanese law that directly regulated MSR. Moreover, many Japanese laws that regulate ships explicitly exclude foreign warships and other government ships in the definition of “ships” with such wordings as “except for warships and other ships owned and operated by the government of each foreign country.” The partial revision to the JCG Act in August 2012 added provisions regarding duties in Article 2 and regarding affairs under its authority in Article 5. The added provision “maintenance of order of ships’ navigation at sea” is intended to clarify the legal grounds for the exercise of the enforcement jurisdiction at sea. Such is used for demanding foreign government ships to leave the Japanese territorial sea or to cease research activities inside Japan’s EEZ without prior notification. In other words, the activities of the foreign government ships are legally assessed not based on laws enacted and revised for implementing the UNCLOS, but rather directly based on the UNCLOS incorporated into Japan’s legal system. The 2012 revision of the JCG Act was designed to clarify that the JCG can exercise enforcement jurisdiction over foreign government ships. The legal basis of such is Article 2 and Article 5 of the JCG Act, providing for the “maintenance of order of vessels’ navigation at sea” in cases where the exercises of enforcement jurisdiction are permitted under international law. Such exercise of enforcement jurisdiction includes the exercise of the “right of protection” by a coastal state against a foreign ship whose conducts in its territorial sea are assessed as not “innocent, which is in accordance with Article 25, Paragraph 1 of the UNCLOS. It also includes the demand by a coastal state against a foreign ship conducting MSR in the EEZ without prior notification and without fulfilling obligations to cease such research activities, pursuant to Article 246, Paragraph 2 of the UNCLOS Article 246.

23 The

recent activities of foreign government ships in the waters surrounding Japan are available at https://www.mofa.go.jp/region/page23e_000021.html (last accessed on May 20, 2020). 24 The recent activities of foreign government marine research ships in Japan’s EEZ, etc. are available at https://www.kaiho.mlit.go.jp/info/topics/post-663.html (only in Japanese) (last accessed on May 20, 2020).

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4.5 Conclusion When Japan ratified the UNCLOS in 1996, Japan arranged some laws to implement the UNCLOS. However, “domestic laws have not well been arranged” for implementing the UNCLOS in Japan “in order to secure our country’s national interests concerning the sea and to fulfill our international obligations concerning the sea.” This has been highlighted in the resolutions which have been adopted when the National Diet’s committees passed the bill for the Basic Act on Ocean Policy. Since the Basic Act on Ocean Policy was enacted in 2007, in the face of the increase of the maritime safety and security-related issues occurring in the waters surrounding Japan and on the high seas, Japanese laws mainly regarding maritime safety and security have much progressed.

References Akaha, T. (1989). Internalizing international law: Japan and the regime of navigation under the un convention on the law of the sea. Ocean Development & International Law, 20(2), 113–139. Okuwaki, N. (2008). The basic act on ocean policy and Japan’s agenda for legislative improvement. Japanese Yearbook of International Law, 51(2008), 164–216. Tsuruta, J. (2011) The Japanese Act on the punishment of and measures against piracy. The Aegean Review of the Law of the Sea and Maritime Law, 1(2), 237–245. Tsuruta, J. (2012). Japanese implementation of the UNCLOS: The act on navigation of foreign ships in the territorial sea and internal waters. Journal of East Asia and International Law, 5(1), 279–282. Tsuruta, J. (2013a). Guanabara case -the First Prosecution of Somali Pirates under the Japanese Piracy Act. The International Journal of Marine and Coastal Law, 28(4), 719–728. Tsuruta, J. (2013b). Japanese laws and regulations for enforcing the public duty performance at sea against foreign ships. Journal of East Asia and International Law, 6(1), 268–273. Tsuruta, J. (2018). The Sea Shepherd Case of 2007-2008: Interferences with Japanese vessels whaling for “Researching” the maritime ecosystem. Meiji Gakuin law journal, 105, 195–213. Tsuruta, J. (2019a). Japanese measures against the protection and preservation of the marine environment under the UNCLOS and the IMO Treaties. Meiji Gakuin law journal, 106, 93–116. Tsuruta, J. (2019b). Side Reader on International Law, 2nd edition (in Japanese). Tokyo: Seibundoh.

Part III

Navigation

Chapter 5

A Chinese Perspective on the Innocent Passage of Warships, Contemporary Issues and Analysis Yinan Bao

5.1 Introduction Throughout the historical development of the international law of the sea, the endeavour to obtain a kind of balance between the freedom of navigation and the jurisdiction and security of the coastal States has given rise to several everlasting controversies. Perhaps, there is no better example of such controversy than the debate over the right of innocent passage of foreign warships in the territorial sea of a coastal state. As a matter of fact, the debate over the right of innocent passage of warships has not only caused great antagonism between maritime States in the past decades,1 but also witnessed extensive confrontations between China and the United States in the South China Sea in recent years. As time goes by, the tense situation in the South China Sea gradually becomes deteriorating. On 6 September 2018, the British amphibious warship HMS Albion sailed through the territorial sea of the Paracel Islands,2 adding the United Kingdom onto the list of challengers of China’s maritime claims in the South China Sea. Then, on 30 September 2018, the US guided-missile destroyer USS Decatur sailed within 12 nautical miles of Gaven and Johnson Reefs in the Spratly Islands, creating more tensions between the US and China.3 Indeed, 1 J. Kraska and R. Pedrozo, The Free Sea: The American Fight for Freedom of Navigation. Annapolis: Naval Institute Press, pp. 224–246 (2018) 2 T. Kelly, “Exclusive - British Navy Warship Sails Near South China Sea Islands, Angering Beijing”. 6 September 2018, Reuters, available at https://uk.reuters.com/article/uk-britain-chinasouthchinasea-exclusive/exclusive-british-navy-warship-sails-near-south-china-sea-islands-ang ering-beijing-idUKKCN1LM00V. Accessed 12 September 2018. 3 R. Browne, US Navy sails past contested islands in South China Sea amid U.S.-China tensions. 30 September 2018, CNN, available at https://edition.cnn.com/2018/09/30/politics/us-sails-southchina-sea/index.html. Accessed 3 October 2018.

Y. Bao (B) East China University of Political Science and Law, Shanghai, China e-mail: [email protected] © Kobe University 2021 D. Tamada and K. Zou (eds.), Implementation of the United Nations Convention on the Law of the Sea, Kobe University Monograph Series in Social Science Research, https://doi.org/10.1007/978-981-33-6954-2_5

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the US navy destroyers continued to sail within 12 nautical miles of the Chinese controlled islands and reefs on a regular basis in the ending months of 2018 as well as in 2019, culminated in November 2019 when the US navy destroyers unprecedentedly carried out similar operations twice within two days.4 This kind of practice was repeated in late April 2020.5 Evidently, these events illustrate the determined US challenges to the Chinese domestic laws and regulations, especially those concerning the restriction on the innocent passage of foreign warships in the Chinese territorial sea. This chapter will focus on the controversy and debate over this restriction, and provides a critical analysis of the issue of innocent passage of warships from a Chinese perspective.

5.2 Critique of the Traditional Chinese Position on the Innocent Passage of Warships As a rising maritime power, China has already adopted extensive domestic legislation related to the law of the sea.6 With regard to the issue of innocent passage in the territorial sea, China adopted its Law on the Territorial Sea and the Contiguous Zone in February 1992,7 two years before the entry into force of the 1982 United Nations Convention on the Law of the Sea,8 and four years before China’s accession to the Convention in May 1996. In Article 6 of that law, it stipulates that: Foreign ships for non-military purposes shall enjoy the right of innocent passage through the territorial sea of the People’s Republic of China in accordance with the law. Foreign ships for military purposes shall be subject to approval by the Government of the People’s Republic of China for entering the territorial sea of the People’s Republic of China.9

As such, it is obvious that the official Chinese position on the issue of innocent passage is that the right of innocent passage does not extend to foreign warships. Accordingly, should a foreign warship intend to pass though the Chinese territorial 4 J.

Ditzler and Doornbos. US Warships Conduct Back-to-Back Freedom of Navigation Passes in South China Sea, 21 November 2019. Stars and Stripes, available at https://www.stripes.com/news/pacific/us-warships-conduct-back-to-back-freedom-of-nav igation-passes-in-south-china-sea-1.608209. Accessed 25 May 2020. 5 S. LaGrone, “USS Bunker Hill Conducts 2nd South China Sea Freedom of Navigation Operation This Week”. 29 April 2020. USNI News, available at https://news.usni.org/2020/04/29/uss-bunkerhill-conducts-2nd-south-china-sea-freedom-of-navigation-operation-this-week. Accessed 25 May 2020. 6 K.Y. Zou, Implementation of the United Nations Law of the Sea Convention in China, in S. Lee & W. Gullett (ed.), Asia-Pacific and the Implementation of the Law of the Sea: Regional Legislative and Policy Approaches to the Law of the Sea Convention, Leiden: Brill Nijhoff, pp. 15–19 (2016). 7 Hereinafter referred to as the “Chinese Territorial Sea Law”. 8 Hereinafter referred to as the “UNCLOS” or the “Convention”. 9 This specific stipulation on the restriction of the passage of foreign military vessels in the Chinese territorial waters is based on the “Declaration of the Government of the People’s Republic of China on China’s Territorial Sea” (4 September 1958).

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sea, it would be compulsory for that warship to secure a formal approval from the Chinese government in advance. This is the so-called “prior authorization” requirement. Otherwise, the Chinese government will regard any unauthorized passage as a breach of its Territorial Sea Law, and accordingly, the Chinese authority may invoke Article 30 of the UNCLOS to require that warship “to leave the territorial sea immediately”. The Chinese position was reiterated in its official declaration when the Standing Committee of the People’s Congress of China ratified the UNCLOS on 15 May 1996.10

5.2.1 The Chinese Position Criticized Almost immediately after the adoption of the Chinese Territorial Sea Law, the Chinese position on the restriction of the passage of foreign warships in the Chinese territorial sea received criticism from foreign governments. For instance, the US lodged a diplomatic protest as early as in August 1992,11 accompanied by one of its first series of FON operations to challenge the Chinese Territorial Sea Law.12 The United Kingdom government also did not recognise the Chinese claim.13 More significantly, since 1992, the US has challenged the “prior authorization” requirement in the Chinese Territorial Sea Law on a regular basis. A statistic summary by the author of the present chapter based on the annual reports of the US FON operations reveals that from 1992 to the first half of 2020, the US FON operations has challenged the prior authorization requirement in 13 years, out of a total of 18 years that FON operations targeted China.14 And evidently, the US’s challenge to the “prior authorization” requirement through the FON operations has not stopped. In fact, the challenge has become even more intense in recent years, which resulted in more confrontations between the US Navy (USN) and the Chinese People’s Liberation Army Navy (PLAN) in the South China Sea. In addition to criticism from foreign governments, the Chinese Territorial Sea Law also attracts criticism from foreign academics. For instance, as early as 1994, that is two years after China adopted its Territorial Sea Law, Professor Hyun-Soo 10 Declaration and Statements, Oceans & Law of the Sea, United Nations, available at http:// www.un.org/depts/los/convention_agreements/convention_declarations.htm#China Upon ratification. Accessed 12 September 2018. The Convention entered into force in China on the same day. 11 J. A. Roach and R. W. Smith, Excessive Maritime Claims, Third Edition. Leiden: Martinus Nijhoff Publishers, 2012, p. 247. 12 D. Cheney, Annual Report to the President and the Congress (1993), United States Department of Defense, available at https://policy.defense.gov/Portals/11/Documents/gsa/cwmd/FY1 992%20DOD%20Annual%20FON%20Report.pdf. Accessed 13 September 2018. 13 J. A. Roach and R. W. Smith, Excessive Maritime Claims, Third Edition. Leiden: Martinus Nijhoff Publishers (2012), p. 247. 14 Statistics summarised from US Department of Defense Annual FON operations Reports (2020). Available at https://policy.defense.gov/OUSDP-Offices/FON/. Accessed 25 May 2020.

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Kim of Korea Naval Academy in his article titled “the 1992 Chinese Territorial Sea Law in the Light of the UN Convention” criticised that Article 6 of the Chinese Territorial Sea Law was not in conformity with relevant provisions in the UNCLOS.15 He advised that China “should revise its Territorial Sea Law in accordance with the UN Convention before it ratifies the Convention”.16 Professor Kim also accurately envisaged that the “discrepancies between the 1992 Territorial Sea Law and the UN Convention…are very likely to cause international disputes, the settlement of which would not be easy”.17 The rationale of the aforementioned criticism over the “prior authorization” requirement in the Chinese Territorial Sea Law can be briefly summarized as follows: First, it can be seen from the structure of section 3 “Innocent Passage in the Territorial Sea” in Part II of the UNCLOS that the core provisions governing the regime of innocent passage are contained in Subsection A, evidently titled “Rules Applicable to All Ships”. Since “warships” is naturally treated as a sub-category of “all ships”, all the rules in Subsection A should indiscriminately apply to warships. Accordingly, Article 17 that provides a general right of innocent passage through the territorial sea for “ships of all States” should naturally apply to warships. And so, it is also obvious that any restriction on the right of innocent passage for warships such as the “prior authorization” requirement in the Chinese Territorial Sea Law will not be deemed as compatible with Article 17 of the UNCLOS because such restriction amounts to the exclusion of warships to enjoy the right of innocent passage. Just as one scholar points out, “[s]uch a requirement implies innocent passage is exercised as a privilege rather than as a right. This contravenes the essence of the doctrine”.18 Second, it can be argued that the mere presence of a foreign warship in the territorial sea does not necessarily manifest the “threat or use of force against the territorial integrity or political independence”19 of the coastal State. Indeed, according to Article 19 (1) of the UNCLOS, “passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State”. It can be claimed that there is no direct “cause and effect” between the mere presence of a warship in the territorial sea and the threat to the peace and security of the coastal State. Moreover, it can also be inferred from the text of Article 20 of the UNCLOS that submarines enjoy the right of innocent passage in the territorial sea. Since military submarines are classified as warships, it is inconceivable that warships in general do not enjoy the right of innocent passage. In short, by closely examining the relevant provisions of the right of innocent passage in section 3, Subsection A of the Part II of the UNCLOS, it is only natural 15 To be specific, Articles 17 and 19 of the UNCLOS. See H.S. Kim, (1994). “The 1992 Chinese Territorial Sea Law in the Light of the UN Convention”, 43 International and Comparative Law Quarterly, p. 902. 16 Ibid, p. 904. 17 Ibid, p. 894. 18 T. Windsor, Innocent Passage of Warships in East Asian Territorial Seas, 3 Australian Journal of Maritime and Ocean Affairs (2011), p. 78. 19 Article 2 (4) of the United Nations Charter.

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and reasonable to conclude that warships do enjoy the right of innocent passage as merchant ships. It is also worth noting that Mr Tommy Koh, President of the UNCLOS III in 1982 made a statement shortly before the adoption of the final draft of the Convention: I think the Convention is quite clear on this point. Warships do, like other ships, have a right of innocent passage through the territorial sea, and there is no need for warships to acquire the prior consent or even notification of the coastal State.20

Based on the above analysis, foreign critics conclude that the restriction on the right of innocent passage of warships in the Chinese Territorial Sea Law is not in conformity with the UNCLOS.

5.2.2 The Chinese Position Defended Contrary to the criticism mentioned above, the Chinese official position has been adamantly defended by most Chinese scholars of international law, before and after the adoption of the Chinese Territorial Sea Law. Whereas a few Chinese international law scholars do recognise that the correct interpretation of relevant provision in the UNCLOS reveals that warships do enjoy the right of innocent passage in the territorial sea without the requirement of prior authorization,21 the majority sticks to the official position and spare no efforts to defend that position. Among them, three eminent scholars are worth mentioning. The first eminent scholar is Professor Shao Jin of Peking University. In his 1989 article titled “The Question of Innocent Passage of Warships after UNCLOS III”, Shao Jin summarized opinions of innocent passage of warships from various Chinese international law scholars before him,22 and pointed out that the title of Subsection A of Section III, Part II of the UNCLOS is a “misnomer” because it was left unchanged from a draft article during UNCLOS I.23 He also argued that “titles do not have independent legal existence and as such have no legal force”. 24 He further argued that the rejection of the “prior authorization” requirement “does not signify that warships were given the same right of innocent passage as merchant ships but rather that there was sharp disagreement and the matter was left open”.25 Finally, with regard to the 20 As cited in B. H. Oxman, “The Regime of Warships under the United Nations Convention on the Law of the Sea”, 24 Virginia Journal of International Law (1984), p. 854. 21 See Q.W., Zhu, “Warships Shall Not Enjoy the Right of Innocent Passage”, [1983] (2) Journal of Beijing College of Political Science and Law, pp. 44-50; and H.Y., Li, “Another Comment on the Innocent Passage of Foreign Warships in the Territorial Sea”, [1998] (4) Peking University Law Journal, pp. 88-91. Both articles are written in Chinese. No English translations are available. 22 Scholars cited by Shao Jin include: Zhou Genshen, Fu Chu, Liu Zheyung, Yu Ning, and Wei Ming. 23 J. Shao, “The Question of Innocent Passage of Warships”, 13 (1) Marine Policy (1989), pp. 59–60. 24 Ibid, p. 60. 25 Ibid, p. 61.

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innocent passage of submarines, he pointed out that submarines are “not necessarily military”, so it is not relevant to the “point at issue”, that is, the innocent passage of warships.26 Shao Jin concluded that the right of innocent passage of foreign warships “has never been generally recognized”, and therefore: Coastal states may…make the passage subject to previous notification or authorization, or to some other requirements; foreign warships intending to engage in such passage shall comply with the requirements prescribed in the laws and regulations of the coastal states.27

Another notable scholar is Professor Zhao Jianwen from the Institute of International Law, China Academy of Social Sciences. In his 2005 article “On the Interpretation Declarations by the State Parties to United Nations Convention on the Law of the Sea concerning the Issue of Innocent Passage of Warships through the Territorial Sea”, he commented that based on the declarations made by State parties to the UNCLOS, the UNCLOS as well as customary international law indeed permits warships’ innocent passage through the territorial sea. Meanwhile, the UNCLOS also allows coastal States to require prior notification or permission.28 He also cited similar opinions from Judge Budislav Vukas for supporting his own point of view.29 Zhao Jianwen further emphasized that the foreign warships should respect the requirement of the coastal States on prior notification or permission. More importantly, he pointed out that “[w]hether a State is threatened or not usually may not be judged by other States, especially by those States with powerful fleets”.30 From the “right to protect security interests”, UNCLOS does not prohibit coastal States to adopt laws or regulations on the “prior authorization” requirement.31 The official Chinese position was once again defended by Professor Jin Yongmin from the Institute of Law, Shanghai Academy of Social Science. In his March 2016 article titled “On the Regime of Innocent Passage in the Territorial Sea”, he argued that for those modern warships that equipped with high-threat cruise missiles, their unauthorized passage in the territorial sea of the coastal State will greatly threaten the sovereignty and peace of the coastal State, and the passage will also highly likely to cause “security incidents”.32 He also emphasized that according to Article 19 (l) of the UNCLOS, “any other activity not having a direct bearing on passage” will be deemed as “not innocent”. According to Professor Jin, unauthorized passage may 26 Ibid. 27 Ibid,

p. 67.

28 J. W. Zhao, “On the Interpretation Declarations by the State Parties to United Nations Convention

on the Law of the Sea concerning the Issue of Innocent Passage of Warships through the Territorial Sea”, [2005] (2) China Oceans Law Review (2005), pp. 305–306. 29 B. Vukas, The Law of the Sea: Selected Writings. Leiden: Martinus Nijhoff Publishers, 2004 (2004), p. 140. 30 Zhao, On the Interpretation Declarations by the State Parties to United Nations Convention on the Law of the Sea concerning the Issue of Innocent Passage of Warships through the Territorial Sea, p. 308. 31 Ibid. 32 Y.M. Jin, On the Regime of Innocent Passage in the Territorial Sea. [2016] (2) Chinese Review of International Law, p. 68.

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well constitute “political and legal provocation” and will fall into category of activity in Article 19 (l).33 It is worth noting that Professor Jin’s arguments was later reflected in a statement made by admiral Sun Jianguo, then deputy chief of China’s joint staff in July 2016 at a closed forum in Beijing.34 To sum up, the majority of Chinese international law scholars holds the opinion that China does have the right to set out “reasonable” restrictions on the passage of foreign warships in its territorial sea, based on the following reasons. First, there is no unified State practice on the issue of innocent passage of warships among State parties to the UNCLOS. This can be generalized from the drafting history of the UNCLOS as well as State practice after the adoption of the UNCLOS. Second, the “prior authorization” requirement does not contravene relevant provisions of the UNCLOS. Third, the mere presence of modern warships that equipped with high threat weapons in the territorial sea of a coastal State does pose potential threat to the sovereignty and peace of the coastal State. In short, there is sufficient reason for the coastal State to require prior authorization. Fourth, unauthorized passage of foreign warships can be deemed as political or legal provocation against the coastal State, and accordingly, such passage will be classified as not innocent. The coastal State shall have the right to set restriction to regulate such passage.

5.3 “Unauthorized Passage” of US Warships in the South China Sea and the Chinese Response Whereas the theoretical debate on the right of innocent passage of warships continues, it is actual State practice that draws attention. As has been mentioned above, from 1992 to the first half of 2020, the US FON operations challenged the “prior authorization” requirement in 13 years. Notably, from 2011 to May 2020, the FON operations challenged the “prior authorization” requirement 10 years in a row, and it has become much more publicized since October 2015, in the form of unauthorized passage of guided-missile destroyers and cruisers in the South China Sea. The challenge since October 2015 is summarized in the table below.

33 Ibid. 34 Erik Slavin Chinese Admiral Contests Freedom of Navigation in South China Sea”, 19 July 2016,

Star & Stripes, available at https://www.stripes.com/news/chinese-admiral-contests-freedom-ofnavigation-in-south-china-sea-1.419813. See also, Kraska and Pedrozo The Free Sea: The American Fight for Freedom of Navigation, p. 280.

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5.3.1 Characteristics of the “Unauthorized Passage” of US Warships in the South China Sea 2015–2019 Several characteristics of the “unauthorized passage” of US warships can be generalized from Table 5.1. First, the frequency of such kind of challenge is notably high. As can be seen from Table 5.1 above, from October 2015 to May 2020, over a period of less than 5 calendar years, US warships have conducted “unauthorized passage” to challenge Table 5.1 US FON operations challenged Chinese “prior authorization“ requirement, October 2015–May 2020 Date of challenge Event

Geographic location

27/10/2015

USS Lassen sailed within 12 nm of Subi Reef

Spratly Islands

29/01/2016

USS Curtis Wilbur sailed within 12 nm of Triton Island

Paracel Islands

10/05/2016

USS William P. Lawrence sailed within 12 nm of Fiery Cross Reef

Spratly Islands

02/07/2017

USS Stethem sailed within 12 nm of Triton Island

Paracel Islands

17/01/2018

USS Hopper sailed within 12 nm of Scarborough Reef Scarborough Reef

30/09/2018

USS Decatur sailed within 12 nm of Gaven Reef and Johnson Reef

Spratly Islands

26/11/2018

USS Chancellorsville sailed within 12 nm of the territorial sea of Paracel Islands

Paracel Islands

07/01/2019

USS McCampbell sailed within 12 nm of the territorial sea of Paracel Islands

Paracel Islands

06/05/2019

USS Preble and USS Chung Hoon sailed within 12 nm Spratly Islands of Gaven Reef and Johnson Reef

20/05/2019

USS Preble sailed within 12 nm of Scarborough Reef

Scarborough Reef

28/08/2019

USS Wayne E. Meyer sailed within 12 nm of Fiery Cross Reef and Mischief Reef

Spratly Islands

13/09/2019

USS Wayne E. Meyer sailed within 12 nm of the territorial sea of Paracel Islands

Paracel Islands

22/11/2019

USS Wayne E. Meyer sailed within 12 nm of the territorial sea of Paracel Islands

Paracel Islands

25/01/2020

USS Montgomery sailed within 12 nm of Johnson Reef and Fiery Cross Reef

Spratly Islands

10/03/2020

USS McCampbell sailed within 12 nm of the territorial sea of Paracel Islands

Paracel Islands

28/4/2020

USS Barry sailed within 12 nm of the territorial sea of Paracel Islands Paracel Islands

29/4/2020

USS Bunk Hill sailed within 12 nm of Gaven Reefs

Source Prepared by the author

Spratly Islands

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the “prior authorization” requirement in the Chinese Territorial Sea Law 17 times. That is more than three times on average per year. Second, the challenge covers extensive geographic locations in the South China Sea. As can be seen in Table 5.1, the 17 unauthorized passages cover three of the four major island groups in the South China Sea, namely, the Spratly Islands (7 times), the Paracel Islands (8 times), and the Scarborough Reef (twice). Only the Pratas Islands, located closer to the Guangdong Province of the mainland China and currently under the effective administration of the Chinese (Taiwanese) authorities, is immune from such unauthorized passage. Third, the warships used for the “unauthorized passage” to challenge the Chinese Territorial Sea Law are highly threatening. Indeed, all the US warships that participated in those “unauthorized passage” operations are first class aegis system equipped, guided-missile destroyers and cruisers, which generally possess hightech, high threat attacking weapons. Compared with the HMS Albion, the less armed British amphibious warship that conducted “unauthorized passage” on 6 September 2018, the US warships are definitely more threatening.

5.3.2 Reappraisal of the Chinese Response to the US Challenge In response to the US warships’ unauthorized passage on 30 September 2018, the Chinese Ministry of Foreign Affairs Spokesperson Hua Chunying commented that “the Chinese Navy identified and warned the ship to leave in accordance with laws”.35 She adamantly criticized the US challenge: [T]he US chose to ignore the shared will of regional countries and take on one provocative operation after another. It has, under the pretext of “navigation and overflight freedom”, violated basic norms governing international relations, threatened China’s sovereignty and security, and disturbed regional peace and stability…

She also urged the US to “correct its mistakes” and “stop provocative actions”, and concluded her remarks with a reiteration of the official Chinese stance: The Chinese side will take all necessary measures to safeguard its national sovereignty and security.36

Hua Chunying’s remarks epitomize the “classic” Chinese response to the US FON operations and the US challenges against the Chinese domestic laws, regulations and maritime claims, and was actually repeated by other spokesperson following

35 Foreign

Ministry Spokesperson Hua Chunying’s Remarks on US Warship’s Illegal Entry into Waters Close to Nansha Islands”, 2 October, 2018, Ministry of Foreign Affairs of PRC, available at https://www.fmprc.gov.cn/mfa_eng/xwfw_665399/s2510_665401/2535_665405/t1601570. shtml. Accessed 3 October 2018. 36 Ibid.

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the similar unauthorized passage of US warships in 2019.37 The response clearly conveys at least four meanings. First, the US warship’s “unauthorized passage” constitutes a breach of the rules of international law. As has been mentioned above, China sticks to the interpretation in the UNCLOS that foreign warships do not enjoy the right of innocent passage in the territorial sea of the coastal State. China is eligible to adopt domestic laws and regulations to set reasonable restrictions on the passage of foreign warships. Such domestic laws and regulations are fully permissible under the UNCLOS and customary international law. On the other hand, it is US that defies the domestic laws and regulations of China, and intentionally “show-off” its military power to threaten China. In essence, the US FON operations are not about “freedom of navigation” in the South China Sea. Instead, they are “military freedom of navigation” aiming at the defying domestic laws and regulations of the coastal States in the South China Sea. This kind of practice definitely “violated basic norms governing international relations”. Second, the US warship’s “unauthorized passage” is politically motivated and provocative. China in recent years endeavours to advocate that the South China Sea should be built into “a sea of peace, a sea of friendship and a sea of co-operation”.38 Against this background, China naturally views the US FON operations as politically driven and provocative. In China’s point of view, the US FON operations in the South China Sea have little to do with the maintenance of peace and security in the South China Sea. Instead, the frequent “unauthorized passage” only contributes to destabilize the status quo of the South China Sea. Moreover, the frequent confrontation between China and the US arising from “unauthorized passage” may have negative impact on the ongoing negotiations on the “Code of Conduct in the South China Sea” between China and ASEAN including littoral States of the South China Sea. Third, the US warship’s “unauthorized passage” poses a real threat to the Chinese sovereignty and security in islands and reefs in the South China Sea. In recent years, China frequently emphasizes its inherent right to defend its sovereignty and territorial integrity in several disputed islands and reefs in the South China Sea. Evidently, to dispatch powerful guided-missile destroyers and cruisers to pass through or sail close Chinese territorial sea is by no means “friendly” at all. Instead, such operations can only be deemed as directly threatening China’s sovereignty and territorial integrity in the disputed islands and reefs in the South China Sea. Last but not least, China reserves its legal right under international law to tackle with any breach of its domestic law by “take all necessary measures”. The incident 37 For example, see “Foreign Ministry Spokesperson Geng Shuang’s Regular Press Conference on May 6, 2019”, 6 May 2019, Ministry of Foreign Affairs of PRC, https://www.fmprc. gov.cn/mfa_eng/xwfw_665399/s2510_665401/2511_665403/t1661163.shtml; “Foreign Ministry Spokesperson Lu Kang’s Regular Press Conference on May 20, 2019”, 20 May 2019, Ministry of Foreign Affairs of PRC, available at https://www.fmprc.gov.cn/mfa_eng/xwfw_665399/s2510_ 665401/2511_665403/t1665026.shtml. Accessed 10 June 2019. 38 X.M. Liu, “Who is really behind the tensions in the South China Sea?”, 9 May 2016, Financial Times, available at https://www.ft.com/content/147a3ff6-12d2-11e6-91da-096d89bd2173. Accessed 4 October 2016.

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on 30 September 2018 clearly illustrates this point. It is reported that during the “unauthorized passage” of USS Decatur around the vicinity of Gaven Reef, a Chinese destroyer “approached USS Decatur in an unsafe and unprofessional maneuver” which forced the US destroyer to “maneuver to prevent a collision”.39 This incident is reminiscent of the 1988 “Black Sea Bumping Incident”,40 though in the recent incident, the “bumping” did not happen. It was 45 yards short of the “bumping” between the Chinese destroyer and the US destroyer. In the present author’s point of view, the “classic” Chinese response to the US warship’s “unauthorized passage” may not be convincing or effective. The reasons are elaborated as follows. First of all, nowhere in the UNCLOS specifies that the coastal State is eligible to adopt domestic laws and regulations to restrict the innocent passage of foreign warships in its territorial sea.41 Article 21 of the UNCLOS does list several matters fall into the category which is subjected to the laws and regulations of the coastal State relating to innocent passage, but none is related to “prior authorization”. To accuse that the US warship’s “unauthorized passage” violates rules of international law may not be well-grounded. Secondly, if might be true that the US FON operations are politically motivated and intentionally provocative. Nevertheless, it is worth noting that the US FON operations also challenge Vietnam’s “prior notification” requirement in its domestic law, in Fiscal Years 2013, 2015, 2016, 2017 and 2018,42 and several years before when Vietnam still had the “prior authorization” requirement. Indeed, in the fiscal year of 2018, the US also challenged many other States as well, such as Albania, Croatia, Egypt, etc.43 It can be argued that the US is somehow unbiased in this kind of challenge, so the political factor and implication of the “unauthorized passage” of US warships in the Chinese territorial sea may not be as strong as the Chinese government feels. Moreover, China accuses that the passage of the US warships is highly threatening to the sovereignty and security in the islands in the South China Sea. However, except the recent “near-bumping” incident between the Chinese and US destroyers, no serious incidents has ever happened, and there has not been a single Chinese casualty over the past several years. Finally, by asserting “take any necessary measures”, the potential escalation of confrontation between China and the US in the South China Sea is looming, which 39 B Starr, R. Browne and B. Lendon, “Chinese warship in ’unsafe’ encounter with US destroyer, amid rising US-China tensions”, 2 October 2018, CNN News, available at https://edition.cnn.com/ 2018/10/01/politics/china-us-warship-unsafe-encounter/index.html. Accessed 4 October 2018. 40 Kraska and Pedrozo, The Free Sea: The American Fight for Freedom of Navigation, pp. 234–236. 41 Anh Duc Ton, a Commander and lecturer at the Vietnamese Naval Academy, support this assertion. Anh Duc Ton, Innocent Passage of Warships: International Law and the Practice of East Asian Littoral States, 1 (2016) Asia-Pacific Journal of Ocean Law and Policy, p. 212. 42 Based on US Department of Defense Annual FON operations Reports from these fiscal years. Available at: https://policy.defense.gov/OUSDP-Offices/FON/. Accessed 4 June 2019. 43 Annal Freedom of Navigation Report 2018, available at https://policy.defense.gov/OUSDP-Off ices/FON/ .

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is itself a negative catalyst to maintain the peace, security and stability in the region. Obviously, the US will not be discouraged by the Chinese statement, as can be seen in the statement made by US Lt. Gen. Kenneth McKenzie, the director of the US Joint Staff in May 2018, after a previous US FON operation in the South China Sea.44 To make the situation in the South China Sea even worse, in February 2019, Admiral Phil Davidson, then the commander of U.S. Indo-Pacific Command publicly claimed that future South China Sea FON operations would include US allies such as Japan, Australia, New Zealand, Canada, among others.45

5.4 To Change or not to Change, that Is the Question The above section critically analyses the Chinese response to the US FON operations concerning the challenge to the “prior authorization” requirement in the Chinese Territorial Sea Law. The present author has argued that the Chinese response is neither effective nor convincing. It is against this background that a crucial question needs to be answered: in the near future, whether China should amend its Territorial Sea Law so as to alleviate the adverse effect of the US FON operations in the South China Sea?

5.4.1 Benefits for Changing the Current Chinese Position Whereas most Chinese international law scholars stick to the official Chinese position on restricting the right of innocent passage of foreign warships, a few Chinese scholars do advocate that the Chinese government had better change the current position. Professor Zou Keyuan, for instance, in his 1998 article “Innocent Passage for Warships: The Chinese Doctrine and Practice” argued that China “is obliged to bring its relevant domestic laws and regulations in line with the corresponding provisions of the Convention”, for the reason that the general norm pacta sunt servanda (“treaty must be observed”) “obliges states to carry out in good faith their obligations arising from treaties”. The Chinese Territorial Sea Law as a domestic law cannot be served as an excuse for not performing the obligation in the UNCLOS.46 In addition, Professor Zou pointed out that the inconsistency between the Chinese Territorial Sea Law and the UNCLOS concerning the right of innocent passage of warships “may 44 B. Werner, Pentagon Pledges More Freedom of Navigation Operations in South China Sea, 31 May 2018, USNI News, available at https://news.usni.org/2018/05/31/34016. Accessed 4 October 2018. 45 B. Werner, Future South China Sea FONOPS Will Include Allies, Partners, 12 February 2019, USNI News, available at https://news.usni.org/2019/02/12/41070. Accessed 4 June 2019. 46 K. Y. Zou, “Innocent Passage for Warships: The Chinese Doctrine and Practice”. 29 Ocean Development and International Law (1998), pp. 212–215.

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not be favourable for the improvement of China’s image and reputation”.47 More than twenty years has passed since the publication of Professor Zou’s 1998 article, his insightful remark remains true today. Indeed, the recent increasing tension between China and the US over the issue of US warship’s “unauthorized passage” in the South China Sea contributes nothing to the building of “sea of peace, sea of friendship and sea of cooperation”. On the contrary, such confrontation may well smear the Chinese image before the international community, and before the littoral States of the South China Sea in particular. To change the current Chinese position, that is, amend the 1992 Chinese Territorial Sea Law, should be considered a priority to counteract the increasing tension between China and the US in the South China Sea, and hopefully bring back an amicable environment in the region. Obviously, to amend its domestic law so as to make it in line with the UNCLOS will also improve the image of China as a law-abiding country, a country sticks to the international rule of law.48

5.4.2 The Option of “Prior Notification”, or the “Right of Innocent Passage of Warships”? One last question needs to be answered is: in case of amending the 1992 Chinese Territorial Sea Law, whether the Chinese government should adopt the option of “prior notification”, or the “right of innocent passage of warships”? It is worth noting that when ratified the UNCLOS in May 1996, the Chinese government declared that the provisions of the UNCLOS “shall not prejudice the right of a coastal State to request, …a foreign State to obtain advance approval from or give prior notification to the coastal State for the passage of its warships through the territorial sea of the coastal State.”49 It is obvious that unlike the 1992 Territorial Sea Law which only stipulates the “prior authorization” requirement, the 1996 declaration does recognize the “prior notification” requirement, which, in some Chinese scholars’ view, would be more consistent with the UNCLOS than that of the prior authorization.50 Indeed, some States that previously had “prior authorization” requirement in their domestic laws chose to amend their laws to “prior notification”, such as Vietnam51

47 Ibid,

p. 214.

48 See also: S. Yee, “Sketching the Debate on Military Activities in the EEZ: An Editorial Comment”,

9 (1) Chinese Journal of International Law (2010), p. 5. 49 Declaration and Statements, Oceans & Law of the Sea, United Nations, available at http://www.un.org/depts/los/convention_agreements/convention_declarations.htm#ChinaUpon ratification. Accessed 12 September 2018 (2018). 50 N. Yu, On the Innocent Passage of Warships. [1985] 6 Foreign Legal Science, pp. 40-44, as cited in Zou, Innocent Passage for Warships. The Chinese Doctrine and Practice, p. 205. 51 In Article 12 of the 2012 Law of the Sea of Vietnam. See C. D. Guymon, (ed.), Digest of United States Practice in International Law 2013, Office of the Legal Adviser, United States Department of State, 2013, p. 371.

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and Bangladesh.52 However, it is worth noting that the US FON operations have continued to challenge Vietnam since 2013, for the US deems that “prior notification” is an excessive restriction on the right of the innocent passage of warships. A more radical change is to fully recognize the right of innocent passage of warships in the territorial sea, without even the “prior notification” requirement. That change will bring China into the group of more than 120 State parties to the UNCLOS who do not restrict the innocent passage of warships in the territorial sea. If so, it will thoroughly solve the aforementioned controversy and prevent further confrontation between China and the US concerning the innocent passage of warships in the South China Sea. However, from the perspective of protecting Chinese national security and territorial sovereignty concerning the islands in the South China Sea, the present author predicts that China will not opt to change its original position to fully recognize the right of innocent passage of warships in the territorial sea anytime soon. Nevertheless, with the ongoing great expansion of Chinese modern fleets since the last decade, it is of great importance that the PLAN warships will not be hampered by any restriction on their passage in foreign territorial waters. Therefore, strategically speaking, though the “prior notification” requirement will not solve the issue completely, it is perhaps a suitable and viable option that China may choose to adopt in the near future.

5.5 Conclusions During the writing of this chapter, events in the South China Sea in the first half of 2020 unfold the increasing tension between China and the US concerning the “unauthorized passage” of US warships in vicinity of Chinese occupied islands and reefs in the South China Sea. The controversy and debate on the issue of the right of innocent passage of foreign warships in the territorial sea of the coastal State are far from settled. Perhaps, the confrontation between China and the US over this specific issue will not be alleviated anytime soon, unless China voluntarily amends its 1992 Territorial Sea Law to make it in conformity with the UNCLOS. Therefore, the present author holds the opinion that China shall consider to make the plan to amend its Territorial Sea Law as a priority. To change the current position is urgent, obligatory, and perhaps essential to truly build the South China Sea into “a sea of peace, sea of friendship and sea of cooperation”.

52 In its 2001 declaration when ratified the UNCLOS. See “Declaration and Statements, Oceans & Law of the Sea”, United Nations, available at http://www.un.org/depts/los/convention_agreements/ convention_declarations.htm#China Upon ratification. Accessed 4 October 2018.

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References Annal Freedom of Navigation Report, Fiscal Year 2018, from https://policy.defense.gov/OUSDPOffices/FON/. Accessed 4 June 2019. Browne, R. (2018). US Navy sails past contested islands in South China Sea amid U.S.-China tensions, 30 September 2018, CNN, from https://edition.cnn.com/2018/09/30/politics/us-sailssouth-china-sea/index.html. Accessed 3 October 2018. Cheney, D. (1993). Annual Report to the President and the Congress, United States Department of Defense, from https://policy.defense.gov/Portals/11/Documents/gsa/cwmd/FY1992%20DOD% 20Annual%20FON%20Report.pdf. Accessed 13 September 2018. Declaration and Statements, Oceans & Law of the Sea, United Nations, from http://www. un.org/depts/los/convention_agreements/convention_declarations.htm#China Upon ratification. Accessed 12 September 2018. Declaration and Statements, Oceans & Law of the Sea, United Nations, from http://www. un.org/depts/los/convention_agreements/convention_declarations.htm#China Upon ratification. Accessed 4 October 2018. Ditzler, J., & Doornbos, C. (2019). US Warships Conduct Back-to-Back Freedom of Navigation Passes in South China Sea, 21 November 2019. Stars and Stripes, from https://www.stripes.com/news/pacific/us-warships-conduct-back-to-back-freedom-of-nav igation-passes-in-south-china-sea-1.608209. Accessed 25 May 2020. Foreign Ministry Spokesperson Geng Shuang’s Regular Press Conference on May 6, 2019, 6 May 2019, Ministry of Foreign Affairs of PRC, https://www.fmprc.gov.cn/mfa_eng/xwfw_665399/ s2510_665401/2511_665403/t1661163.shtml. Foreign Ministry Spokesperson Lu Kang’s Regular Press Conference, 20 May 2019, Ministry of Foreign Affairs of PRC, from https://www.fmprc.gov.cn/mfa_eng/xwfw_665399/s2510_665401/ 2511_665403/t1665026.shtml. Accessed 10 June 2019. Foreign Ministry Spokesperson Hua Chunying’s Remarks on US Warship’s Illegal Entry into Waters Close to Nansha Islands, 2 October, 2018, Ministry of Foreign Affairs of PRC, from https://www.fmprc.gov.cn/mfa_eng/xwfw_665399/s2510_665401/2535_665405/t16 01570.shtml. Accessed 3 October 2018. Jin, Y. M. (2016). On the regime of Innocent Passage in the Territorial Sea. Chinese Review of International Law, 2, 60–70. Kelly, T. (2018). Exclusive—British Navy Warship Sails Near South China Sea Islands, Angering Beijing, 6 September 2018, Reuters, from https://uk.reuters.com/article/uk-britain-china-southc hinasea-exclusive/exclusive-british-navy-warship-sails-near-south-china-sea-islands-angeringbeijing-idUKKCN1LM00V. Accessed 12 September 2018. Kim, H. S. (1994). The 1992 Chinese Territorial Sea law in the light of the UN convention. 43 International and Comparative Law Quarterly, 894–904. Kraska, J., & Pedrozo, R. (2018). The Free Sea: The American Fight for Freedom of Navigation (pp. 224–246). Annapolis: Naval Institute Press. LaGrone, S. (2020). USS Bunker Hill Conducts 2nd South China Sea Freedom of Navigation Operations. This Week, 29 April 2020. USNI News, from https://news.usni.org/2020/04/29/uss-bun ker-hill-conducts-2nd-south-china-sea-freedom-of-navigation-operation-this-week. Accessed 25 May 2020. Li, H. Y. (1998). Another Comment on the Innocent Passage of Foreign Warships in the Territorial Sea. (4) Peking University Law Journal, 88–91. Liu, X. M. (2016). Who is really behind the tensions in the South China Sea? 9 May 2016, Financial Times, from https://www.ft.com/content/147a3ff6-12d2-11e6-91da-096d89bd2173. Accessed 4 October 2018. Oxman, B. H. (1984). The Regime of Warships under the United Nations Convention on the Law of the Sea. Virginia Journal of International Law, 24, 809–863. Roach, J. A., & Smith, R. W. (2012). Excessive Maritime Claims (3rd ed.). Leiden: Martinus Nijhoff Publishers.

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Shao, J. (1989). The Question of Innocent Passage of Warships. Marine Policy, 13(1), 56–67. Slavin, E. (2019). Chinese Admiral Contests Freedom of Navigation in South China Sea, 19 July 2016, Star & Stripes, from https://www.stripes.com/news/chinese-admiral-contests-freedom-ofnavigation-in-south-china-sea-1.419813. Accessed 8 June 2019. Starr, B., Browne, R., & B. Lendon. (2018). Chinese warship in ‘unsafe’ encounter with US destroyer, amid rising US-China tensions”, 2 October 2018, CNN News, from https://edition.cnn. com/2018/10/01/politics/china-us-warship-unsafe-encounter/index.html. Accessed 4 October 2018. Statistics summarised from US Department of Defense Annual FON operations Reports, https:// policy.defense.gov/OUSDP-Offices/FON/. Accessed 25 May 2020. Ton, A. D. (2016). Innocent Passage of Warships: International Law and the Practice of East Asian Littoral States. Asia-Pacific Journal of Ocean Law and Policy, 1, 210–243. Vukas, B. (2004). The Law of the Sea: Selected Writings. Leiden: Martinus Nijhoff Publishers. Werner, B. (2018). Pentagon Pledges More Freedom of Navigation Operations Freedom of navigation operations in South China Sea, 31 May 2018, USNI News, from https://news.usni.org/2018/ 05/31/34016. Accessed 4 October 2018. Werner, B. (2019). Future South China Sea FONOPS Will Include Allies, Partners, 12 February 2019, USNI News, from https://news.usni.org/2019/02/12/41070. Accessed 4 June 2019. Windsor, T. (2011). Innocent Passage of Warships in East Asian Territorial Seas. Australian Journal of Maritime and Ocean Affairs, 3(3), 73–81. Yee, S. (2010). Sketching the Debate on Military Activities in the EEZ Exclusive Economic Zone (EEZ): An Editorial Comment. Chinese Journal of International Law, 5(1), 1–7. Yu, N. (1985). On the Innocent Passage of Warships. Foreign Legal Science, 6, 40–44. Zhao, J. W. (2005). On the Interpretation Declarations by the State Parties to United Nations Convention on the Law of the Sea concerning the Issue of Innocent Passage of Warships through the Territorial Sea. China Oceans Law Review, (2), 282–310. Zhu, Q. W. (1983). Warships Shall not Enjoy the Right of Innocent Passage. The Journal of Beijing College of Political Science and Law, (2), 44–50, 67. Zou, K. Y. (1998). Innocent Passage for Warships: The Chinese Doctrine and Practice. Ocean Development and International Law, 29, 195–223. Zou, K. Y. (2016). Implementation of the United Nations Law of the Sea Convention in China. In S. Lee & W. Gullett (Eds.), Asia-Pacific and the Implementation of the Law of the Sea: Regional Legislative and Policy Approaches to the Law of the Sea Convention (pp. 14–33). Leiden: Brill Nijhoff.

Chapter 6

Maritime Counter-Proliferation of Weapons of Mass Destruction and the Freedom of Navigation: A Japanese Lawyer’s Perspective Hiroyuki Banzai

6.1 Introduction On 9/11, a group of terrorists demonstrated to the world that terrorists are capable of attacking the nucleus of a state and causing thousands of deaths simultaneously, in many places. However, if weapons of mass destruction (WMD) are used by terrorists in a 9/11-style attack, the devastation would be much larger. Subsequently, the proliferation of WMD and its related material, mainly because of concerns from the United States after 9/11, came to be considered as one of the most severe and emergent threats to the contemporary international community.1 The risk of the proliferation of WMD may have arisen from the spread of dualuse goods, which may have contributed to the development of WMD. This means that states or non-state actors can develop the ability to develop WMD through a variety of international trade routes. Additionally, the proliferation risk has increased, particularly through maritime transport, which is capable of transporting a large number of goods and materials. The oceans, as international waters, are open to all states, and the freedom of the sea has long constituted the grounds for the growth of the world economy. However, after 9/11 this same freedom of the sea increased the risk of the proliferation of WMD.2 For example, the activities of criminals engaged in piracy are regulated under the current international law of the sea because these activities hamper the freedom of the sea. Nevertheless, if states or non-state actors aim to acquire WMD and related material through maritime transport, their activities 1 S. Reich and P. Dombrowski, The End of Grand Strategy: US Maritime Operations in the 21th Century (2017), pp. 108–109. 2 M. A. Becker, “The Shifting Public Order of the Oceans: Freedom of Navigation and the Interdiction of Ships at Sea,” Harvard International Law Journal, Vol. 46 (2005), pp. 136–147.

H. Banzai (B) Waseda University, Tokyo, Japan e-mail: [email protected] © Kobe University 2021 D. Tamada and K. Zou (eds.), Implementation of the United Nations Convention on the Law of the Sea, Kobe University Monograph Series in Social Science Research, https://doi.org/10.1007/978-981-33-6954-2_6

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per se do not hamper the freedom of the sea that others enjoy. Their activities are targeted if they abuse these freedoms and become a threat to international peace and security, but they cannot be punished because they are not hostis humani generis in the context of the freedom of the sea.3 Among the forms of uses of the sea, ship navigation is very important. Subsequently, maritime counter-proliferation and the freedom of navigation must contain a common interest of the non-proliferation of WMD. Both must coexist, and one way to do this is through the ‘criminalisation’ of activities for the proliferation of WMD and its related material through ocean activities. Non-proliferation efforts now exist in various forms, such as the Proliferation Security Initiative (PSI), the revised Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA), bilateral agreements between the United States and flag of convenience states, and UN Security Council resolutions. In this chapter, these efforts will be examined as part of the criminalisation processes for WMD proliferation activities.4

6.2 Criminal Jurisdiction in the Law of the Sea The main concerns about WMD proliferation have now shifted from the horizontal spread of WMD among states to the links between WMD and terrorism. To prevent terrorists from acquiring the capacity or materials to develop WMD, an effective trade control system must be established. However, private trade activities are legally protected by the concept of the liberalisation of trade. To regulate private trade, specific export or import activities for dual-use commodities by private individuals are to be criminalised through multilateral treaties, such as conventions against terrorism. However, as terrorist groups are not legally defined in current international law, irrespective of the non-negligible level of threat to national security, the criminalisation of their activities is implemented through domestic legal orders. As domestic laws and regulations on terrorism among states are not based on uniform criteria for crimes and punishments, they have to be unified by multilateral treaties if states need to cooperate legally. A convention against terrorism constructs a framework of international cooperation to punish criminal terrorist activities by overlapping the jurisdiction of states and imposing the obligation of punishment or extradition from the country where a suspect is located. This creates a system where criminals will inevitably be punished by every contracting party of the convention through the principle of ‘aut dedere aut judicare’. Contrary to these overlapping forms of state jurisdictions in conventions against terrorism, the distribution of jurisdiction in the law of the sea differs if the focus is one sole state, the flag state.5

3 N.

Klein, Maritime Security and the Law of the Sea (2011), pp. 147–151. Guilfoyle, Shipping Interdiction and the Law of the Sea (2009), pp. 232–233. 5 S. Yamamoto, International Criminal Law (Kokusai Keiji Ho) (1991), pp. 28–31 (in Japanese). 4 D.

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As the main actors in the ocean are ships and vessels, the criminal jurisdiction on private activities at sea will be examined below, from the perspective of the jurisdiction of ships in territorial seas or on the high seas.

6.2.1 Innocent Passage in Territorial Seas and Criminal Jurisdiction According to the United Nations Convention on the Law of the Sea (UNCLOS), ships of all states enjoy the right of innocent passage through territorial seas (Art. 17). Passage, in this context, is the navigation for the purpose of travelling the territorial seas without entering internal waters, or calling at a roadstead or port facility outside internal waters, or proceeding to or from internal waters or a call at such a roadstead or port facility (Art. 18, para. 1). Additionally, the navigation should be continuous and expeditious (para. 2). The passage is innocent as long as it is not prejudicial to the peace, good order, or security of the coastal state (Art. 19, para. 1), and it shall not hamper the innocent passage of foreign ships (Art. 24, para. 1). The UNCLOS enumerates the activities considered as not innocent passage as follows (Art. 19, para. 2)6 : Type 1: Activities prejudicial to the peace and security of the coastal state (a) any threat or use of force, (b) any exercise or practice with weapons of any kind, (c) any act aimed at collecting information to the prejudice of the coastal state, and (d) any act of propaganda aimed at affecting the defense or security of the coastal state, (e) the launching, landing or taking on board of any aircraft, and (f) the launching, landing or taking on board of any military device; Type 2: Activities prejudicial to good order of the coastal state (g) violations of the customs, fiscal, immigration or sanitary laws and regulations, (h) any act of willful and serious pollution, (i) any fishing activities, (j) the carrying out of research or survey activities and (k) any act aimed at interfering with any systems of communication, etc.; Type 3: Other (l) any other activity not having a direct bearing on passage.

The coastal states have certain rights of protection to prevent passage that is not innocent in its territorial sea (Art. 25, para. 1). Furthermore, without discrimination in form or among foreign ships, it may temporarily suspend the innocent passage of foreign ships in specified areas of its territorial sea, if this suspension is essential for the protection of its security (para. 3). Some laws and regulations relating to the innocent passage under Article 21 of the UNCLOS have been adopted in Japan. However, as there are no comprehensive laws and regulations on non-innocent passage, it has

6 Japan Maritime Promotion Center and Study Group of International Maritime Matters (eds.), Law

of the Sea and the Passage of Ships (Kaiyoho to Senpaku no Tsuko) (2002), pp. 29–30 (in Japanese).

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been challenging to manage matters of the rights of protection accurately to prevent passage that is not innocent in Japan’s territorial sea.7 The criminal jurisdiction of a coastal state may only be exercised on board a foreign ship passing through its territorial sea to make arrests or conduct investigations in connection with any crime committed on board the ship during its innocent passage in the following cases (Art. 27, para. 1): (a) if the consequence of the crime extends to the coastal state, (b) if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea, (c) if the assistance of the local authorities has been requested by the master of the ship or by diplomatic agent or consular officer of the flag state, (d) if such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substance. The local authorities have due regard in the interests of navigation to consider whether or in what manner an arrest should be made (para. 4).8 Even if the sovereignty of a coastal state extends to the territorial sea as a part of its territory, foreign ships under the jurisdiction of a flag state can enjoy a wide range of interests of navigation ‘to accomplish freedom of trade’.9 In other words, the coastal state can be allowed to exercise criminal jurisdiction on foreign ships only in limited cases explicitly permitted by UNCLOS that have prior jurisdiction in the flag state. In a series of provisions in the UNCLOS on the territorial sea, there is no specific stipulation on terrorism and the transport of WMD. However, the coastal state may take necessary steps to prevent the passage of a foreign ship when it would lose the nature of innocence because the proliferation of WMD could be considered to prevent its peace and security. Whether this interpretation of the UNCLOS is acceptable is examined below.

6.2.2 Freedom of Navigation on the High Seas and Criminal Jurisdiction Among the uses of the high seas, navigation is of great importance because the guarantee of maritime traffic is essential for achieving the common interests of the international community. This is the background of the principle that the interdiction of foreign ships on the high seas is prohibited. However, if there is no authority on the high seas to exercise power on ships, the high seas would become disorderly. To prevent this situation, a state, which flag ships are technically representing during 7 S. Sakamoto, Japan’s Maritime Policy and the Law of the Sea (Nihon no Kaiyo Seisaku to Kaiyoho) (2018), pp. 32–33 (in Japanese). 8 Japan Maritime Promotion Center and Study Group of International Maritime Matters, supra note 6, pp. 37–38. 9 Y. Tanaka, The International Law of the Sea (2012), p. 85.

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their passage on the high seas, has a right and an obligation to regulate them for maritime safety (Arts. 90 and 94). To guarantee the freedom of navigation as a significant component of the order of the high seas, the flag state has the sole power to exercise jurisdiction to ships on the high seas, and this has been considered the most appropriate system. This is because it is reasonable that laws and regulations of a particular state should be applied to events for ships sailing on various seas. This idea is called as the principle of the flag state and ships sail under the flag of only one state and are subject to its exclusive jurisdiction on the high seas (Art. 92, para. 1).10 Accordingly, the principle of flag state is based on the freedom of the high seas, especially on the freedom of navigation in the contemporary context, which is different from the idea in the past that regarded ships as a ‘floating territory’.11 Subsequently, if a government ship exercises its jurisdiction over a foreign ship without authorisation of its flag state, this is a violation against the freedom of the high seas. Problems arise because of the size of the high seas, and large sections have no territorial jurisdiction of any state. This then means that the control of the flag state is insufficient for regulating ships engaged in unlawful acts of piracy, the slave trade, and unauthorised broadcasting. To fill this gap, warships are exceptionally justified in boarding a foreign ship as a right of visit, if there is reasonable ground for suspecting unlawful acts (Art. 110, para. 1)12 : (a) (b) (c) (d) (e)

the ship is engaged in piracy, the ship is engaged in the slave trade, the ship is engaged in unauthorized broadcasting, the ship is without nationality, the ship is, in reality, of the same nationality as the warship.

A warship can also proceed to verify the ship’s right to fly its flag. If suspicion remains after the ship’s documents have been verified, it may proceed to a further examination on board the ship (para. 2). Additionally, in the case that the suspicion proves to be unfounded, and provided that the ship boarded has not committed any act to justify the acts of the warship, the ship will be compensated for any loss or damage that may have been sustained (para. 3). Thus, the right of visit can be formulated as a maritime police activity to determine unlawful acts of ships on the high seas by verifying if the flag ship is flying with its correct nationality.13 The interests of the navigation of ships on the high seas are strictly protected to the extent that a foreign warship cannot enjoy the right of visit to foreign ships, and, even if allowed, it can exercise its control only over the limited matters mentioned 10 Ibid.,

pp. 152–153. Tsuruta, “Revised SUA Convention and its Implementation in Japan—With Reference to ‘Ship Inspection Procedure’ and ‘Transport of WMD and its Material’ (Kaisei SUA Joyaku To Sono Nihon Niokeru Jisshi—‘Senpaku Kensa Tetsuzuki’ To ‘Tairyo Hakai Heiki Tou No Yuso’ Ni Chakumokushite’)”, T. Kuribayashi and T. Sugihara (eds.), The Law of the Sea and Japan (Nihon Niokeru Kaiyoho No Shuyo Kadai), p. 134 (in Japanese). 12 Japan Maritime Promotion Center and Study Group of International Maritime Matters, supra note 6, pp. 90–91. 13 Tanaka, supra note 9, pp. 159–160. 11 J.

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above. Although a warship can attempt to board a ship that is suspected of being engaged in the transport of WMD and its related material, the right of visit of the warship cannot be justified because the proliferation of WMD is not included in the elements of Article 110, paragraph 1, unless the ship has the same nationality as the warship. In addition, Article 110, paragraph 3, is noteworthy. This section includes provisions for the compensation of certain losses caused by interruptions to fishing activities, the delay of navigation of a commercial vessel according to the conditions of a transport contract, and changes in the price of oil that a tanker is carrying. This means that the ‘interests’ of navigation are not always the same as the ‘right’ of navigation as the loss of interests may be beyond the scope of the protection of the right of navigation. These losses are related to the actual interests based on the real activities of ships. Therefore, legally protected interests of navigation are interpreted as a specific and definite concept of which the normative contents have been developed through the long-term practices of states.14 As examined above, a state other than flag state cannot interdict the activities of ships engaged in the transport of WMD and its related material under the general international law of the sea, considering the considerable protection of passage and navigation of ships both in territorial seas and on the high seas. After 9/11, however, the necessity to create a specific framework for the prevention of proliferation activities of terrorists became more apparent, and the Proliferation Security Initiative (PSI) is a pilot plan to achieve this purpose.

6.3 PSI as a Pilot Plan for the Criminalisation of the Proliferation of WMD 6.3.1 Basic Structure of PSI The M/V So San Incident in 2002 was the direct impetus for the creation of the PSI. When it was approached by a Spanish warship, the M/V So San was not flying a flag and displayed no indication of its state of registry or home port. However, it had a painted North Korean flag on its funnel and had Korean characters for So San. Suspicions of its nationality, the Spanish warship approached the ship and concluded that the failure to fly a flag constituted reasonable grounds for suspecting that the ship was without a nationality (Article 110, para. 1 (d)). Subsequently, Spanish authorities chose to exercise the right of visit of a warship to board a ship on the high seas. The boarding team discovered a cache of 15 Scud surface-to-surface missiles under sacks of cement, while the So San’s cargo list only included a cement shipment. Nevertheless, it was concluded that no provision in UNCLOS and other 14 A. Kanehara, “Interests of Navigation and Enforcement Action (Koko Rieki to Shikko Sochi)”, in Study on the Cases of International Disputes on Maritime Safety (Kaijo Hoan Kokusai Hunso Jirei No Kenkyu), Vol. 2, (2001), p. 4 (in Japanese).

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international agreements explicitly prohibited the sale or shipment of Scud missiles or WMD-related materials. Accordingly, there was no authority to seize these items, and the So San was released with its cargo and allowed to continue to sail.15 As the United States recognised the gap of international law to prohibit the transfer of weapons and missiles, it launched a cooperation initiative with several other states to interdict the transference and export of WMD and its related materials from or to the proliferation concern entity. At first, the PSI began with ten members, including Japan, and thereafter, it increased to 17 founding members. These states played a central role in the PSI as the ‘Core Group’ for a specific term (which was abolished in 2005). Now, over 100 countries have expressed the support of the principles and purpose of the PSI and cooperatively joined in its activities.16 The strategy of the PSI is expressed in the Statement of Interdiction Principles for the Proliferation Security Initiative. In Paragraph 1 of the Statement of Interdiction Principles, the purpose of the PSI is to ‘undertake effective measures, either alone or in concert with other states, for interdicting the transfer or transport of WMD, their delivery systems, and related materials to and from states and non-state actors of proliferation concern’.17 The Statement has no binding effect as a legal instrument, and so the PSI relies on voluntary policy measures among the coalition members initiated by the United States. International security policies for military and weapon systems have been discussed as concepts of disarmament, arms control, and non-proliferation. Multilateral Treaties such as the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) and the Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction (CWC) were concluded within the framework of those three concepts. In this way, the PSI is located in the new strategy of ‘counter-proliferation’ beyond the traditional scope of international security policy. The term ‘counterproliferation’ is symbolised by eight Ds: Dissuasion, disarmament, diplomacy, denial, defusing, deterrence, defence, and destruction.18 Counter-proliferation is a new concept because it includes forcible measures to reduce the effect of the proliferation of WMD, even in cases where preventive measures of non-proliferation fail. Counter-proliferation includes multi-level of measures from disarmament or diplomatic negotiations to the use of force as a final means, such as the agreement between the United States and North Korea in 1994 and armed attack against Iraq 15 Becker,

supra note 2, pp. 152–153.

16 See HP of Ministry of Foreign Affairs of Japan, at https://www.mofa.go.jp/mofaj/dns/n_s_ne/pag

e24_000720.html (as of 31 October, 2019), and Ministry of Defense of Japan, Defense of Japan 2019, p. 395, at https://www.mod.go.jp/e/publ/w_paper/pdf/2019/DOJ2019_Full.pdf (as of 31 October, 2019). 17 Proliferation Security Initiative: Statement of Interdiction Principles, at https://www.psi-online. info/psi-info-en/botschaft/-/2077920 (as of 31 October, 2019). 18 H. Banzai, “The Proliferation Security Initiative and International Law of the Sea: A Japanese Lawyer’s Perspective,” in Journal of East Asia and International Law, Vol. 3, No. 1 (2010), pp. 10– 11.

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in 2003. This demonstrates a wide acceptance of counter-proliferation in the United States, whether the administration is composed of the Democrats or the Republicans. The first four elements of dissuasion, disarmament, diplomacy, and denial are measures that extend the traditional idea of non-proliferation. Among them, the PSI is considered as a measure of denial. However, we have to pay attention to the fact that the range of counter-proliferation may be from legal measures of non-proliferation to the extraterritorial exercise of enforcement jurisdiction with no justification of international law or to the use of force without the authorisation of the UN Security Council; the PSI is no exception. The initial objectives of the PSI were to (i) interdict traders and smugglers of WMD materials, (ii) interdict the passage of suspicious ships in the territorial seas and airs, and (iii) facilitate visits to suspicious ships on the high seas. For the last objective, many harsh objections were posed from the perspective of the principle of the flag state, and so the right of visit on the high seas, which was the real purpose of the United States, cannot be exercised without consent from the flag state.19 Consequently, this has brought up questions about the effectiveness of the PSI because it would be challenging to regulate the proliferation activities of ships only in the territorial seas of the participant States, irrespective of a large number of ships in the vast expansion of the ocean.20

6.3.2 Innocent Passage and the PSI The PSI can be implemented in the territorial seas of the participants, but its validity is limited between them, and the measures in their territorial seas will have some problems with the innocent passage of the ships of non-participant states.21 In Article 17 of the UNCLOS, it states that ‘ships of all states……enjoy the right of innocent passage through the territorial sea’. Additionally, the coastal state shall not hamper the innocent passage of foreign ships through the territorial sea (Art. 24). Therefore, participant States of the PSI cannot take measures to board the ship of a state of proliferation concern, for example, for the reason of the transport of WMD and its related material, unless the passage of the ship can be considered non-innocent. The concept of innocence is defined with respect to the non-prejudicial nature of the peace, good order, or security of the coastal state and 12 acts are enumerated as the forms of passage with prejudicial nature in Article 19 of the UNCLOS. The purpose of the enumeration of the forms of the passage of non-innocence is to restrict the discretionary power of coastal states.22 In other words, the UNCLOS takes a position 19 Ibid.,

pp. 13–14. Asada, “Export Control Regime on Missiles (Misairu Kanren No Yushutsu Kanri Regime),” M. Asada (ed.), Prevention of Proliferation of Weapons and Export Control: Regime and Practice (Heiki No Kakusan Boshi To Yushutsu Kanri:Seido To Jissen) (2004), pp. 96–100 (in Japanese). 21 Klein, supra note 3, pp. 202–203. 22 H. Takabayashi, Study on the Regime of Territorial Sea – History of the Law of the Sea (Ryokai Seido No Kenkyu – Kaiyoho No Rekishi) (1987), p. 344 (in Japanese). 20 M.

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that the innocence of the passage is determined in accordance with the externally perceivable ‘manner’ of the passage of the ship. On this point, Professor Guilfoyle states: the assumption is that it is the external acts of a vessel engaged in innocent passage, not its internal economy, which may prejudice a coastal state’s security. It is hard to see that a latent threat in the vessel’s hold, destined elsewhere, has any ‘external’ manifestation capable of affecting the character of passage.23

According to the position of the UNCLOS, boarding and other measures in the territorial seas are not permissible because of suspicions about the transport of WMD and its related material, which is not included in the 12 acts of Article 19, and because this has no ‘apparently direct nexus between the transit and “prejudice” of the coastal state’ from an external manner of passage.24 In addition, the hampering of innocent passage against a ship of a particular nationality of a proliferation concern might be contrary to Article 24, paragraph 1 (b) that prohibits discriminating in form or against ships of any state or against ships carrying cargoes to, from, or on behalf of any state. According to Professor Sakamoto, the criteria of ‘innocence’ and the criteria of ‘maintenance of international peace and security’, which constitutes the grounds of activities of the PSI are different.25 The risk of the threat to international peace and security is not legitimate grounds for hampering the legal interest of the freedom of navigation of ships, represented in the form of innocent passage, and this opinion is generally accepted in Japan.26

6.3.3 Freedom of Navigation and the PSI The original forms of the right of visit on the high seas are measures in the time of war, for example, the verification of nationality of a hostile state previous to the arrest of the ship by the belligerent state and investigation of prohibited cargoes by the ship of a neutral state.27 However, it is not a right for the suppression of crimes. Due to such a background, in the time of peace, a warship cannot board a foreign ship to exercise the right of visit only in so far as there is reasonable ground for suspecting a specific crime. Furthermore, the boarding must be conducted in a specific way that is permitted under international law.28 For the current right of visit in the time of peace that the PSI is supposed to be implemented, it is justified only if there is reasonable ground for suspecting (a) piracy, (b) slave trading, (c) unauthorised broadcasting, 23 Guilfoyle,

supra note 4, p. 242. p. 241. 25 S. Sakamoto, ‘PSI (Proliferation Security Initiative) and International Law (PSI (Kakusan Boshi Koso) To Kokusaiho)’ in Jurist, Vol. 1279 (2004), p. 55 (in Japanese). 26 See also, Tanaka, supra note 9, p. 366. 27 J. Shinobu, Theory of Maritime International Law (Kaijo Kokusaiho Ron) (1957), p. 249 (in Japanese). 28 S. Yamamoto, Law of the Sea (Kaiyoho) (1995), p. 227 (in Japanese). 24 Ibid.,

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(d) a ship without nationality, and (e) abuse of the flag. These five elements are extended from the three elements of (a), (b), and (e) from the Convention on the High Seas of 1958. Irrespective of this expansion of the enumeration of unlawful acts, the suspicion of transporting WMD and its related materials was not included in the list of the targets of the right of visit on the high seas in the UNCLOS.

6.4 Criminalisation of the Proliferation of WMD 6.4.1 UNSCR1540 The purpose of Security Council Resolution 154029 is to introduce additional effective measures to the framework of the existing treaties to prevent the proliferation of WMD, affirming in its preamble that ‘proliferation of nuclear, chemical and biological weapons, as well as their means of delivery, constitutes a threat to international peace and security’. Paragraphs 1–3 of Resolution 1540 impose on the member States the obligations to adopt and enforce laws and regulations on export control. Among them, specific measures are provided in Paragraph 3 (c) and (d). Paragraph 3 (c) provides the obligation to develop and maintain appropriate effective border controls and law enforcement efforts to detect, deter, prevent, and combat the illicit trafficking and brokering of WMD, its means of delivery, and its related material. Additionally, paragraph 3 (d) has a wide range of obligations to: [e]stablish, develop, review and maintain appropriate, effective national export and transshipment controls over such items, including appropriate laws and regulations to control export, transit, trans-shipment and re-export and controls on providing funds and services related to such export and trans-shipment such as financing, and transporting that would contribute to proliferation, as well as establishing end-user controls; and establishing and enforcing appropriate criminal or civil penalties for violations of such export control laws and regulations.

These obligations go beyond the scope of existing frameworks for export control, such as the Nuclear Suppliers Group (NSG), which has been implemented by its limited members in the form of cooperation based on their domestic laws.30 However, the new system based on Resolution 1540 shall be interpreted as ‘trade control’, of which the scope extends to the whole process of trade. Many states were not familiar with the measures of trade control, but their laws and regulations have gradually been developed and strengthened through cooperation with the 1540 Committee established under Resolution 1540. Consequently, this system can be evaluated as

29 Resolution

1540 (2004), S/RES/1540 (2004), at http://unscr.com/en/resolutions/doc/1540 (as of 31 October, 2019). 30 Banzai, supra note 18, p. 18.

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the legal basis to constitute the universal trade control regime, including the obligation of ‘enforcement’ under the Security Council Resolution.31 While Resolution 1540 does not provide severe penalties in the same way as conventions against terrorism, it imposes obligations on member States to prevent and inhibit the transport or transfer of WMD and its related material by non-state actors, and demands to establish and enforce civil or criminal rules and penalties over trade control issues. Therefore, this means that it has failed to criminalise the proliferation of WMD.32 Additionally, the right of visit under Resolution 1540 is confined to cooperative action within the rules of the general international law of the sea, and as provided in paragraph 10, it ‘calls upon all states, in accordance with their national legal authorities and legislation and consistent with international law, to take cooperative action to prevent illicit trafficking in nuclear, chemical or biological weapons, their means of delivery, and related materials’. Resolution 1540, therefore, is not the basis of the right of visit on the high seas with general applicability, because it does not overcome the principle of the flag state.33 In Resolution 1540, the proliferation of WMD is considered as part of Chapter VII by determining it as a threat to international peace and security, but as a result, the criminalisation of the proliferation of WMD and the right of visit on the high seas cannot be established in its framework. This is irrespective of the intentions of the United States and its coalition members of the PSI to overcome general international law of the sea.34 Additionally, the institution to implement the PSI came to rely on bilateral or multilateral treaties to fill the gaps in the law of the sea. This demonstrates that the freedom of the sea and the principle of the flag state, which have been developed through the long-term accumulation of state practice, are firmly established in the international community.

6.4.2 Revised SUA Convention When the International Maritime Organization (IMO) adopted a resolution to review the steps for the security of passengers and crew and the prevention of terrorist activities against the safe navigation of ships, the United States aimed to effectively implement the PSI through the revision of the SUA Convention on the forum of the IMO. The motives to revise the Convention arose from the failure to criminalise the proliferation of WMD in Resolution 1540 as mentioned above, and the incident of a 31 D. Guilfoyle, “Counter Proliferation Activities and Freedom of Navigation,” in M. H. Nordquist, J. N. Moore, R. C. Beckman and R. Long (eds.), Freedom of Navigation and Globalization (2015), p. 79. 32 Banzai, supra note 18, p. 19. 33 S. Aoki, “Disarmament and Non-proliferation against Non-State Actors—Resilience of International Law (Hikkoka Shutai Nitaisuru Gunshuku Fukakusan,” Yearbook of World Law (Sekaiho Nenpo), No. 26, p. 146 (in Japanese). 34 Ibid., pp. 139, 145–146.

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suicide attack against a United States Navy destroyer, the USS Cole, in 2000 while it was harboured in the Yemeni port of Aden.35 The SUA Convention of 1988 only covers a crime that seizes and exercises control over a ship by force (Art. 3 (a)), and it does not include any crime with the purpose of terrorism. In the Revised SUA Convention of 200536 , crimes using ships or starting from ships are covered as new offences that endanger the safe navigation of ships in Article 3bis, paragraph 1 (a). This succeeds in inserting the purpose of terrorism by providing that ‘the purpose of the act, by its nature or context, is to intimidate a population, or to compel a government or an international organisation to do or to abstain from doing any act’. This provision provides for the criminalisation of terrorism in the SUA convention, and is a significant development, as it introduces the regulation of terrorism explicitly in the field of the law of the sea. In addition, the offence of transporting on board a ship is stipulated in Article 3bis, paragraph 1 (b), which is especially relevant for the prevention of the proliferation of WMD to or from states or non-state actors of proliferation concern. It covers not only WMD but also its related material and dual-use commodities. Additionally, maritime transport is criminalised as an offence under the Revised SUA Convention. However, most of the transport offences have no terrorism characteristics, except the transport of ‘any explosive or radioactive material’, which particularly includes the formulation of terrorism ‘for the purpose of intimidating a population, or compelling a government or an international organisation to do or to abstain from doing any act’ in Article 3bis, paragraph 1 (b) (i).37 In some conventions, the offence of transport for slave trading or narcotic drug trafficking are also included, as they prohibit the possession of slaves or drugs, and so criminalise their transport. However, WMD related material and dual-use commodities can be legally owned by both exporting and importing countries. Under these circumstances, it is doubtful if only the transport of these items at sea shall be reasonably inhibited.38 Although there is a problem in the Revised SUA Convention, a transport offence is linked to Resolution 1540, as referred to in the preamble. Resolution 1540 provides in paragraph 2 that ‘all states, in accordance with their national procedures, shall adopt and enforce appropriate, effective laws which prohibit any non-state actor to … transport … nuclear, chemical or biological weapons and their means of delivery, in particular for terrorist purposes’. In this way, at least the transport of WMD and its related material by non-state actor shall be prohibited among the member States of 35 Banzai,

supra note 18, p. 23. of 2005 to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, at https://www.refworld.org/docid/49f58c8a2.html (as of 31 October, 2019). 37 Klein, supra note 3, pp. 172–173. 38 Y. Tanaka, “The Role and Function of the Sea in International Regulation on Terrorism – Change of Counter-Terrorism through 9/11and Maritime Regulation (Terrorism No Kokusai Kisei Niokeru Kaiyo No Yakuwari To Kino – 9.11Jiken Niyoru Taiteroseisaku No Henka To Kaijokisei),” in M. Akiyama and T. Kuribayashi (eds.), International Order of the Sea and Ocean Policy (Umi No Kokusai Chitsujo To Kaiyo Seisaku) (2006), p. 134 (in Japanese). 36 Protocol

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the UN under Resolution 1540. The offence of the transport of WMD in the Revised SUA Convention can be considered to have a legal grounding in Resolution 1540.39 Article 8 is a provision concerning the right of visit on the high seas that mitigates the principle of the flag state to a certain degree. In Article 8bis, paragraph 1, the contracting States are obliged to ‘cooperate to the fullest extent possible to prevent and suppress unlawful acts covered by this Convention, in conformity with international law, and shall respond to requests pursuant to this article as expeditiously as possible’. It narrows the discretionary range of the flag state to deny the demand to board a ship from a requesting state. Additionally, it may be interpreted that the implementation of the PSI may be within the scope of Article 8bis, as the development of a procedure on joint operations for enforcement measures is encouraged in paragraph 12.40 The original purpose of the SUA Convention was to maintain the maritime order through the control of activities impeding the safe navigation of ships. There might be no significant barrier to include offences of the use of a ship for the purpose of terrorism, as it hampers the safe navigation of a ship similar to the offence of seizing the ship. However, the offence of transport is not an act to hamper the navigation as such, but a threat to international peace and security. It must be deliberately determined if the role of the maintenance of international peace and security can be successfully added to the SUA Convention, which has contributed to maintaining the ocean order, although such a new role is expected to heighten the effectiveness of the measures of the PSI.41

6.5 Domestic Implementation of Maritime Counter-Proliferation: The Case of Japan 6.5.1 Revised SUA Convention To examine the domestic implementation of the offence of the transport of WMD and its related material, the jurisdiction to prescribe laws and regulations to criminalise this type of transport is distinguishable from the jurisdiction of enforcement to punish those who commit these crimes. Internal transport of WMD in Japan is regulated by the implementation of Acts for conventions against BC weapons. Both laws do not include explicit provisions on the prohibition of their transport but prohibit retaining, transferring, and receiving those weapons. Consequently, there is room for prohibiting the transport of WMD through 39 M. Hayashi, The Emerging Process and Issues of Contemporary Law of the Sea (Gendai Kaiyoho No Seisei To Kadai) (2009), p. 353 (in Japanese). 40 F. Spadi, “Bolstering the Proliferation Security Initiative at Sea: A Comparative Analysis of Ship-boarding as a Bilateral and Multilateral Implementing Mechanism,” in Nordic Journal of International Law, Vol. 75 (2006), p. 272. 41 Banzai, supra note 18, p. 27.

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a broad interpretation of these words. Additionally, for the nuclear weapons, Article 2 of Atomic Energy Basic Act42 provides no explicit rule to inhibit possession of nuclear weapons, but it recognises the study, development, and use of atomic energy only for peaceful purposes. The purpose of transferring and receiving nuclear fuel material is also limited in Article 61 of the Act on the Regulation of Nuclear Source Material, Nuclear Fuel Material and Reactors.43 External aspects of transport are regulated by the Foreign Exchange and Foreign Trade Act.44 According to Article 48, ‘[a]ny person who intends to carry out the export of specific kinds of goods to specified regions, which are specified by Cabinet Order as recognised to undermine the maintenance of international peace and security, shall obtain, pursuant to the provisions of Cabinet Order, permission from the Minister of Economy, Trade and Industry’. This type of export is strictly controlled through the catch-all regulation. Additionally, in the case of imports, Article 52 similarly provides that: [f]or the purpose of achieving the sound development of foreign trade and the national economy, sincerely fulfilling obligations under the treaties and other international agreements Japan has signed, making Japan’s contribution to international efforts for achieving international peace, or implementing a cabinet decision set forth in Article 10, paragraph (1), any person who intends to import goods may be obliged to obtain import approval pursuant to the provisions of Cabinet Order.

Some regulations can be interpreted to specify that the transport of WMD is prohibited; for example, in the Act on the Regulation of Nuclear Source Material, Nuclear Fuel Material and Reactors, Ship Safety Act, Civil Aeronautics Act,45 and Road Traffic Act.46 For example, dangerous substances other than those in common use not allowed to be transported without the permission of the master of the ship and unless public notice to transport them is satisfied within the criteria of the Ship Safety Act.47 For enforcement in territorial seas, under the UNCLOS, it is difficult to exercise the right of protection with prejudice to the peace, good order, and security of the coastal state as not innocent passage in the case of the transport of WMD and its related material by a foreign ship. Due to this current situation, a new regulation was established in Article 3bis, paragraph 1 (b) of the Revised SUA Convention as lex 42 Atomic Energy Basic Act, at http://www.japaneselawtranslation.go.jp/law/detail/?id=2233&vm= 04&re=02 (as of 31 October, 2019). 43 Act on the Regulation of Nuclear Source Material, Nuclear Fuel Material and Reactors, at http:// www.japaneselawtranslation.go.jp/law/detail_main?re=02&vm=02&id=1941 (as of 31 October, 2019). 44 Foreign Exchange and Foreign Trade Act, at http://www.japaneselawtranslation.go.jp/law/detail_ main?vm=&id=21 (as of 31 October 2019). 45 Civil Aeronautics Act, at http://www.japaneselawtranslation.go.jp/law/detail/?id=37&vm=02& re=02 (as of 31 October, 2019). 46 Road Traffic Act, at http://www.japaneselawtranslation.go.jp/law/detail/?id=2962&vm=04& re=02 (as of 31 October 2019). 47 M. Nishida, “Proliferation Security Initiative (Kakusan Nitaisuru Anzen Hosho Koso),” Gaimusho Chosa Geppo, 2007/No. 1, pp. 61–63, at https://www.mofa.go.jp/mofaj/press/pr/pub/geppo/pdfs/ 07_1_2.pdf (as of 31 October, 2019) (in Japanese).

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specialis to enforce the offence of the transport of WMD. As a premise to exercise enforcement jurisdiction to a ship passing through territorial seas with cargoes of WMD and its related material, the coastal state must have a domestic rule to regulate this passage. In Japan, it is hard to enforce a particular regulation and enforcement for ships under the existing rules, because the navigation of ships is not considered as exports or imports in the Foreign Exchange and Foreign Trade Act and customs laws if the passage of the ship is confined to a transit traversing that sea without entering internal waters. Additionally, there is no comprehensive laws and regulations on innocent passage in Japan, so there remains a problem to be solved for how Japan regulates the passage of foreign ships through its territorial seas in accordance with the enumerated elements in the UNCLOS as well as other than those elements. However, Professor Tsuruta indicates that the exercise of enforcement jurisdiction under Article 9, paragraph 1 shall, at last, fall under Article 27, paragraph 1 of UNCLOS (a) if the consequences of the crime extend to the coastal state, (b) if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea, (c) if the assistance of the local authorities has been requested by the master of the ship or by a diplomatic agent or consular officer of the flag state, or (d) if such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances.48 In the Revised SUA Convention, the procedure of ship inspection on the high seas is newly established. It is provided in Article 8bis, paragraph 5 that: law enforcement or other authorised officials of a State Party (“the requesting Party”)…is granted authorisation to board and search the ship, its cargo and persons on board, and to question the persons on board to locate and examine documentation of its nationality and determine if an offence set forth in article 3, 3bis, 3ter or 3quater has been, is being or is about to be committed.

The consent of the flag state is required if another state would exercise jurisdiction over a detained ship, cargo, or other items and persons on board, including seizure, forfeiture, arrest, and prosecution (para. 8). On the condition that domestic laws and regulations, which might be adopted to criminalise the covered offences of the Revised SUA Convention, could be applied to activities on the high seas beyond the territorial scope, the authorised power of police measures can be exercised according to the current Japan Coast Guard Act. Subsequently, judicial measures of arrest or seizure could be taken based on criminal procedure law if Japan can obtain the consent from the flag state when it discovers the WMD and its related material as a result of the investigation of a foreign ship.49

48 Tsuruta, 49 Ibid.,

supra note 11, pp. 146–150. pp. 143–145.

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6.5.2 PSI and Legislation for the Peace and Security of Japan Participating States of the PSI may take inspection activities as the right to visit at sea. This activity in the strict sense is not a ship inspection under the SOLAS and MARPOL treaties, but a cargo inspection to verify if the ship is transporting WMD and its related materials. In Japan, the Law Concerning Measures to Ensure Peace and Security of Japan in Situations that will have an Important Influence on Japan’s Peace and Security acts as an inspection law. It is one of the laws and acts of the Legislation for Peace and Security adopted in 2015. The former Act on Measures to Ensure the Peace and Security of Japan in Perilous Situations in Areas Surrounding Japan was expanded and amended to form the Important Influence Situations Law. Situations that will have significant influence are cases that have an important influence on Japan’s peace and security, such as situations that could lead to a direct armed attack against Japan if left unattended. When a situation that will have an important influence occurs, the scope of the Law has been expanded to permit logistical support, search and rescue operations, and ship inspection operations. This includes foreign troops engaging in activities that contribute to achieving the objectives of the United Nations Charter, in addition to the United States forces engaging in activities that contribute to achieving the objectives of Article 6 of the US-Japan Security Treaty.50 The Maritime Self-Defense Force can board a foreign ship and verify and search cargoes, based on the Important Influence Situations Law. In the era of the Act on Perilous Situations in Areas Surrounding Japan, the nuclear test by North Korea was not treated as a situation that could lead to a direct armed attack against Japan if left unattended, and so the MSDF took no inspection activity against North Korean ships.51

References Asada, M. (2004). Export Control Regime on Missiles (Misairu Kanren No Yushutsu Kanri Regime). M. Asada (ed.), Prevention of Proliferation of Weapons and Export Control: Regime and Practice (Heiki No Kakusan Boshi To Yushutsu Kanri:Seido To Jissen) (2004), pp. 96–100 (in Japanese). Banzai, H. (2010). The proliferation security initiative and international law of the sea: A Japanese lawyer’s perspective. Journal of East Asia and International Law, 3(1), 10–11. Becker, M. A. (2005). The shifting public order of the oceans: Freedom of navigation and the interdiction of ships at Sea. Harvard International Law Journal, 46, 136–147. Guilfoyle, D. (2009). Shipping interdiction and the law of the sea, pp. 232–233. Guilfoyle, D. (2015). Counter proliferation activities and freedom of navigation. In M. H. Nordquist, J. N. Moore, R. C. Beckman & R. Long (eds.), Freedom of Navigation and Globalization, p. 79.

50 Ministry

of Defense of Japan, Defense of Japan 2016, pp. 213–227, at https://www.mod.go.jp/e/ publ/w_paper/pdf/2016/DOJ2016_2-3-2_web.pdf (as of 31 October, 2019). 51 Y. ODA, “Recent Trend on the Measures for Maritime Security (Kaiji Security Taisaku Nikansuru Saikin No Doko),” in Journal of the JIME, Vol. 42, No. 3 (2007), pp. 380–381 (in Japanese).

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Hayashi, M. (2009). The Emerging Process and Issues of Contemporary Law of the Sea (Gendai Kaiyoho No Seisei To Kadai), p. 353 (in Japanese). Kanehara, A. (2001). Interests of Navigation and Enforcement Action (Koko Rieki to Shikko Sochi). In Study on the Cases of International Disputes on Maritime Safety (Kaijo Hoan Kokusai Hunso Jirei No Kenkyu), Vol. 2, p. 4 (2001), p. 4 (in Japanese). Klein, N. (2011). Maritime security and the law of the sea, pp. 147–151. Nishida, M. (2007). Proliferation Security Initiative (Kakusan Nitaisuru Anzen Hosho Koso). Gaimusho Chosa Geppo, 2007/No. 1, pp. 61–63, at https://www.mofa.go.jp/mofaj/press/pr/pub/ geppo/pdfs/07_1_2.pdf. Accessed 31 October 2019 (in Japanese). Oda, Y. (2007). Recent Trend on the Measures for Maritime Security (Kaiji Security Taisaku Nikansuru Saikin No Doko). Journal of the JIME, 42(3), 380–381 (in Japanese). Reich, S., & Dombrowski, P. (2017). The End of Grand Strategy: US Maritime Operations in the 21th Century, pp. 108–109. Sakamoto, S. (2004). PSI (Proliferation Security Initiative) and International Law (PSI (Kakusan Boshi Koso) To Kokusaiho). In Jurist, Vol. 1279 (2004), p. 55 (in Japanese). Sakamoto, S. (2018). Japan’s maritime policy and the law of the sea (Nihon no Kaiyo Seisaku to Kaiyoho), pp. 32–33 (in Japanese). Shinobu, J. (1957). Theory of Maritime International Law (Kaijo Kokusaiho Ron), p. 249 (in Japanese). Spadi, F. (2006). Bolstering the proliferation security initiative at sea: A comparative analysis of ship-boarding as a bilateral and multilateral implementing mechanism. Nordic Journal of International Law, 75, 272. Takabayashi, H. (1987). Study on the Regime of Territorial Sea—History of the Law of the Sea (Ryokai Seido No Kenkyu—Kaiyoho No Rekishi) (1987), p. 344 (in Japanese). Tanaka, Y. (2006). The Role and Function of the Sea in International Regulation on Terrorism— Change of Counter-Terrorism through 9/11 and Maritime Regulation (Terrorism No Kokusai Kisei Niokeru Kaiyo No Yakuwari To Kino—9.11Jiken Niyoru Taiteroseisaku No Henka To Kaijokisei),” in M. Akiyama and T. Kuribayashi (eds.), International Order of the Sea and Ocean Policy (Umi No Kokusai Chitsujo To Kaiyo Seisaku), p. 134 (in Japanese). Tanaka, Y. (2012). The international law of the sea, p. 85. Yamamoto, S. (1991). International criminal law (Kokusai Keiji Ho), pp. 28–31 (in Japanese). Yamamoto, S. (1995). Law of the Sea (Kaiyoho), p. 227 (in Japanese).

Part IV

Mid-Ocean Archipelagos

Chapter 7

The Application of Straight Baselines to Mid-Ocean Archipelagos Belonging to Continental States: A Chinese Lawyer’s Perspective Hua Zhang

7.1 Introduction In the law of the sea, there is a long-lasting controversy over whether straight baselines can be applied in the demarcation of territorial seas of mid-ocean/outlying archipelagos belonging to continental States.1 During the Third UN Conference on the Law the Sea (“UNCLOS III”), the introduction of archipelagic baselines provided a solution for those mid-ocean archipelagos that are constituent of archipelagic States, but for those mid-ocean archipelagos belonging to continental States, the United Nations Convention on the Law of the Sea (“LOSC”) remains silent.2 In practice, whenever continental States apply straight baselines to their dependent mid-ocean archipelagos, the USA puts forward protest.3 China proclaimed straight baselines around the Xisha/Paracel Islands and Diaoyu Islands in 1996 and 2012 respectively, and the possibility of applying straight baselines to other groups of islands in the South China Sea cannot be totally excluded in the foreseeable future.4 1 “Mid-ocean archipelago” and “outlying archipelago” are used interchangeably by international lawyers to refer to those dependent archipelagos belonging to continental/mainland States. For the most comprehensive study on this topic, see Sophia Kopela, Dependent Archipelagos in the Law of the Sea, Martinus Nijhoff Publishers, 2013. 2 Mohamed Munavvar, Ocean States: Archipelagic Regimes in the Law of the Sea, Martinus Nijhoff Publishers, 1995, p. 184. 3 See J. Ashley Roach & Robert W. Smith, Excessive Maritime Claims, 3rd Edition, Martinus Nijhoff Publishers, 2012, pp. 108–115. 4 According to China’s Declaration on Territorial Sea 1958 and Law of Territorial Sea and Contiguous Zone 1992, the straight baselines method shall be employed for measuring the breadth of the territorial sea, and that it is applicable to all China’s territory including the four groups of islands in South China Sea.

H. Zhang (B) Nanjing University, Nanjing, China e-mail: [email protected] © Kobe University 2021 D. Tamada and K. Zou (eds.), Implementation of the United Nations Convention on the Law of the Sea, Kobe University Monograph Series in Social Science Research, https://doi.org/10.1007/978-981-33-6954-2_7

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This chapter first explores the legal basis for applying straight baselines to midocean archipelagos so as to demonstrate the limited role of LOSC in this regard and identify the sui generis nature of dependent archipelagic straight baselines from the perspective of customary international law. By making reference to provisions on straight baselines in LOSC and relevant state practice, it endeavors to identify the criteria for the application of straight baselines to mid-ocean archipelagos. In light of these criteria, it examines China’s existing practice in applying straight baselines to the Xisha/Paracel Islands and Diaoyu Islands, and explores the potential for China’s future application of straight baselines in the South China Sea.

7.2 The Legal Basis for the Application of Straight Baselines to Dependent Mid-Ocean Archipelagos Early in the 1990s, Vaughan Lowe and Robin Churchill acknowledged the embarrassing fact that, according to the definition of “archipelago” and “archipelagic State” provided in LOSC, archipelagic baselines cannot be drawn around mid-ocean archipelagos belonging to mainland States, nor can this method be justified under LOSC, even though it is used in a series of state practice.5 In their view, Article 47 of LOSC constitutes an unnecessary and unreasonable restriction because only an archipelagic State [emphasis in origin] can draw archipelagic baselines around an archipelago.6 By simply referring to some typical mid-ocean archipelagos involving straight baselines, they straightforwardly asserted that “to the extent that such claims have been recognized by other States, they must be regarded as being valid under customary international law”.7 It seems the legal basis for the application of straight baselines to dependent mid-ocean archipelagos should no longer be in doubt. To date, however, some commentators still rely upon Articles 7 & 47 of LOSC and reject any other sources of international law, e.g. customary international law,8 which seems to exaggerate the regulating effect of LOSC in this respect.

7.2.1 Limited Role of LOSC in Regulating Dependent Mid-Ocean Archipelagos Article 7 of the LOSC stipulates that straight baselines apply to the continental States. As an exception to normal baselines, i.e. the low-water line, straight baselines might 5 R.

R. Churchill & A. V. Lowe, The Law of the Sea, 3rd Edition, Manchester University Press, 1999, p. 120. 6 Ibid. 7 Ibid., p. 121. 8 International Law Commission, Baselines under the Law of the Sea: Final Report, 2018, paras. 89–92, available at: http://www.ila-hq.org/images/ILA/DraftReports/DraftReport_Baselines.pdf.

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be employed in localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity. This provision and its predecessor, Article 4 of the Territorial Sea Convention 1958, incorporates the jurisprudence of the International Court of Justice (“ICJ”) in the Anglo-Norwegian Fisheries case,9 which basically reflects the geographical features of the Norwegian coastline. It is generally believed that “a fringe of islands along the coast” amounts to coastal archipelagos.10 Thus Article 7 of LOSC establishes a special regime for coastal archipelagos. Article 47 of the LOSC set up a special regime for mid-ocean archipelagos which constitute an integral part of archipelagic States. As Article 47 prescribes, an archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago. Noteworthy is the fact that, at the initial stage of UNCLOS III, there was no distinction between archipelagos belonging to continental States and those constituting archipelagic States in the relevant proposals submitted by different groups of States.11 However, since continental States possessing mid-ocean archipelagos did not participate in the informal Working Group on Archipelago, and archipelagic States were united and collaborated together throughout UNCLOS III, the legitimate concerns of dependent mid-ocean archipelagos were gradually neglected. It was not until 1976 that the Revised Single Negotiating Text (“RSNT”) deleted the special section on archipelagos forming an integral part of a continental State.12 Thereafter, the discussions on mid-ocean archipelagos were limited to archipelagic States. The regime of archipelagic States prescribed by Part IV of LOSC is essentially a compromise between archipelagic States and maritime powers. Therefore, in light of the negotiating history of UNCLOS III, Article 47 cannot constitute the appropriate legal basis for continental States to apply straight baselines to their dependent mid-ocean archipelagos. In practice, however, many continental States have been applying the straight baselines to their mid-ocean archipelagos since the early 20th century, e.g. Faroe Islands (Denmark), Galapagos Islands (Ecuador), Svalbard Archipelago (Norway), Falkland Islands (UK)/Malvinas Islands (Argentina), Turks and Caicos Islands (UK), Kerguelen Islands (France), Guadeloupe (France), Loyalty Islands (France), Furneaux Group (Australia), Houtman Abrolhos (Australia), Canary Islands (Spain), 9 Anglo-Norwegian

Fisheries Case (UK v. Norway), ICJ Reports 1951, pp. 128–129.

10 Mohamed Munavvar, Ocean States: Archipelagic Regimes in the Law of the Sea, Martinus Nijhoff

Publishers, 1995, p. 183. 11 See Hiran W. Jayewardene, The Regime of Islands in International Law, Martinus Nijhoff Publishers, 1990, pp. 140–141. 12 In Part II of Informal Single Negotiation Text (“ISNT”), under the heading “Archipelagos”, section 1 carries the title “Archipelagic States”, while section 2 is entitled “Oceanic Archipelagos Belonging to Continental States”. Section 2 contained a single article, i.e. Article 131, which provided that: “The provisions of Section 1 are without prejudice to the status of oceanic archipelagos forming an integral part of the territory of a continental State”. See Satya N. Nandan and Shabtai Rosene (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary (Vol. 2), Martinus Nijhoff Publishers, 1993, p. 412.

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Balearic Islands (Spain), Azores Islands (Portugal), Madeira Islands (Portugal), Co Co Islands (Myanmar), Preparis Islands (Myanmar), Lakshadweep Islands (India), Andaman and Nicobar Islands (India), etc.13 In terms of geographical features, these archipelagos can be roughly placed into two categories: (a) archipelagos consisting of one or two dominant islands and a fringe of islands along the coast in its immediate vicinity; (b) archipelagos consisting of islands of similar size, which are located at a far distance from each other. The USA shows tolerance towards those straight baselines as applied to the first category of mid-ocean archipelagos, while it often expresses strong criticism towards the second category,14 or even conducts a series of operational challenges.15 Regardless of political status, the first category of archipelagos is similar to continental States possessing a fringe of islands, which might be justified on the basis of Article 7 by analogy. In contrast, the straight baselines applied to the second category of midocean archipelagos can hardly win justification in light of the quantitative conditions as provided by Article 47. Bearing in mind that those conditions to some extent reflect the geographical characteristics of those archipelagic States participating in the UNCLOS III, especially the Philippines and Indonesia,16 the application of Articles 46 and 47 to dependent mid-ocean archipelagos by analogy would naturally arrive at the conclusion that the relevant state practice violates LOSC.17 The deep concerns of the USA over the straight baselines of mid-ocean archipelagos are still rooted in the freedom or maneuver of navigation.18 The precondition for recourse to analogy depends on the question of whether there is a lacuna in international law. By way of illustration, if the legal rules can be identified through treaty interpretation, or there are customary rules beyond the statutory rules, recourse to the method of analogy becomes unnecessary.19 Accordingly, the legality of applying straight baselines to dependent mid-ocean archipelagos relies 13 See Sophia Kopela, Dependent Archipelagos in the Law of the Sea, Martinus Nijhoff Publishers, 2013, p. 112–140; also J. Ashley Roach, “Offshore Archipelagos Enclosed by Straight Baselines: An Excessive Claim?”, Ocean Development and International Law, Vol. 49, 2018, pp. 197–202. 14 J. Ashley Roach & Robert W. Smith, Excessive Maritime Claims, 3rd Edition, Martinus Nijhoff Publishers, 2012, pp. 108–115. 15 As regards the USA’s operational challenges (FONOPs), see USA Department of Defence, Annual Freedom of Navigation Report 2018, available at: https://policy.defense.gov/OUSDP-Offices/FON/ (last visit on 31 May 2019). 16 See Donald R. Rothwell & Tim Stephens, The International Law of the Sea, Hart Publishing, 2016, pp. 185–191. 17 W. Michael Reisman and Gayl S. Westerman, Straight Baselines in Maritime Boundary Delimitation, St. Martin’s Press, 1992, p. 156. 18 The “Freedom of Navigation (FON) Program” has been conducted frequently around the world by the USA since 1979. Whenever some States have employed straight baselines, the USA has regarded it as excessive maritime claims and carried out a “FON Program” with an aim to express its concern. There are three ways in which USA conduct the “FON Program”, including: diplomatic communications; operational assertions; bilateral and multilateral consultations. 19 Silja Vöneky, “Analogy in International Law”, in Rüdiger Wolfrum (ed.), The Max Planck Encyclopedia of Public International Law (Volume I), Oxford University Press, 2012, p. 377, para. 16.

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upon the answer to the question “whether there are any customary rules of international law with regard to the straight baselines as applied to dependent mid-ocean archipelagos?” Early in the 1990s, a commentator held that, “the issue of mid-ocean archipelagos of continental States is yet to be addressed and the practice of such states…may provide new dimensions for further development of the archipelagic concept in international law”.20 It seems the accumulation of state practice might generate a new rule of international law. However, as another commentator points out recently, “the status of dependent archipelagos is still mired in uncertainty, with divergent views as to whether there is indeed a customary international law principle that allows dependent archipelagos to draw straight baselines or archipelagic baselines around its island”.21 To remedy such a legal uncertainty, the present author endeavors to clarify the legal status of straight baselines as applied to dependent mid-ocean archipelagos from the perspective of customary law.

7.2.2 Customary International Law as an Alternative? The identification of customary international law has been one of the most challenging projects for international lawyers. As the jurisprudence of international judicial bodies, such as the ICJ, illustrates, the identification process can be as flexible as the interpretation process.22 In this sense, the existence of customary international law to a certain extent depends on the approach adopted by the competent courts or tribunals. Be that as it may, the report on the identification of customary international law as drafted by Special Rapporteur Sir Michael Wood23 under the authority of the International Law Commission is of great reference value for international lawyers. It is to be noted that, based on the work of the Draft Committee, the International Law Commission adopted the entire set of draft conclusions on the identification of customary international law on its second reading at its seventieth session in 2018.24 Therefore, there exists a set of well-established rules which makes the identification of customary international law more predictable and feasible. To determine the existence of customary international law, two elements have to be satisfied simultaneously: first, the material element, i.e. general practice, which requires the uniformity, consistency and generality of state practice; second, the 20 Mohamed Munavvar, Ocean States: Archipelagic Regimes in the Law of the Sea , Martinus Nijhoff Publishers, 1995, p. 97. 21 Tara Davenport, “The Archipelagic Regime”, in Donald R. Rothwell et al. (eds.), The Oxford Handbook of the Law of the Sea, Oxford University Press, 2015, p. 156. 22 Stefan Talmon, “Determining Customary International Law: The ICJ’s Methodology between Induction, Deduction and Assertion”, European Journal of International Law, Vol. 26, 2015, pp. 441–443. 23 Michael Wood, The Fifth Report on Identification of Customary International Law, A/CN.4/L.717, 14 March 2018. 24 Text of the Draft Conclusions on Identification of Customary International Law, International Law Commission Annual Report on the Seventieth Session (2018), A/73/10, pp. 119–122.

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psychological element, i.e. opinio juris, which refers to “a general practice accepted as law”, or to put it in another way, the motive for states to abide by the general practice is not out of comity, but of normativity.25 Besides, although the passage of only a short period of time is not necessarily a bar to the formation of a new rule of customary international law, a certain duration is an indispensable requirement.26

7.2.2.1

State Practice

In terms of the material element of customary rule, the practices of Denmark, Ecuador, Norway, UK, France, Australia, Spain, Portugal, Myanmar and India as mentioned above can to a certain extent contribute to the formation of customary international law with regard to the application of straight baselines to mid-ocean archipelagos. As regards uniformity and consistency, the relevant states applied straight baselines to their qualified archipelagos in accordance with the specific geographical features. Admittedly, for those unqualified islands which spread broadly over the ocean in a rather random way, the UK and France did not treat those islands as a unit and apply straight baselines to all the islands. Instead, they applied the straight baselines to individual islands, or merely to certain part of the islands. However, such practices do not affect overall uniformity and consistency. After all, for interconnecting islands, they endeavor to employ the straight baselines through diverse methods. As far as generality is concerned, the number of the relevant States applying straight baselines to mid-ocean archipelagos, on the face of it, seems to be limited, but taking account of the fact that those States are leading maritime States and continental States possessing mid-ocean archipelagos themselves are in the minority on the planet of Earth, their practices represent the mainstream of the international community. It is to be noted that, apart from the USA, other States seldom put forward official and public protest when the States concerned applied straight baselines to dependent mid-ocean archipelagos,27 which conversely established the generality of such practices. Besides, on account of the diversity of the international community, the understanding of uniformity, consistency and generality should not go to an extreme. Otherwise, there would be no opportunity for the formation of customary rules.

25 James

Crawford, Brownlie’s Principles of Public International Law, 8th edition, Oxford University Press, 2012, pp. 22–25. 26 North Sea Continental Shelf (Germany/Denmark; Germany/Netherlands), ICJ Reports 1969, para. 74. 27 Chris Whomersley, “Offshore Archipelagos Enclosed by Straight Baselines: A Reply to J. Ashley Roach”, Ocean Development and International Law, Vol. 49, 2018, p. 205.

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Opinio Juris

In order to determine the existence of opinio juris, it is necessary to take account of such diverse materials as legislations, judicial decisions, treaties, diplomatic letters, policy declarations, legal reports, resolutions of international organizations and even media reports.28 The relevant States proclaimed their straight baselines through domestic law or decree, which not only listed the geographic coordinates, but annexed maps or charts. Some States, e.g. Denmark and Ecuador, even promulgated a series of legislations on specific archipelagos so as to indicate the straight baselines.29 These legislations demonstrate that the States concerned consider the application of straight baselines to mid-ocean archipelagos as a legal right. Additionally, during the negotiating stage of UNCLOS III, most continental States possessing dependent archipelagos, e.g. Norway, India, Ecuador, made proposals that the system of straight baselines should be extended to mid-ocean archipelagos.30 Even after the entry into force of LOSC, these states insist on their practice and position. Besides, whenever the USA has put forward official protest against the use of straight baselines, the reactions of the States concerned also displayed the sense of normativity. For example, in 1986, when USA challenged the legality of the straight baselines applied to Azores and Madeira Islands, Portugal asserted that its straight baselines were based on Article 121 instead of Part IV of LOSC.31 Although Portugal’s reliance upon Article 121 might be lame from the perspective of positive law, this event reflects at least the Portugal’s belief that the application of straight baselines to its mid-ocean archipelagos is not short of legal basis. The recent evidence concerning the existence of opinio juris in the application of straight baselines to mid-ocean archipelagos can be identified through Ecuador’s declaration upon its accession to LOSC. On 24 September 2012, Ecuador acceded to LOSC, and submitted a declaration which particularly justifies straight baselines as applied to the Galapagos Archipelago. Ecuador reiterates the full force and validity of Supreme Decree No. 959-A, published on 28 June 1971 in Official Register No. 265 of 13 July 1971, by means of which it established its straight baselines in accordance with international law. It reaffirms that the said lines in the Galapagos Archipelago are determined by the common geological origin of those islands, their historical unity and the fact that they belong to Ecuador, as well as the need to protect and preserve their unique ecosystems…32 28 Text of the Draft Conclusions on Identification of Customary International Law, International Law Commission Annual Report on the Seventieth Session (2018), A/73/10, p. 120. 29 Sophia Kopela, Dependent Archipelagos in the Law of the Sea, Martinus Nijhoff Publishers, 2013, pp. 125–126. 30 See, e.g. Working Paper of Canada, Chile, Iceland, India, Indonesia, Mauritius, Mexico, New Zealand and Norway, 26 July 1974, UN Doc. A/CONF.62/L.4, Art. 9. 31 J. Ashley Roach and Robert W. Smith, Excessive Maritime Claims, 3rd edition, Martinus Nijhoff Publishers, 2012, p. 108. 32 As regards the information on the status of LOSC and the Declaration made by Ecuador upon accession in 2012, available at: https://treaties.un.org/Pages/ViewDetailsIII.aspx?src=TREATY& mtdsg_no=XXI-6&chapter=21&Temp=mtdsg3&clang=_en#EndDec.

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Although Ecuador’s declaration generated some concern from Spain, UK, Greece, and the EU to different extents,33 it at least suggests that Ecuador’s application of straight baselines is out of the sense of legal rights.

7.2.2.3

Duration as a Complementary Factor

According to ILC’s draft conclusion, if state practice is general, no particular duration is required.34 Nevertheless, for the completeness of legal reasoning, the duration of state practice might to a certain extent consolidate the foregoing analysis. In terms of duration, continental States have been continuously applying straight baselines to mid-ocean archipelagos for nearly a century. Early in 1903, Demark treated the Faroe Islands as a unit for the demarcation of its maritime zones. Similarly, in 1934, Ecuador enacted the first decree concerning the Galapagos Islands which also treated this archipelago as a whole for the measurement of territorial seas. Especially since the 1960s, many continental States have laid down legislation which provides for the application of straight baselines to mid-ocean archipelagos. 35 Although there is no definite duration for the crystallization of customary international law, it is sufficient in light of the long history of straight baselines as applied to the mid-ocean archipelagos.

7.2.2.4

USA as a “Persistent Objector”?

As a manifestation of state consent, there exists a special regime on persistent objector which allows specific states to claim waiver from the legally binding effect of a newly established rule of customary international law. In accordance with the ILC’s draft conclusions on identification of customary international law, the regime on persistent objector applies in the following scenario: 1. Where a State has objected to a rule of customary international law while that rule was in the process of formation, the rule is not opposable to the State concerned for so long as it maintains its objection. 2. The objection must be clearly expressed, made known to other States, and maintained persistently.

33 As regards Communications related to the Declaration made by Ecuador upon accession and Objections related to the Declaration made by Ecuador upon accession, See UN Law of the Sea Bulletin, No. 83, 2014, pp. 14–19. 34 Text of the Draft Conclusions on Identification of Customary International Law, International Law Commission Annual Report on the Seventieth Session (2018), A/73/10, p. 120. 35 See Sophia Kopela, Dependent Archipelagos in the Law of the Sea, Martinus Nijhoff Publishers, 2013, pp. 117–139, pp. 117–139; also Chinese Society of International Law, “South China Sea Arbitration Awards: A Critical Study”, Chinese Journal of International Law, Vol. 17, 2018, pp. 487– 492; Chinese.

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3. The present conclusion is without prejudice to any question concerning peremptory norms of general international law (jus cogens).36 Bearing this in mind, the persistent protest of USA should not become an obstacle to the formation of customary international law. Whenever some States employ the system of straight baselines to mid-ocean archipelagos, the USA shows no tolerance and puts forward protest through diplomatic and military channels. Its attitude can be detected from the website of the USA Department of State. Since the 1970s, it has been issuing the series of reports entitled Limits in the Seas,37 with the aim to examine the maritime boundaries of other States and assess their consistency with international law. The USA has been insisting upon the application of normal baselines to all midocean archipelagos. The problem is, Can the USA’s strong opposition block the formation of customary rules with regard to the application of straight baselines to mid-ocean archipelagos? In international law, a State may exempt itself from the application of a new customary rule by persistent objection during the norm’s formation.38 Hence, in light of general international law and the ILC’s conclusion on persistent objector, USA’s standpoint might have potential impact on the relevant States, but can hardly deny the existence of the customary rules. Notably, in a recent journal article published in Ocean Development and International Law, J. Ashley Roach, who once served as a legal adviser at the USA Department of State, points out that “six of the 15 claims to enclose offshore archipelagos have been protested by nine states”.39 He endeavors to deny the generality of state practice concerning the application of straight baselines to mid-ocean archipelagos. If this is the whole picture, it seems the USA is not alone in fighting against so-called excessive maritime claims with respect to straight baselines. In a reply to Roach, Chris Whomersley, the former Deputy Legal Adviser of UK Foreign & Commonwealth Office, adds a more nuanced analysis. According to Whomersley, “of those fifteen instances, there were objections to less than half of them (seven out of 15), and in a majority of the instances where there was an objection, the United States was the sole objector(four out of seven).”40 Provided the specific circumstances can be taken into account seriously, Whomerley’s research findings seem closer to the facts. Therefore, the USA remains alone as a persistent objector when it comes to the formation of a customary rule on straight baselines as applied to mid-ocean archipelagos.

36 Text of the Draft Conclusions on Identification of Customary International Law, International Law Commission Annual Report on the Seventieth Session (2018), A/73/10, p. 121. 37 The Limits in the Seas reports are available at: https://www.state.gov/limits-in-the-seas/ (Accessed on 8 June 2020). 38 James Crawford, Brownlie’s Principles of Public International Law, 8th edition, Oxford University Press, 2012, p. 28. 39 J. Ashley Roach, “Offshore Archipelagos Enclosed by Straight Baselines: An Excessive Claim?”, Ocean Development and International Law, Vol. 49, 2018, pp. 179–181. 40 Chris Whomersley, “Offshore Archipelagos Enclosed by Straight Baselines: A Reply to J. Ashley Roach”, Ocean Development and International Law, Vol. 49, 2018, pp. 204–205.

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It follows from the foregoing that, continental States are entitled to apply the system of straight baselines to dependent mid-ocean archipelagos, which constitutes a rule of customary international law resulting from the existence of general state practice and opinio juris. Naturally, any claim based on customary international law will generate legal controversies among international lawyers. Due to different perspectives or positions, the understanding on legal basis for the application of straight baselines can hardly be reconciled with one voice. Bearing in mind the ICJ’s jurisprudence in identifying customary rules, however, strict approaches towards identification of customary international law in the case of applying straight baselines to mid-ocean archipelagos appear to be extreme, or at least lack the minimum tolerance. In terms of legitimate concerns, inter alia, geography, history, security, economic development and environment protection, the mid-ocean archipelagos belonging to continental States share no less interest than archipelagic States.

7.3 The Requirements for Applying Straight Baseline to the Mid-Ocean Archipelagos It is to be noted that early in 1958, Jens Evensen, the then Advocate at the Supreme Court of Norway, had produced an authoritative report on the application of straight baselines to mid-ocean archipelagos. In its conclusion, he acknowledged that “no hard and fast rules exist as to the delimitation of the territorial waters of archipelagos…However, this does not mean that rules and principles do not exist, or should not be established, but that such rules ought to have a certain flexibility”.41 In the present author’s opinion, Evensen’s conclusion can be regarded as the best guideline for us to identify the legal basis of straight baselines as applied to dependent archipelagos. There are a lot of unresolved issues left by UNCLOS III, and new challenges and problems have arisen since the entry into force of LOSC. Nowadays, an increasing number of international lawyers believe that LOSC is not a static monument, but a “living instrument”, which calls for dynamic interpretation so as to match up with changing circumstances.42 As to those matters not regulated by LOSC, the drafters acknowledged in the preamble to LOSC that such matters “continue to be governed by the rules and principles of general international law”. Against this background, it is reasonable to adopt an open and flexible approach to the existence of a customary rule that “continental States are entitled to apply the system of straight baselines to dependent mid-ocean archipelagos”. Such a straightforward acknowledgement can to a certain degree ease the legal uncertainties that have haunted continental States 41 See

Jens Evensen, “Certain Legal Aspects concerning the Delimitation of the Territorial Waters of Archipelagos”, Extract from the Official Records of the United Nations Conference on the Law of the Sea, Volume I (Preparatory Documents), UN Doc. A/CONF.13/18, p. 301. 42 See Judge Vladimir Golitsyn, “Foreword”, in Alexander Proelss (ed.), United Nations Convention on the Law of the Sea: A Commentary, C.H. Beck, Hart and Nomos, 2017.

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possessing mid-ocean archipelagos for decades, and become a new point of departure for the future law-making process in this respect. Since the application of straight baselines to mid-ocean archipelagos is based on customary international law, rather than Article 7 or Article 47 of LOSC, such straight baselines are of a sui generis nature. Thus, there exist three categories of straight baselines in international law of the sea: mainland straight baselines under Article 7 of LOSC, archipelagic baselines under Article 47 of LOSC, and dependent archipelagic baselines under customary international law. Nevertheless, since straight baselines can enclose routes normally used for navigation, it is necessary to outline certain qualifications so as to prevent the abuse of dependent archipelagic baselines. According to Evensen’s report in 1958, there are several criteria for a state to follow in applying straight baselines to outlying archipelagos, such as: close dependence of the territorial sea upon the land domain of the archipelago; no departure to any appreciable extent from the general direction of the coast of the archipelago viewed as a whole; no exorbitantly long baselines closing vast areas of sea to free navigation and fishing; no hindrance to the strait used for international navigation in enclosed waters.43 In retrospect, Evensen’s requirements for the application of straight baselines can be traced back to the creative jurisprudence in the 1951 Anglo-Norwegian Fisheries Case. Given the evolution of the law of the sea, those criteria have been codified more or less by the Geneva Convention on the Territorial Sea and Contiguous Zone and LOSC. Therefore, the provisions in LOSC relating to straight baselines might be of reference value in regulating the application of straight baselines to dependent archipelagos. Although Article 7 or 47 of LOSC cannot constitute the appropriate legal basis of dependent archipelagic baselines, some common principles enshrined in both provisions can be extracted and become the guidelines for continental States to draw their dependent archipelagic baselines. According to Article 7, there are at least three requirements which should be strictly followed during the application of straight baselines: 3. The drawing of straight baselines must not depart to any appreciable extent from the general direction of the coast, and the sea areas lying within the lines must be sufficiently closely linked to the land domain to be subject to the regime of internal waters. … 5. Where the method of straight baselines is applicable…account may be taken, in determining particular baselines, of economic interests peculiar to the region concerned, the reality and the importance of which are clearly evidenced by long usage. 6. The system of straight baselines may not be applied by a State in such a manner as to cut off the territorial sea of another State from the high seas or an exclusive economic zone. 43 See Jens Evensen, “Certain Legal Aspects concerning the Delimitation of the Territorial Waters of Archipelagos”, Extract from the Official Records of the United Nations Conference on the Law of the Sea, Volume I (Preparatory Documents), UN Doc. A/CONF.13/18, p. 302.

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According to Article 47, when archipelagic States employ the system of archipelagic baselines, they should abide by the following requirements: 2. The length of such baselines shall not exceed 100 nautical miles, except that up to 3 per cent of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of 125 nautical miles. 3. The drawing of such baselines shall not depart to any appreciable extent from the general configuration of the archipelago. … 5. The system of such baselines shall not be applied by an archipelagic State in such a manner as to cut off from the high seas or the exclusive economic zone the territorial sea of another State. 6. If a part of the archipelagic waters of an archipelagic State lies between two parts of an immediately adjacent neighbouring State, existing rights and all other legitimate interests which the latter State has traditionally exercised in such waters and all rights stipulated by agreement between those States shall continue and be respected. Therefore, if a group of islands belonging to certain continental States bear the nature of unity in terms of geographical, economic, political and historical cohesion, it is appropriate to treat such mid-ocean archipelagos as a whole for the demarcation of territorial sea and draw straight baselines from the outermost points of the archipelago. In the present author’s view, where the method of straight baselines is employed, at least four criteria should be followed: first, the straight baseline shall contain main islands and follow the general configuration of the archipelago; second, the length of such baselines shall not exceed 100 nautical miles; third, the application of straight baselines shall not cause a cut-off effect to the territorial sea of another State; and fourth, existing rights and legitimate interests of neighbouring States shall continue and be respected.

7.4 China’s Application of Straight Baselines to Mid-Ocean Archipelagos 7.4.1 China’s Existing Straight Baselines of Mid-Ocean Archipelagos Reexamined On 15 May 1996, China issued a Declaration on Baselines of Territorial Sea, which indicated straight baselines along parts of its coast.44 China has created 28 base points and connected them to enclose the Xisha/Paracel Islands. However, the USA Department of State points out that the straight baselines of the Xisha/Paracel Islands 44 China, “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”, UN Law of the Sea Bulletin, No. 32, 1996, pp. 37–40.

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cannot be based on Article 7, as the requirements for recourse to Article 7 are not met in this case. The two longest segments of the straight baselines amount to 78.8 nm and 75.8 nm. Nor can China rely on Article 47, as archipelagic straight baselines only apply to archipelagic States. As a continental State, China cannot establish archipelagic straight baselines around dependent islands. Alternatively, even if the Xisha/Paracel Islands was an archipelagic state, there would be no basis for archipelagic baselines because the water to land ratio would be approximate 26.1:1, far exceeding the maximum allowed ratio of 9:1 under Article 47(1).45 On 10 September 2012, as a countermeasure towards Japan’s nationalization movement of the Diaoyu Islands, China proclaimed straight baselines around the Diaoyu Islands. The first group of straight baselines connects Diaoyu Dao, Haitun Dao, Xiahuya Dao, Haixing Dao, Huangwei Yu, Haigui Dao, Changlong Dao, Nanxiao Dao, and Changyu Dao. The second group of straight baselines connects Chiwei Yu, Wangchi Dao, Xiaochiwei Dao, Chibeibei Dao, and Chibeidong Dao.46 Nonetheless, J. Ashley Roach points out that both sets of straight baselines cannot be based on Articles 7 and 47 of LOSC because the water to land ratio with regard to the first group of Diaoyu Islands is 27.1:1, and the longest two segments of the straight baselines are 16.22 nm (Diaoyu Dao to Haitun Dao) and 14.06 nm (Haigui Dao to Changlong Dao).47 Besides, on 7 March 2013, the USA sent a diplomatic note to China and protested the straight baselines as applied to Diaoyu Islands. In the diplomatic note, the USA particularly emphasized that: To the extent that the Statement might be intended to suggest that archipelagic baselines may be drawn around the Diaoyu/Senkaku Islands, this also would be inconsistent with international law. Under customary international law, as reflected in Part IV of the Law of the Sea Convention, only “archipelagic States” may draw archipelagic baselines joining the outermost points of an archipelago. Coastal States, such as China and the United States, do not meet the definition of an “archipelagic States” reflected in Part IV of the Convention. China, therefore, may not draw archipelagic baselines enclosing offshore islands and waters, and the proper baselines for such features is the low-water line of the islands.48

As the foregoing analysis illustrates, there exists a customary rule that “continental States are entitled to apply straight baselines to dependent mid-ocean archipelagos” , and the dependent archipelagic straight baselines enjoys a sui generis nature. Thus, the USA’s analogical application of Articles 7 and 47 of LOSC is not without problem. The key assessment standard lies in whether the Xisha/Paracel Islands and Diaoyu Islands meet the nature of unity, and those criteria extracted from the LOSC and state practice are followed in general. 45 USA

Department of State, “Straight Baseline Claim: China”, Limits in the Seas, No. 117, p. 17. “Statement of the Government of the People’s Republic of China on the Baselines of the Territorial Sea of Diaoyu Dao and Its Affiliated Islands”, UN Law of the Sea Bulletin, No. 80, 2013, pp. 30–31. 47 J. Ashley Roach, “China’s Straight Baseline Claim: Senkaku (Diaoyu) Islands”, ASIL Insights, vol.17, Issue 7, February 13, 2013, p. 5. 48 J. Ashley Roach, “Offshore Archipelagos Enclosed by Straight Baselines: An Excessive Claim?”, Ocean Development and International Law, Vol. 49, 2018, pp. 200–201. 46 China,

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As regards the nature of unity, it is common sense that the Xisha/Paracel Islands constitute a whole group in the respect of geography, history, economy, politics and environment. In accordance with the typical state practice, the system of straight baselines applied to Xisha/Paracel Islands contains the main islands and follows the general configuration of the archipelago. Among the 27 segments of baselines, 21 segments of straight baselines range from 0.2 nm to 2 nm in length. The longest two segments are 75.8 nm and 78.8 nm respectively.49 It is notable that the longest two straight baselines in the case of Faroe Islands and Galapagos Islands even amount to 60.8 nm and 124 nm respectively.50 It follows from the foregoing analysis that China’s practice in the case of Xisha/Paracel Islands calls for more tolerance. Nor can the straight baselines applied to the Diaoyu Islands be reprehended without reservation from a legal perspective. The Diaoyu Islands constitute an integral group which can be dated back to ancient times. It should be emphasized that, to avoid enclosing a too broad area of the East China Sea, China separates the Chiwei Yu Islands from the Diaoyu Islands and applies two sets of straight baselines, even though both groups are generally regarded as an integral unity in Chinese history and culture. Such a cautious application renders the longest segment of straight baselines only 16.22 nm in length,51 which shows good faith towards the traditional maritime rights of other states, and reflects China’s respect for general international law to a certain extent.

7.4.2 The Prospect of China’s Application of Straight Baselines in the South China Sea According to Article 3 of China’s Law on the Territorial Sea and the Contiguous Zones 1992, “The method of straight baselines composed of all the straight lines joining the adjacent base points shall be employed in drawing the baselines of the territorial sea of the People’s Republic of China”. In addition, bearing in mind the nine-dash line upheld persistently by China since 1947, and the existing practice of drawing straight baselines for the Xisha Islands and Diaoyu Islands, it cannot be excluded the possibility that China would apply the straight baselines to three other groups of islands in the South China Sea, especially the Nansha/Sprartly Islands, in the foreseeable future.52 49 USA

Department of State, “Straight Baselines Claim: China”, Limits in the Seas, No. 117, 1996, p. 16. 50 See USA Department of State, “Straight Baselines: Faeroes”, Limits in the Seas, No. 13, 1970, p. 3; also USA Department of State, “Straight Baselines: Ecuador”, Limits in the Seas, No. 42, 1972, p. 7. 51 J. Ashley Roach, “China’s Straight Baseline Claim: Senkaku (Diaoyu) Islands”, ASIL Insights, vol.17, Issue 7, February 13, 2013, p. 5. 52 Chinese Society of International Law, “South China Sea Arbitration Awards: A Critical Study”, Chinese Journal of International Law, Vol. 17, 2018, pp. 463–465; and 500–503.

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Admittedly, compared with the practice of Xisha/Paracel Islands and Diaoyu Islands, the application of straight baselines to the three other groups of islands in the South China Sea, i.e. Nansha/Spratly Island, Zhongsha Islands/Macclesfield Bank, Dongsha/Pratas Islands, would be a relatively tough mission. In light of comments and research works by authors from outside China, there are around 200 maritime features in the South China Sea, and their exact legal entitlement in drawing the baselines need to be identified individually.53 Moreover, most of the islands within the scope of the Nansha/Spratly Islands are controlled by different bordering countries of the South China Sea, which could render China’s proclamation of straight baselines merely of assertive meaning. For the time being, there is still no explicit evidence that China will proclaim straight baselines around the Nansha/Spratly Islands in the immediate aftermath of the South China Sea Arbitration, which might be interpreted as a self-restraint policy so as to avoid the aggravation or extension of the existing disputes. Notwithstanding the above difficulties, as the Diaoyu Islands dispute between China and Japan illustrates, it is predictable that if other claimant States, especially Vietnam and the Philippines, drive China to settle the South China Sea dispute without patience, China may be forced to take certain countermeasures to demonstrate its determination to safeguard national interest, including the proclamation of straight baselines of the three other groups of “islands” in the South China Sea. After all, continental States are not forbidden to apply straight baselines to their mid-ocean archipelagos under international law.

7.5 Concluding Remarks In essence, mid-ocean archipelagos belonging to continental States share the same interest and needs as archipelagic States,54 while LOSC only provides for archipelagic baselines applied to the latter. This gap has to a certain extent been filled by the rule of customary international law that “continental States are entitled to apply straight baselines to dependent mid-ocean archipelagos”. Accordingly, at least in the respect of entitlement, LOSC has a very limited, if not negligible, role in assessing the legality of the straight baselines as applied to dependent mid-ocean archipelagos. Since the application of straight baselines would necessarily encircle a great area of ocean, and the original balance between maritime powers and coastal states established under LOSC would be difficult to be maintained, the relevant states should 53 See Robert W. Smith, “Maritime Delimitation in South China Sea: Potentiality and Challenges”, Ocean Development and International Law, Vol. 41, 2010, pp. 222–223; also Robert Beckman & Clive H. Schofield, “Defining EEZ Claims from Islands: A Potential South China Sea Change”, International Journal of Marine and Coastal Law, Vol.29, 2014, pp. 210–211. 54 See Sophia Kopela, Dependent Archipelagos in the Law of the Sea, Martinus Nijhoff Publishers, 2013, pp. 236–243; also Mohamed Munavvar, Ocean States: Archipelagic Regimes in the Law of the Sea, Martinus Nijhoff Publishers, 1995, pp. 27–37.

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self-consciously follow certain requirements when applying the straight baselines to mid-ocean archipelagos. Although the relevant provisions of LOSC with regard to mainland straight baselines and archipelagic baselines cannot constitute the apt legal basis for dependent archipelagic baselines, several common principles can be extracted and become the guidelines governing the application of this sui generis baseline. To ease the concerns or criticism from other States, it is of significant benefit for the States concerned to make reference to these common principles. As Evensen aptly pointed out in 1958, “Frequently the only natural and practical solution is to treat such outlying archipelagos as a whole for the delimitation of territorial waters by drawing straight baselines from the outmost points of the archipelagos…Whether or not an outlying archipelago should be treated in such a manner will, to a large extent, depend on the geographical features of the archipelago”.55 Under general international law, China is entitled to apply straight baselines to its mid-ocean islands. Its existing practice with regard to Xisha/Paracel Islands and Diaoyu Islands remains within the scope of legality and legitimacy, in light of the common principles enshrined in the system of straight baselines as well as the relevant state practice since the last century. In retrospect, it is the general experience that China’s proclamation of straight baselines of mid-ocean archipelagos constitutes a part of its countermeasures against other neighboring states’ enhancement of control over the disputed islands. Thus, the escalation of the South China Sea dispute could provoke China to proclaim the straight baselines of other groups of islands in this region, though it has to overcome certain geographical, legal and political barriers. From the proactive perspective, the better way forward for all the disputing parties bordering the South China Sea is to exercise self-restraint and resort to joint development before the final settlement of dispute.56

References Ashley Roach, J. (2013). China’s straight baseline claim: Senkaku (Diaoyu) Islands. ASIL Insights, Vol. 17, Issue 7, February 13, 2013, p. 5. Ashley Roach, J. (2018). Offshore archipelagos enclosed by straight baselines: An excessive claim? Ocean Development and International Law, Vol. 49, 2018, pp. 197–202. Beckman, R., & Schofield, C. H. (2014). Defining EEZ claims from islands: a potential south china sea change. International Journal of Marine and Coastal Law, 29, 210–211. Chinese Society of International Law. (2018). South china sea arbitration awards: A critical study. Chinese Journal of International Law, 17, 487–492. Churchill, R. R., & Lowe, A. V. (1999). The law of the sea, 3rd Edition. Manchester University Press, p. 120. 55 See Jens Evensen, “Certain Legal Aspects concerning the Delimitation of the Territorial Waters of Archipelagos”, Extract from the Official Records of the United Nations Conference on the Law of the Sea, Volume I (Preparatory Documents), UN Doc. A/CONF.13/18, p. 302. 56 See Hua Zhang, “The Duty of Cooperation in Semi-Enclosed Seas: Exploring the Way Forward for South China Sea”, in Keyuan Zou (ed.), Maritime Cooperation in Semi-Enclosed Seas: Asia and European Experiences, Brill, 2019, pp. 39–40.

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Crawford, J. (2012). Brownlie’s principles of public international law, 8th edition. Oxford University Press, pp. 22–25. Jayewardene, H. W. (1990). The regime of islands in international law. Martinus Nijhoff Publishers, pp. 140–141. Judge Vladimir Golitsyn. (2017). Foreword. In A. Proelss (Ed.), United nations convention on the law of the sea: A commentary. C.H. Beck, Hart and Nomos. Kopela, S. (2013). Dependent archipelagos in the law of the sea. Martinus Nijhoff Publishers. Michael Reisman, W., & Westerman, G. S. (1992). Straight baselines in maritime boundary delimitation. St. Martin’s Press, p. 156. Munavvar, M. (1995). Ocean States: Archipelagic regimes in the law of the sea. Martinus Nijhoff Publishers. Nandan, S. N., & Rosene, S. (Eds.), United Nations Convention on the Law of the Sea 1982: A Commentary(Vol.2), Martinus Nijhoff Publishers, 1993, p. 412. Roach, J. A., & Smith, R. W. (2012). Excessive maritime claims, 3rd Edition. Martinus Nijhoff Publishers.. Rothwell, D. R., & Stephens, T. (2016). The international law of the sea. Hart Publishing, pp. 185– 191. Smith, R. W. (2010). Maritime delimitation in south china sea: Potentiality and challenges. Ocean Development and International Law, 41, 222–223. Talmon, S. (2015). Determining customary international law: The ICJ’s methodology between induction, deduction and assertion. European Journal of International Law, 26, 441–443. Tara Davenport. (2015). The archipelagic regime. In D. R. Rothwell et al. (Eds.), The Oxford Handbook of the Law of the Sea, Oxford University Press, p. 156. Whomersley, C. (2018). Offshore archipelagos enclosed by straight baselines: A reply to j. ashley roach. Ocean Development and International Law, 49, p. 205. Wood, M. (2018). The fifth report on identification of customary international law, A/CN.4/L.717, 14 March 2018. Zhang, H. (2019). The duty of cooperation in semi-enclosed seas: exploring the way forward for south china sea. In K. Zou (Ed.), Maritime Cooperation in Semi-Enclosed Seas: Asia and European Experiences, Brill, pp. 39–40.

Chapter 8

A Critique Against the Concept of Mid-Ocean Archipelago Yurika Ishii

8.1 Introduction The modern maritime system is based on a zonal approach, where the United Nations Convention on the Law of the Sea1 (UNCLOS) defines the maritime zones that may be claimed by the coastal states, stipulates how zones are to be delimited and sets out the respective rights and obligations of coastal other states therein. Controversies seem to remain whether international law recognizes the maritime jurisdiction that is not specified under UNCLOS. One of those problems incurred by such an alleged ambiguity is whether a state may draw a baseline around “mid-ocean archipelago” under international law which is an archipelago. It is an archipelago which does not satisfy the geographic conditions provided either under Article 7 or Article 47 of UNCLOS. This concept is occasionally referred to as “outlying archipelago” or “off-shore archipelago.” There is no meaningful difference among these terms. This chapter mainly uses the term “mid-ocean archipelago,” but it will also use the other terms interchangeably when it cites other scholarly papers. The purpose of this chapter is to examine whether such “mid-ocean archipelago” is recognized under international law. Before the main discussion, a brief examination of concepts that are pertinent to the current problem is necessary.

1 United Nations Conventions on the Law of the Sea, adopted on 10 December 1982, entered into force on 16 November 1994, 1833 UNTS 3.

This research was financially supported by JSPS 18K01290. A part of contents of this chapter has been published in a Japanese report, Japan Institute of International Affairs (2019). Y. Ishii (B) National Defense Academy of Japan, Yokosuka, Japan e-mail: [email protected] © Kobe University 2021 D. Tamada and K. Zou (eds.), Implementation of the United Nations Convention on the Law of the Sea, Kobe University Monograph Series in Social Science Research, https://doi.org/10.1007/978-981-33-6954-2_8

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The first is the concept “archipelago.” While there is no limitation with regard to the number of the islands, the distance, and area of the sea that islands cover, its common feature is the unity.2 It is indispensable that they could be recognized as a group, chain or cluster. In addition, it is the textual requirement that it consists of “islands,” which is “a naturally formed area of land, surrounded by water, which is above water at high tide.3 ” This notion of unity is reflected in Article 46(b) of UNCLOS, which defines the term as “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.” In contrast, the terms “mid-ocean,” “outlying,” and “off-shore” refer to archipelagos which belongs to a continental state, although the islands are located at a distance from the mainland. In fact, there are cases where the group of islands could be characterized as “coastal archipelagos,” which is “a fringe of islands along the coast in its immediate vicinity,” where the coastal state is entitled to draw a straight baseline according to Article 7. The main distinction between the mid-ocean archipelago and the coastal archipelago is the distance between the islands and the coast. As the text explicitly provides, the latter has to be sufficiently close to the mainland. The second is the concept of “baseline.” A baseline under UNCLOS is the line for measuring the breadth of the territorial sea, and eventually, exclusive economic zone (EEZ) and continental shelf (CS). In principle, a normal baseline shall be drawn, which is “the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State,” as Article 5 provides. There are two situations that UNCLOS allows the coastal State to deviate from Article 5. Article 7 provides that a coastal state may draw a straight baseline “in localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity.” Nothing in the convention defines what consists of the term “the coast” and “fringe of islands,” and the interpretation is not uniform among the states. The case should be discounted where the group has a sufficiently large island so that its coast may consist the basis for the straight baseline. Admittedly, it is difficult to draw a clear-cut line between the ones which are governed by Article 7 and the ones which are not. In a report adopted by International Law Association Committee on Baselines under the International Law of the Sea in 2018, the Committee concluded that “there is no agreed single interpretation of Article 7 of the LOSC and there is no new rule of customary international law on straight baselines.”4 It is considered that the 2 Sophia

Kopela, Dependent Archipelagos in The Law of The Sea (Martinus Nijhoff 2013), 5. Article 121(1). 4 International Law Association, Committee on Baselines under the International Law of the Sea, Resolution 1/2018, Annex, Sydney Conclusions on Baselines under the International Law of the Sea [ILA Resolution of 2018], para. 1. 3 UNCLOS,

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opposability of straight baseline depends on lack of protest from other states.5 The assessment of the committee was that “[n]otwithstanding significant evidence of variations in state practice, many straight baselines when considered in their distinct geographic settings are in general conformity with Article 7 and consistent with the indeterminate concepts that it contains”.6 In addition, a “fringe of islands” under Article 7 can be “applied flexibly so as to take into account multiple different island configurations that may be located offshore a mainland.”7 The Committee stated that there is no “consistency in state practice, or assessment by international courts and tribunals as to the distance between a fringe of islands and the mainland,” but rather “the proximity of the islands to the coast is controlled by the general criteria within Article 7.” Article 47 provides that an archipelagic State may draw straight archipelagic baselines in order to secure the unity. UNCLOS specifies geographic conditions that straight archipelagic baselines may be drawn. Within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1–1 and 9–1.8 The length of such baselines shall not exceed 100 nautical miles, except that up to 3% of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of 125 nautical miles.9 The system of such baselines shall not be applied by an archipelagic State in such a manner as to cut off from the high seas or the exclusive economic zone the territorial sea of another State.10 There are currently 22 states which claims archipelagic baselines.11 Research conducted by Ashley Roach shows that the geographical conditions are met by vast majority of these states.12 In fact, there are states which chose outermost turning points that do not satisfy the criteria of Article 47(4), using low-tide elevations 5 Ibid, paras. 1 and 6. The Committee has identified straight baseline claims from 88 states. Appendix

1 of its 2018 Report list a total of 82 protests or other forms of objection, although others may not be publicly available. Straight baseline claims of 39 States, almost 50% of straight baselines claims, all but Iran parties to UNCLOS, have been objected to by 21 States and the EU, only 2 of which, Iran and the US, are not party to the UNCLOS. The majority of coastal states, 91 of 150, have sought to proclaim straight baselines in reliance upon Article 7 of the LOSC. ILA, Sydney Conference 2018, Baselines under the International Law of the Sea, Final Report (2018), Appendices 1–3 [ILA 2018 Report]. 6 ILA Resolution of 2018, para. 1. 7 Ibid, para. 3. 8 UNCLOS, Article 47(1). 9 Ibid, Article 47(2). 10 Ibid, Article 47(5). 11 These States are: Antigua and Barbuda, the Bahamas, Cabo Verde, Comoros, the Dominican Republic, Fiji, Grenada, Indonesia, Jamaica, Kiribati, Maldives, Marshall Islands, Mauritius, Papua New Guinea, the Philippines, Sao Tome and Principe, Seychelles, the Solomon Islands, Saint Vincent and the Grenadines, Trinidad and Tobago, Tuvalu, and Vanuatu. For the latest state practices, see ILA Report of 2018, Appendix 1. See also Kevin Baumert and Brian Melchior, ‘The Practice of Archipelagic States: A Study of Studies’ (2016) 46 Ocean Development & International Law 60; J. Ashely Roach and Robert W.Smith, Excessive Maritime Claims (Brill 2012), 209. 12 ILA Report of 2018, Appendix 1.

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situated wholly beyond the territorial sea or submerged features. However, these violations are rather technical in its nature and it is not difficult for other states to point out the deviation.13 The coastal states are not eager to claim the lines that do not satisfy the criteria of UNCLOS.14 Contrary to these practices, the mid-ocean archipelago is the case where a state with a relatively large mainland establishes baseline surrounding a group of islands. Hua Zhang, the author of the corresponding chapter in this book, describes that mid-ocean archipelagoes could be roughly categorized into two. The first is the archipelagos consist of one or two dominant islands and a fringe of islands along the coast in its immediate vicinity; and the ones consist of islands of similar size, which are located at a far distance from each other.15 However, Zhang’s definition of mid-ocean archipelago requires further elaboration because the description of the latter group, particularly “a far distance from each other” is too obscure. In addition, the “fringe of islands” provided in this article shall be by definition distinguished from “mid-ocean archipelago.” It is therefore no surprise that the United States has tolerated the former but criticized the latter. Instead, the present chapter uses the term “mid-ocean archipelago” only to point the latter category, because the former is governed by Article 7 of UNCLOS. The rest of this chapter will analyze the scope of Article 7 (straight baselines) and Article 47 (archipelagic baselines) of UNCLOS. It will then examine the comprehensiveness of the UNCLOS as well as its superiority to pre-existing customary international law in the light of the current problem (Sect. 8.2). Then, it will briefly consider the counter-argument of this chapter, mainly focusing on Chinese researchers (Sect. 8.3). This chapter will not discuss the legality of the straight baselines surrounding Senkaku Islands, which was touched upon in Hua’s chapter, since it requires the decision on the attribution of the territorial title of the islands, which is beyond the scope of this volume.

8.2 The Lack of Recognition of Mid-Ocean Archipelago under UNCLOS and Customary International Law: The Comprehensiveness and Superiority of UNCLOS The supporters of the baselines surrounding a mid-ocean archipelago commonly claim that there is an “uncertainty,” “ambiguity” or a “lacuna” within the UNCLOS regime. It is undisputed there is neither a provision which allows a coastal state to establish a baseline surrounding a mid-ocean archipelago, nor prohibits a State from doing so. 13 C.

G. Lathrop, ‘Baselines’ in Donald Rothwell (ed), Oxford Handbook of The Law of The Sea (Oxford University Press 2015), 69. 14 Ibid; Roach and Smith, supra note 11, 209. For instance, Cape Verde rectified the baseline system to bring it into conformity with Article 47 after it was criticized that its baseline was excessive. 15 See Hua Zhang, Chap. 7 of the present volume.

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Nonetheless, it does not mean that the coastal state may draw a baseline even if the archipelagos do not satisfy the conditions of either Article 7 or 47. On the contrary, the zonal approach that UNCLOS is based on should be interpreted in a comprehensive manner in setting out the nature of each maritime column.16 It goes without mentioning that various practices existed before the codification of the law of the sea. However, UNCLOS was adopted in order to overcome those inconsistency and to create a regime that would apply to every corner of the ocean. One of the main aims of UNCLOS III was to resolve uncertainties over the breaths and legal nature of the coastal State’s maritime zones to prevent the phenomenon of “creeping jurisdiction.17 ” It is precisely because no reservations or exceptions may be made to this Convention18 that the instrument needs to be comprehensive. It would be contrary to the texts of this instrument to claim that does not fit to any of the zones provided in the instrument. If one allows a room of interpretation to recognize a zone that is not provided under the Convention, it would make the delicate balance that this convention is based on meaningless. It should be noted that UNCLOS is expected to function as a “framework” convention to a certain extent. Article 311(2) states that “[t]his Convention shall not alter the rights and obligations of States Parties which arise from other agreements” as long as they are compatible with this Convention and do not affect the enjoyment by other States Parties of their rights or the performance of their obligations under this Convention. It also provides under Article 311(3) that “[t]wo or more States Parties may conclude agreements modifying or suspending the operation of provisions of this Convention, applicable solely to the relations between them,” but only on the conditions that such agreements would not contradict with the provisions of UNCLOS. However, the instrument has no room for any claim that would contradict with the existing articles. This claim that UNCLOS provides a comprehensive regime should be distinguished from a criticism that the creation of the category of archipelagic states was not sufficiently fair. For instance, James Crawford, in his Hague Academy lecture published in 2014, criticizes this definition as “arbitrary,” precisely because it excludes the mid-ocean archipelagoes.19 He argues that “this amounts to discrimination and is a deviation from formal equality under international law.” In addition, “[b]y establishing archipelagic state sovereignty over archipelagic waters and superjacent airspace, UNCLOS created one of the largest expansions (comparable to exclusive economic

16 South

China Sea Arbitration, para. 246. Robin Churchill, ‘The 1982 United Nations Convention on The Law of The Sea’ in Donald Rothwell et al (eds), Oxford Handbook of The Law of The Sea (Oxford University Press 2015), 24. 18 UNCLOS, Article 309. 19 James Crawford, Chance, Order, Change: The Course of International Law (ALI-Pocket 2014), 326 (para. 421). 17 R.

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zones) of maritime jurisdiction in the history of the law of the sea, based entirely on the on grounds of certain state’s ‘special circumstances.20 ’ It was indeed the independence of a number of archipelagic states during the 1970s to the early 1980s that shifted the arguments regarding the status of the archipelago. During the colonial era, their former suzerain states did not consider adopting a special regime for the group of islands. The Philippines and Indonesia acquired their independence immediately after World War II, and established the archipelagic baseline in early stage. They became the two most important countries which supported this special regime under UNCLOS. Daniel Patrick O’Connell in his paper published in 1971, thoroughly examined the pre-UNCLOS state practices concerning archipelagoes. He concludes that “All of the actual and potential archipelagic claimants are new States, preoccupied with their own development and local situations, and all of their predecessors were imperial Powers who subordinated local interests to considerations of the freedom of the seas, open communications and access to the riches of the world.21 ” However, for the historical and political reasons, “it would be unreasonable to suppose that resistance to archipelagic claims can be successfully persisted in over a long period in face of successful assertion and widespread political support.22 ” Therefore, he claimed that the only progressive approach is to seek to “integrate the archipelagic principle in existing international law in such a way as to accommodate the interests of the archipelagic State without disproportionately affecting the interests of other States and of the world at large.23 ” Anand, in his article in 1979, similarly argued that imperialist powers that possessed those islands “subordinated local interests to considerations of the freedom of the seas.24 ” Against this background, during UNCLOS III, one of the goals of which was to acquire an equitable distribution of the natural resources, the archipelagic groups consisting of Fiji, Indonesia, Mauritius, the Philippines strongly claimed for the creation of a special regimes for them. They proposed the criteria which would at least fit their geographical configuration and satisfy their national interest mainly because that was what mattered for them. Sofia Kopela explains that these archipelagic states were to secure their fragile independence, because such a new regime was interconnected with the issue of economic development, the exploitation of their natural resources and subsequently with the decolonization process.25 The issue of archipelagic states was dissociated 20 Ibid.

See also James Crawford, ‘Islands as Sovereign Nations’ (1989) 38 International & Comparative Law Quarterly 297. 21 Daniel Patrick O’Connell, ‘Mid-ocean archipelagos in international law’ (1971) 45 British Year Book of International Law 1, 75. 22 Ibid. 23 Ibid. 24 Ram Prakash Anand, ‘Mid-Ocean Archipelagos in International Law: Theory and Practice’ (1979) 19 Indian Journal of International Law 247. See also Jorge R. Coquia, ‘Development of the Archipelagic Doctrine as a Recognized Principles of International Law’ (1983) 58 Philippine Law Journal 13. 25 Kopela, 26.

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from the issues of the territorial sea and the baseline, partly because of such a peculiar political background.26 With this regards, the practices regarding the midocean archipelago, such as Denmark and Ecuador among others, did not count in the creation of Part IV of the convention. However, a treaty “shall be interpreted in good faith in accordance with the ordinary meaning in their context and in the light of its object and purpose.27 ” The circumstances of its conclusion is relevant only when the wordings are not clear, which is not the present case. In any event, Article 47 is not the only provision of which definition is somewhat selective or which does not necessarily match with the pre-UNCLOS history. Compromises were made in the convention to achieve the consensus of the conference. The delicate balance of interests embedded in the convention does not allow rights and agreements of the member states when it contravenes with this instrument. The other side of the coin is the superiority of UNCLOS to pre-convention norms. It is that the UNCLOS is a treaty that is to be the “constitution” of law of the sea. In other words, it has the superior status than other treaties and customary international laws. Therefore, it is considered that the convention supersedes earlier rights and agreements to the extent of any incompatibility. Otherwise, it would make the comprehensiveness of the instrument meaningless. Scholars who support the idea of mid-ocean archipelago tend to cite state practices prior to the codification of the law of the sea. However, such contention is not upheld because the practices contrary to the UNCLOS regime does not count after the allocation of the jurisdiction is done under this convention.

8.3 The Case for Mid-Ocean Archipelago? 8.3.1 The Straight Baseline Surrounding Mid-Ocean Archipelago The writings by Chinese scholars in English started to appear in the early 2010s.28 In its early stage, scholars tend to claim that the baseline regime under UNCLOS is applicable to the mid-ocean archipelago. They start their argument by pointing out the “unclarity” of the legal status. While conceding that the off-shore archipelago is not provided under Part IV of the UNCLOS, they claim that straight baseline under Article 7 is applicable because the legal status of the mid-ocean archipelago is ambiguous. 26 Shigeru

Oda, The Law of The Sea In Our Time II (Sijthoff 1977), 156; GA Official Record, 27th Sess. Supp. No. 21 (A/8721), Chap. 1, para. 23. 27 Vienna Convention on the Law of Treaties, adopted on 23 May 1969, entered into force on 27 January 1980, 1155 UNTS 331, Article 31(1). 28 Its Chinese version started to be published earlier. Due to the limitation on the author’s language capacity, this chapter has not covered Chinese writings at this stage.

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In writings in Chinese, some scholars seem to argue that the archipelagic baseline regime may be applicable to mid-ocean archipelagic states.29 Writings in English, however, commonly argues that the straight baselines are applicable, as long as they take the position that UNCLOS is applicable in this case. This section introduces available materials in turn. Jiang Li and Zhang Jie elaborates this line of arguments in their paper in 2010.30 It starts with the claim that Part IV of UNCLOS does not clearly provides whether the archipelagic regime applies to the mid ocean archipelagos of continental countries. After examining the opposing positions regarding the applicability of Part VI to the mid-ocean archipelago, the authors support the negative conclusion. It is because the “archipelagic regime which was designed specifically for the archipelago states.31 ” However, “the continental countries can regard the mid ocean archipelagos as a single unit and thus apply the straight baselines regime.”32 They point out that the opinions regarding the mid-ocean archipelago varied during the Third Conference on the Law of the Sea (UNCLOS III), and the final text of the Convention “intentionally avoids mentioning the mid-ocean archipelago.” However, based on the interpretation of the text and travaux preparatoire, they conclude that the applicability of the straight baseline is not excluded.33 Then, they examine whether four groups of islands, namely, Pratas Islands (the Dongsha Islands), Paracel Islands (the Xisha Islands), Macclesfield Bank and Scarborough Shoal (the Zhongsha Island) and Spratly Islands (Nansha Islands), in the South China Sea are also eligible for the straight baselines.34 As to the Paracel Islands, which has the most islands that are above water at high tide in the South China Sea, the author claims that they could be divided into two groups, i.e., Amphitrite Group (Xuande Islands) and the Crescent Group (Yongle Islands). Rather than drawing the baseline separately, the claim that the boundary of the territorial sea for the Paracel Islands shall be delimited as a whole, because of “the close relationship between the two islands in geography, and their significant importance to security and economic interests of China.”35 Regarding the Spratly Islands, the authors claim that it would not be appropriate to draw straight baselines to the whole group because it would be too broad. On the other hand, if each group of reefs is separately considered as a whole to draw its territorial sea, it would be difficult to select appropriate base points. The authors 29 Jianjun

Gao, China and International Law of the Sea (China Ocean Press, 2004), p. 138 (in Chinese). 30 Jiang Li and Zhang Jie, ‘A Preliminary Analysis of the Application of Archipelagic Regime and the Delimitation of the South China Sea’ (2010) 2010 China Oceans Law Review 167. 31 Ibid. 32 Ibid, 176. 33 Ibid, 178. 34 Ibid, 179. While the Chinese scholars consistently use Chinese names, for the matter of convenience, this chapter will use English names to describe these islands unless it is necessary to use Chinese version. 35 Ibid, 181.

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propose to split the islands and apply different rules respectively.36 For the group of reefs that are close to each other and can be considered as a whole, the straight base lines can be applied. For those islands among the reefs that are not appropriate to be considered as a whole. If they are sufficiently large, they can have their own separate baselines. For some isolated islands and reefs, whether to draw marine areas other than territorial sea and contiguous zone depends on their natural condition.37 The Pratas Islands and the Macclesfield Bank and Scarborough Shoal are not regarded as archipelago and the paper does not go into further examination whether they are entitled to an archipelagic baseline. It is pointed out, however, that the Scarborough Reef and the Pratas Island can apply straight baselines to draw their territorial seas separately.38 In 2012, Jia Nan similarly claim that the legal status off-shore archipelagos remain unsettled, while recognizing that they are distinct from Part IV of UNCLOS. After making the distinction between “coastal” and “outlying” archipelagos, the paper points out that “the legal regime of the outlying archipelagos of continental State remains ambiguous.”39 He then describes the opposing views during UNCLOS III as well as “diverging state practices and various theories of publists.”40 Regarding the outlying archipelagos of continental countries, “no definitive provision exists” whether the state may draw a straight baseline or an archipelagic baseline. He claims that (1) outlying archipelagos of continental state may draw straight baselines from the outermost points of the islands, islets and rocks and (2) in deciding the nature of waters of the baselines, “the close dependence of the territorial sea upon the land domain will always be the essential principle.”41 The article does not examine the precise conditions for a state to draw a straight baseline under Article 7 of the UNCLOS, nor the paper provide analysis whether China is entitled to draw a line around the Spratly Islands and others in the South China Sea. In 2013, Hong Nong, Li Jianwei, and Chen Pingping claim that the straight baseline regime is applicable to mid-ocean archipelago, including the Spratly Islands.42 It is to balance “the need of coastal States and that of many user States in this region” and “the rights of oceanic islands of archipelagic States and those of continental States.”

36 Ibid. 37 Ibid,

183–185.

38 Ibid. 39 Jia

Nan, ‘On the Outlying Archipelagos of Continental States’ (2012) 2012 China Oceans Law Review 41, 44. 40 Ibid. 41 Ibid. 42 Hong Nong, Li Jianwei and Chen Pingping, ‘The Concept of Archipelagic State and the South China Sea: UNCLOS, State Practice and Implication’ (2013) 2013 China Oceans Law Review 209.

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It starts with raising a problem that how China will designate its baselines in the Spratlys and what is the legal status of the maritime zones will “directly define the navigation regimes” in the waters. It traces the history of the special status of archipelagic water since the 1920s, the travaux preparatoire of Part IV of UNCLOS, and relevant state practices. It confirms that, regardless of the disagreements, it was decided by the Second Committee and the Conference that the archipelagic state regime only to independent archipelagic states meeting the criteria in Article 46.43 However, the authors emphasize that there existed continued disagreement among the participants of UNCLOS III. Debated continued after the convention was adopted. Without explicitly mentioning the theoretical ground, the authors claim that a continental state could enjoy straight baselines to its mid-ocean archipelagos, citing five state practices, namely, Ecuador did to Galapagos Islands, Denmark to Faroe Islands, Norway to Svalbard Islands, and Spain to Canary Islands and Portugal Azores Islands. In conclusion, it justifies China’s drawing straight baselines on the Pratas Islands and Senkaku Islands (Diaoyu Dao). All of these arguments had to do with some stretching in its interpretation of UNCLOS. Some of them had to go back to the travaux preparatoire of the Convention, after admitting the fact that the Spratly Islands do not satisfy the conditions provided under Article 47. It would be easy to criticize such an approach that recourse to the preparatory work and the circumstances of its conclusion are only the supplementary means of interpretation, only to be made to confirm the meaning of the provision when the literal interpretation leaves the meaning ambiguous or obscure, or it leads to a result which is manifestly absurd or unreasonable.44 Their arguments do not demonstrate the needs to rely on such a method of interpretation. In addition, it should be noted that the application of the baselines is based on solely on geographical factors. All provisions, namely, Articles 5, 7, and 47, merely provides such a condition. Therefore, claims based on non-geographical elements such as the historical use of the area or the security interest as the basis of the application of Article 7 seems to be groundless.45

8.3.2 A Regime Established Under Customary International Law Beyond UNCLOS The other set of the scholarly writings claim that an independent regime was created under customary international law. Zhang, in his corresponding chapter, takes this position. In order to justify this argument, one has to negate the comprehensiveness and the superiority of UNCLOS as discussed in Sect. 8.2. 43 Ibid. 44 Vienna 45 For

Convention on The Law of Treaties, 23 May 1969, 332 UNTS 1979, Article 32. such a claim, see Li and Jie, supra note 30.

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In June 2018, Chinese Society of International Law (CSIL) published a 500 pages report entitled “The South China Sea Awards: A Critical Study.” It was a product of the examination of the South China Sea Award led by a research group of the Society, from September 2016 to December 2017, where more than 60 experts in the fields of law, international relations, history, geography participated.46 In CSIL’s report, the study group severely criticizes the award as follows. 548. In the Award of 12 July, the Tribunal failed to give proper effect to China’s position on the archipelago as a unit for sovereignty and maritime entitlement and delimitation purposes. It erroneously addressed separately the status of the component features of China’s Nansha Qundao and Zhongsha Qundao, in effect dismembering the two archipelagos and fragmenting the territorial and maritime delimitation dispute between China and the Philippines in the South China Sea. The Tribunal maintained that continental States’ offshore archipelagos (“outlying archipelagos” is more often and more generally used, and will be used in this Study) should not be enclosed within a system of archipelagic or straight baselines pursuant to the Convention, and denied China’s Nansha Qundao as a unit any maritime entitlement. The Tribunal’s approach in effect dismembered China’s Nansha Qundao and Zhongsha Qundao, infringing China’s sovereignty, territorial integrity and maritime rights and entitlements.

In criticizing the logic of the award, the Society claims that the regime of midocean archipelago (or, in the words of the report, “the regime of archipelago as a unit”47 ) as such is “not dealt with in the Convention, but has been well established under customary international law.”48 Its reasoning is summarized in the followings. First, it claims that the regime is well established under general international law before UNCLOS was adopted.49 The convention does not address the regime of mid-ocean archipelago as such, because it was shelved in the course of the Third United Nations Conference on Law of the Sea. However, the report highlights that continental states defended the regime of mid-ocean archipelago during the negotiation. Then it claims that it is well established under customary international law, because there are sufficient state practices concerning the status of outlying archipelagos as units and associated opinio juris.50 In order to acquire the status, the archipelago has to satisfy the one defined in Article 46(b). The report explains that this condition is reflection of the customary international law.51 It claims that the status of Spratly Islands as mid-ocean archipelago has been well established because it meets the criteria required under customary international law. In making its claim, it starts with listing the state practices beginning in the nineteenth century.52 In fact, it refers earlier practices such as Hawaiian Islands 46 Chinese Society of International Law, ‘The South China Sea Arbitration Awards: A Critical Study’ (2018) 17 Chinese Journal of International Law 207, para. 6. 47 See ibid. 48 Ibid. 49 Ibid. 50 Ibid. 51 Ibid. 52 Ibid.

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of the Kingdom of Hawaii, Faroe Islands of Denmark and Galapagos Islands of Ecuador, among others. It argues that the regime was established under customary international law at the time of the First United Nations Conference on Law of the Sea, and Article 4 of the 1958 Convention on the Territorial Sea and Contiguous Zone, which provides for the straight baselines, “covers the idea of archipelago as a unit.53 ” Then, UNCLOS “establishes the regime of archipelagic States on the very foundation stone of archipelago as a unit.54 ” It thus contends that the regime was established before the adoption of UNCLOS. It claims that the issue of continental States’ outlying archipelagos was “shelved” during the negotiation of the Convention, notwithstanding the claims made by the continental states.55 The Society’s view coincides with several other writings that were published before the release of the report. In 2014, Zhang, the author of the corresponding chapter in this book as well as one of the contributors of the Chinese Society of International Law’s study, takes the same standpoint. In his paper of 2014, he had already claimed that the matter was not regulated by the UNCLOS, and the legality of this type of straight baseline cannot be resort to the convention.56 He then argues that such a basis originates from customary international law. He characterizes that straight baselines to offshore archipelagos is sui generis and different from normal straight baselines and archipelagic straight baselines.57 While he acknowledges claims that the United States protested as excessive, he characterizes the country as a persistent objector, which cannot prevent the development of international law. In 2015, Kuen-chen Fu also supports this argument.58 He recognizes “the principle of archipelagic waters” to Paracels and other locales in the South China Sea while delineating sea lanes to “allow foreign vessels and aircrafts to sail through and fly over the internal waters created by its straight territorial sea baselines in the region. 59 ”In 2017, Han Yuxiao, criticizing the South China Sea Arbitration Award claims that China should establish a “mid-ocean archipelago regime” in the region as soon as possible.60 He points out that “the issue concerning mid-ocean archipelagos of continental States is a legal vacuum left by the UNCLOS.”61 It refers to the International 53 Ibid. 54 Ibid. 55 Ibid. 56 Zhang Hua, “The Legality of China’s Application of Straight Baselines to Mid-ocean Archipelagos:New Perspectives from Customary International Law”. 31 Foreign Afffairs Review 129 (2014) (in Chinese). 57 Ibid. 58 Kuen-chen Fu, ‘Freedom of Navigation and the Chinese Straight Baselines in the South China Sea’ in Myron H. Nordquist and others (eds), Freedom of Navigation and Globalization (Brill 2015) 190. 59 Ibid. 60 Han Yuxiao, ‘An Analysis on The Determination of The Nature of Some Islands Individually As Requested by The Philippines In the South China Sea Arbitration’ (2017) 2017 China Oceans Law Review 248. 61 Ibid.

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Court of Justice’s (ICJ) judgment of the Fisheries case of 1951 and Article 4 of the Convention on the Territorial Sea and the Contiguous Zone, as they provide the legal basis for continental States to adopt straight baselines to encircle their mid-ocean archipelagos.62 He asserts UNCLOS did not “deny the continental States of their right to construct an archipelagic regime for their mid-ocean archipelagos.63 ” Han then states that the practice of continental states in enclosing their offshore archipelagos with straight baselines “has become stable state practices64 ” and “generally adopted in the practice of States.65 ” It should be also pointed out that ICJ’s Fisheries case is irrelevant to the present situation since the case only address fringing islands along the coast in its immediate vicinity.66 The methodological problem of these arguments, that they do not necessarily provide sufficient evidence of the existence of a customary international law norm, i.e., general state practices with opinio juris, has been criticized.67 The other thing that should be noted that CSIL’s report uses the terms “general international law” and “customary international law” interchangeably when making their claims.68 Whether, to what extent and on what basis the customary international law has its general character under international law requires an explanation.69 It is a logical flaw that the report does not distinguish the two separate conception. The more fundamental question is whether UNCLOS allows states to create a sui generis norm which departs from the Convention, and whether UNCLOS has the superior status to the pre-UNCLOS norms, if any. Even if one concedes that there existed such a norm, which is highly debatable, the question remains whether the adoption of UNCLOS has trumped the then-existing customary international law. The arguments examined above have not provided sufficiently persuasive answer to this question. It is therefore the position of the present paper that such an existence of the norm has not been proven. In order to claim that a new and independent regime has emerged, one has not only to argue against the comprehensiveness of the treaty but also to demonstrate that a wide-spread and coherent state practices with opinio juris emerged after the adoption of UNCLOS. There are practices of six states available at the public domain, where the state, which does not satisfy the geographical conditions provided in Article 47, drew

62 Ibid. 63 Ibid. 64 Ibid. 65 Ibid. 66 Fisheries

(United Kingdom vs. Norway), Judgment of 18 December 1951, ICJ Reports 1951, 116. 67 J. Ashley Roach, ‘Offshore Archipelagos Enclosed by Straight Baselines: An Excessive Claim?’ (2018)49 Ocean Development & International Law 176, 187. 68 Chinese Society of International Law, supra note 46, para. 6. 69 See for instance, Onuma Yasuaki, International Law in a Transcivilizational World (Cambridge University Press 2017), 105.

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a baseline surrounding a group of islands after 1982.70 The size and the number of the islands are diverse. Therefore, they are not sufficient to create a customary international law norm.

8.4 Concluding Remarks Based on these examinations above, this paper concludes that the concept of midocean archipelago has no place under international law. It should be noted that the claim to support this concept has an implication towards China’s maritime security policy regarding South China Sea in post-arbitration award. China’s White Paper in 2016 claimed that China’s Nanhai Zhudao (the South China Sea Islands) consist of Pratas Islands, Paracel Islands, Spratly Islands, and the Macclesfield Bank area (i.e., Four Shas, namely, Dongsha, Xisha, Nansha, and Zhongsha), which include, among others, islands, reefs, shoals and cays of various numbers and sizes.”71 While the territorial claim is nothing new, since it was provided in its domestic law in 1992 (although there remain territorial disputes over these islands), recent statements are distinct from the previous statement in a sense that the former explicitly covers the maritime area surrounding these maritime features. While the maritime entitlement generated from these islands does not necessarily match with the water surrounded by Nine-Dash Line, it overlaps with each other in a significant manner. The maritime areas generated from an island should be recognized only to the extent that UNCLOS provides. China shall respect the judgment of the award on the legal status of Spratly Islands as one of the state parties of the case. Therefore, the EEZ and the continental shelf shall not be attached to the Spratly Islands, since none of the maritime features satisfies the condition of Article 121(1). One should not oversee the point that the state practices which may support the straight baseline surrounding the mid-ocean archipelago, such as Faroe Islands and Galapagos Islands, are quite different from the Spratlys, in terms of the size, the status of each islands, and the whole size of the maritime area that is covered by the group of islands. The claim made by Chinese scholars that China may be entitled to draw straight baselines around Spratlys Islands lacks those geographical examination in detail. It is therefore highly doubtful that China is entitled to claim a baseline surrounding the outermost features of Spratly Islands.

70 Azores offshore archipelago (Portugal); Falkland Islands (United Kingdom); Turks and Caicos Islands (United Kingdom); Malvinas (Argentina); Hainan Islands (China); Paracel Islands (China); Guadeloupe (France); Loyalty Islands (France); Co Co—Preparis Islands (Myanmar); Senkaku Islands (claimed by China). See Roach, 197. 71 The State Council, “Full Text: China Adheres to the Position of Settling Through Negotiation the Relevant Disputes Between China and the Philippines in the South China Sea,” http://english.gov.cn/ state_council/ministries/2016/07/13/content_281475392503075.htm. The statement naturally used Chinese names for identifying the islands.

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References Anand, R. P. (1979). Mid-ocean archipelagos in international law: Theory and practice. Indian Journal of International Law, 19, 247. Ashley Roach, J. (2018). Offshore archipelagos enclosed by straight baselines: An excessive claim? Ocean Development & International Law, 49, 176. Ashely Roach, J., & Smith, R. W. (2012). Excessive maritime claims. Brill. Baumert, K., & Melchior, B. (2016). The practice of archipelagic states: A study of studies. Ocean Development & International Law, 46, 60. Chinese Society of International Law. (2018). The South China sea arbitration awards: A critical study. Chinese Journal of International Law, 17, 207. Coquia, J. R. (1983). Development of the archipelagic doctrine as a recognized principles of international law. Philippine Law Journal, 58, 13. Crawford, J. (1989). Islands as Sovereign Nations. International & Comparative Law Quarterly, 38, 297. Crawford, J. (2014). Chance, order, change: The course of international law. ALI-Pocket. Fu, K. (2015). Freedom of navigation and the Chinese straight baselines in the South China sea. In M. H. Nordquist & others (Eds.), Freedom of navigation and globalization. Brill. Gao, J. (2004). China and international law of the sea (p. 138). China Ocean Press (in Chinese). Hua, Z. (2014). The legality of China’s application of straight baselines to mid-ocean archipelagos: New perspectives from customary international law. Foreign Affairs Review, 31, 129 (in Chinese). Japan Institute of International Affairs. (Ed.). (2019). The realization of the rule of law in Indo-Pacific region. Retrieved from http://www2.jiia.or.jp/pdf/research/H30_Indo_Pacific/. Kopela, S. (2013). Dependent archipelagos in the law of the sea. Martinus Nijhoff. Lathrop, C. G. (2015). Baselines. In D. Rothwell (Ed.), Oxford handbook of the law of the sea (p. 69). Oxford University Press. Li, J., & Jie, Z. (2010). A preliminary analysis of the application of archipelagic regime and the delimitation of the South China Sea. China Oceans Law Review 2010, 167. Nan, J. (2012). On the outlying archipelagos of continental states. China Oceans Law Review, 2012, 1. Nong, H., Jianwei, L., & Pingping, C. (2013). The concept of archipelagic state and the South China sea: UNCLOS, state practice and implication. China Oceans Law Review, 2013, 209. O’Connell, D. P. (1971). Mid-ocean archipelagos in international law. British Year Book of International Law, 45, 1. Oda, S. (1977). The law of the sea in our time II. Sijthoff. Onuma, Y. (2017). International law in a transcivilizational world. Cambridge University Press. Robin Churchill, R. (2015). The 1982 United Nations Convention on the law of the sea. In D. Rothwell et al. (Eds.), Oxford handbook of the law of the sea (p. 24). Oxford University Press. Yuxiao, H. (2017). An analysis on the determination of the nature of some islands individually as requested by The Philippines in the South China sea arbitration. China Oceans Law Review, 2017, 248.

Part V

Marine Environment

Chapter 9

Chinese Law and Policy on Marine Environmental Protection Jiayi Wang

9.1 Introduction As the ocean covers 71% of the Earth’s surface, and constitutes more than 90% of the Earth’s biosphere,1 the health of ocean ecosystems is of great importance for the Earth’s life support system. However, the world oceans continue to deteriorate due to the combined effects of climate change and human activities, such as vessel and land-based pollution, exploitation of mineral resources, overfishing and habitat 1 Secretariat

of the Convention on Biological Diversity (2012), Marine Biodiversity: One Ocean, Many Worlds of Life, Montreal: 5, available at https://www.cbd.int/idb/doc/2012/booklet/idb-2012booklet-en.pdf. 2 World Wildlife Fund’s report shows that marine populations have declined by 49% between 1970 and 2012, see World Wildlife Fund Report (2015), Living Blue Planet Report: Species, habitats and human well-being,Switzerland: 7, available at https://c402277.ssl.cf1.rackcdn.com/publications/ 817/files/original/Living_Blue_Planet_Report_2015_Final_LR.pdf?1442242821, last accessed 3 January 2020. 3 Florida Atlantic University, ‘Thirty years of unique data reveal what’s really killing coral reefs’, 15 July 2020,available at https://phys.org/news/2019-07-years-unique-reveal-coral-reefs.html, last accessed 3 January 2020. 4 Food and Agriculture Organization of the United Nations, The State of World Fisheries and Aquaculture 2018—Meeting the Sustainable Development Goals, FAO, Rome, Italy, 2018, pp. 6–7. 5 See Jenna R. Jambeck, et al. Plastic Waste Inputs from Land into the Ocean, Science, 347 (6223), 2015, pp. 768–771. 6 James Harrison, Saving the Ocean Through Law: The International Legal Framework for the Protection of Marine Environment, Oxford: Oxford University Press, 2017, p. 19. This chapter is part of a research project funded by China’s National Social Sciences Foundation (18VHQ002). J. Wang (B) Huzhou University, Huzhou, China e-mail: [email protected] © Kobe University 2021 D. Tamada and K. Zou (eds.), Implementation of the United Nations Convention on the Law of the Sea, Kobe University Monograph Series in Social Science Research, https://doi.org/10.1007/978-981-33-6954-2_9

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destruction. Many observations show that the marine environment is under serious threat: there is a substantial loss in marine diversity;2 the world’s coral reefs are dying at alarming rate;3 31.5% of fish stocks are at a biologically unsustainable level4 and the problem of marine litter has steadily grown worse. It is anticipated that there will be more plastic litter than fish by weight by 2025.5 Marine environmental degradation is a major current global problem of common concern. Since the 1972 Stockholm Conference on the Human Environment first put forward the legal protection of the marine environment at the global level,6 the international community has made progressive development of legal framework for the marine environment. The growing concern for the condition of the oceans has been identified as one of the most remarkable developments in the field of international law in the latter half of the twentieth century.7 In addition to the 1982 United nations Convention on the Law of the Sea (LOSC) which provides the general rules on State’s obligations of marine protection,8 a number of treaties were concluded to regulate specific human activities with the aim to prevent pollution and conserve marine resources, such as the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention),9 International Convention for the Prevention of Pollution from Ships (MARPOL 73/78),10 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 Fish Stock Agreement)11 and the International Convention for the Regulation of Whaling.12 Be aware of the inadequacy of regulatory framework in areas beyond national jurisdiction, a new international legal binging instrument—the agreement under the LOSC on the conservation and sustainable use of marine biodiversity beyond national jurisdiction is now under negotiation.13

7 Howard

S. Schiffman, International Law and the Protection of the Marine Environment, available at https://www.eolss.net/Sample-Chapters/C14/E1-36-02-03.pdf, last accessed 1 June 2020. 8 United Nations Convention on the Law of the Sea, 10 December 1982, 1833U.N.T.S. 396. 9 London Convention was ratified in 1972, and it provides provisions to regulate ocean dumping. 10 The International Convention for the Prevention of Pollution by Ships 1973 as modified by the Protocol of 1978, MARPOL 73/78 aims to minimize both accidental and routine operational pollution from ships. 11 The 1995 Fish Stock Agreement was ratified in 1995 and entry into force in 2001. As the implementation agreement of the LOSC, it was concluded with the aim to address the shortcomings of the LOSC in the field of regulating fisheries activities in the high sea. See Tore Henriksen, Geir HØnneland and Are Sydnes, Law and Politics in Ocean Governance: The UN Fish Stocks Agreement and Regional Fisheries Management Regime,Leiden: Martinus Nijhoff Publishers, 2006, p. 14. 12 The International Convention for the Regulation of Whaling was signed in 1946 and it provides a legally binding schedule for conservation of whale stocks by setting out catch limits for commercial and aboriginal subsistence whaling. The text is available at https://iwc.int/convention, last accessed 18 January 2020. 13 United Nations Assembly adopted Resolution 69/292 in 2015 and decided to develop an international legal binding instrument under the LOSC on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction. The new instrument will address the four-package

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Despite the significant law-making progress, gaps do remain. The effectiveness of the legal framework depends upon the positive response of all relevant states to cooperate and the capacity of individual states to implement their own policy and laws on marine environmental protection. China has made efforts to improve the condition of marine environment. This chapter aims to provide an overview of policy and regulatory framework of China on the issue of marine environmental protection. The currently institutional developments and the remaining challenges China faces will also be discussed.

9.2 Marine Geography and Environment Status China, with a total of 9.6 million square, is the third largest country in the world, and it is also a costal state with very long coastlines.14 China’s coastlines run 32,000 km, including the coastlines of 65,000 islands.15 The coastlines of mainland are more than 18,000 km from the Yalu River in Liaoning Province in the north to the Beilung River in the Guangxi Autonomous Region in the south.16 The seas adjacent to the mainland include one internal sea: the Bohai Sea, and three semi-enclosed seas: East China Sea, Yellow Sea and South China Sea. The Bohai Sea is located at the north part of the China seas, with an area of 78,000 km.17 It lies between the Shandong and Liaodong peninsulas and is linked to the Yellow Sea by the Bohai Strait, which is 45 nautical miles wide.18 The Bohai Sea is not only an internal sea of China, but also a shallow sea, with an average water depth of 18 m and the maximum depth is 70 m.19 The Bohai Sea has rich reserves of marine living and non-living resources, it has been identified as an important fishing ground of China and contains a large amount of oil fields.20 The coastal areas of Bohai Sea include Hebei, Liaoning, Tianjin and Shandong Province and

issues, together as a whole, including marine genetic resources, area-based management tools, environment assessments and capacity building and the transfer of marine technology. Currently, the negotiation of the new agreement has entered a critical stage towards a draft text based on the adopted element. 14 Keyuan Zou, China’s Marine Legal System and the Law of the Sea, Brill, 2005, p. 4. 15 Y. Wang, J. Su, R. Liu (editors), Oceanography of China. Beijing: Science Press, 2002, p. 5. 16 Ibid. 17 J.Y. Liu, Status of Marine Biodiversity of the China Seas, 8 January 2013, available at https://jou rnals.plos.org/plosone/article?id=10.1371/journal.pone.0050719, last accessed 20 January 2020. 18 See supra note 14. 19 Ibid. 20 C. W. Bian, W. S. Jang, T. Pohlmann, J. Sündermann, Hydrography-physical description of the Bohai Sea,Journal of Coastal Research: Special Issue 74—Environmental Processes and the Natural and Anthropogenic Forcing in the Bohai Sea, Eastern Asia, 2016, p. 1.

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all of them are of dense population and economic activities.21 The use of Bohai Sea attributes to the economic development of the coastal provinces, meanwhile it also caused a significant deterioration of the marine ecological system of Bohai Sea. It has been revealed that the tidal amplitudes of Bohai Sea has been experienced dramatically changes over the past 35 years, with M2 amplitudes changing up to 20 cm in some parts22 and there is an significant change in the environmental factors of ichthyoplankton spawning, nursery and feeding ground, which caused the fish habitat fragmentation in Bohai Sea, due to the marine reclamation.23 The Yellow Sea is situated to the north of the East China Sea, and there are no strict boundaries between Bohai Sea and Yellow Sea. The Yellow Sea is a continental shallow sea with an area of 380,000 km2 .24 It is connected to the Sea of Japan by the Korea Strait in the southeast and borders on the east by the Korea Peninsula. The East China Sea is a marginal sea of the north Pacific which has both shallow and deep-water features.25 It covers an area about 770,000 km2 with an average depth of 370 m and a maximum depth of 2719 m.26 The dynamic interactions among water systems lead to a high biological diversity and productivity in the East China Sea.27 The South China Sea is located at Southeast Asia, with an area of 648,000 square nautical miles and an average water depth of 1212 m.28 It connects the East China Sea via the Taiwan Strait and surrounded by six States: China, Philippines, Vietnam, Malaysia, Brunei, and Indonesia. Due to the complicated geographic conditions, disputes over overlapping claims of sovereignty and resources utilizations arise among these countries. There are abundant natural resources in the South China Sea. It has been recognized as the most diverse and extensive shallow-water marine

21 X.S. Ding, X.J. Shan, Y.L. Chen, M. Lia, J.J. Lia, X.S. Jin, Variations in fish habitat fragmentation caused by marine reclamation activities in the Bohai coastal region, Ocean and Coastal Management, Vol. 184, 2020, p. 4. 22 H. E. Pelling, K. Uehara, J. A. M. Green, The impact of rapid coastline changes and sea level rise on the tides in the Bohai Sea, China, Journal of Geophysical Research: Ocean, Vol. 118, 2013, p. 1. 23 See supra note 21, pp. 1–9. 24 Mark J. Valencia, The Yellow Sea: Transnational Marine Resource Management Issues, Marine Policy, Vol. 12,1988, 383–385. 25 D.J. Li and D. Daler, Ocean Pollution from Land-based Sources: East China Sea, China, Ambio, Vol. 33 No. 1–2,Feb. 2004, p. 109. 26 See supra note 14. 27 There are a number of rivers pour into the East China Sea, including the largest river in China-the Yangtze River, consequently, the nutrient enriched freshwater was input. In addition, the warm and oligotrophic Kuroshio Current and Taiwan Strait Current also influence the water interactions. See Nianzhi Jiao, Yao Zhang, Yonghui Zeng et al.,Ecological anomalies in the East China Sea: Impacts of the Three Gorges Dam? Water Research, Vol. 41, 2007,p. 1287. 28 J.R.V. Prescott, The Maritime Political Boundaries of the World, Methuen London, 1985, p. 209.

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region in the world29 and provides one third of the world’s biodiversity.30 In addition to marine living resources, mineral reserves including oil and gas have enormous potential which makes the South China Sea strategic and political interests for China. It is estimated that there are about 11 billion barrels of oil and 190 trillion 190 trillion cubic feet of natural gas in the South China Sea.31 In the Spratly area, there are eight sedimentary basins with an area of 410,000 and 260,000 km2 are within China’s unilaterally declared U-shaped line.32 According to the report revealed by the China National Offshore Oil Corporation (CNOOC) in 2011, an average of 193,000 barrels of oil was produced per day by CNOOC.33 With the increase of human population and exploitation activities, the South China sea is now under the strong pressure of resources depletion. According to the recent studies, some waters of South China Sea have less than one-tenth of fish stocks they had six decades ago34 and 70% of the coral reefs are heavily depleted.35 China has a long history of using the ocean and the marine economy plays a vital role in the development of national economy. The total value of China’s marine economy reached 8.3 trillion yuan in 2018 and accounts for 9.3% of the nation’s gross domestic product.36 The globe fishing and ocean farming are dominated by China. China is now the world’s top fish producer and exporter, in 2017, the total value of fishery output was 1231.385 billion yuan.37 However, the explosive marine economic growth also left a series of marine environment problems. According to the Bulletin of the Marine Ecology and Environment Status of China in 2018, approximately 33,270 km2 of China’s sea area failed to meet the Seawater Quality Standard Grade

29 The South China Sea is in the central ecosystem of the FAO’s Pacific West Central Region, the most diverse and extensive shallow-water marine region in the world. See D. Rosenberg, ‘Fisheries Management in the South China Sea’, in S. Bateman and R. Emmers (eds.), Security and International Politics in the South China Sea: Towards a Cooperative Management Regime (Routledge Abingdon 2009), p. 62. 30 X. Vagg, ‘Resources in the South China Sea’, 4 December 2012, available at https://www.americ ansecurityproject.org/resources-in-the-south-china-sea/, last accessed 20 January 2020. 31 U.S Energy Information Administration, ‘South China Sea’, 7 February 2013, the report is available at https://www.eia.gov/international/analysis/regions-of-interest/South_China_Sea, last accessed 20 January 2020. 32 For details of this line and its legal implications, see Keyuan Zou, ‘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’(1999) 14 International Journal of Marine and Coastal Law 27. 33 See supra note 31. 34 Rachael Bale, One of the World’s Biggest Fisheries Is on the Verge of Collapse: Major disputes in the South China Sea are putting critical habitat—and the food supply of millions—at risk, available at https://www.nationalgeographic.com/news/2016/08/wildlife-south-china-sea-overfishing-threat ens-collapse/. 35 See supra note 30. 36 Liu Meng, Release of China marine economic development report 2019, 17 October 2019, available at https://www.yidaiyilu.gov.cn/xwzx/gnxw/106639.htm, last accessed 20 January 2020. 37 China Fisheries Yearbook 2018 (in Chinese), Beijing: China Agriculture Press, 2018, p. 1.

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Table 9.1 Total sea areas with water quality below seawater quality standard I in jurisdictional seas of China in 2018 (km2 ) Sea area

Grade II

Grade III

Bohai sea

10,830

4470

2930

3330

21,560

Yellow sea

10,350

6890

6870

1980

26,090

Ease China sea

11,390

6480

4380

22,110

44,360

South China sea Jurisdictional seas of China

Grade IV

Below grade IV

Total

5500

4480

1950

5850

17,780

38,070

22,320

16,130

33,270

109,790

Source The Bulletin of the Marine Ecology and Environment Status of China in 2018, p. 3

IV38 and the East China Sea showed the highest amount of sea water worsen than Grade IV (see Table 9.1). There are only 23.7% of the typical marine ecosystems in the healthy status.39 The total volume of wastes dumping at sea reached 200.67 million m3 and the average density of microplastics in surface waters was 0.42 items/m3 .40 Among the four sea areas, the environmental problems in Bohai Sea are particularly prominent.41 In general, China’s marine environment is still under various threats. Although in recent years, the trend of marine environment deterioration has been controlled to some extent, and the overall pollution trend has slowed down, the problems of regional marine environment deterioration has not been effectively contained.42 The problems of ecological environment in Bohai Sea are particularly prominent.43 The difficulties of China’s marine governance are shaped by both geographic features and economic developments. One the one hand, all the seas described above, except for the Bohai Sea which is part of China’s internal waters, are semi-enclosed seas. The effective conservation of semi-enclosed seas requires the efforts and cooperation of all relative coastal countries that incorporate the entire ecosystem. Consequently, regional cooperation is inevitable in China’s marine management. On the other hand, as discussed above, the current rapid development of marine economy puts more 38 Water quality classification: Grade I: Pristine water sources (e.g. river headwaters and protected natural catchment areas); Grade II: Class A water source protection areas for centralized drinking supply; Grade III: Class B water source protection areas for drinking supply and recreation; Grade IV: Industrial water supply and recreational water with no direct human contact; Grade V: Limited agricultural water supply; Grade VI: Essentially useless. 39 The monitored typical ecosystems include estuary, bay, wetland, coral reef, mangrove and seagrass bed. The rate for sub-healthy and unhealthy are 71.4% and 4.8% respectively. See the Bulletin of the Marine Ecology and Environment Status of China in 2018, p. 23, available at http://english. mee.gov.cn/Resources/Reports/bomeaesoc/, last accessed 20 January 2020. 40 Ibid. 41 Y.J. Ma and H.W. He, An Introduction to Marine Environmental Protection Law of China (in Chinese), Science Publisher, 2018, p. 13. 42 Jiangen Zhu, The Legal System of China’s Marine Environment Protection, China University of Political Science and Law Publisher, 2016, p. 3. 43 See supra note 41.

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pressures on the marine environment. In addition, the negative impact or effect of climate change will impose new challenges on marine environmental protection. To address the issue of marine environmental deterioration, China has developed a strong national regulatory framework to ensure the conservation of marine environment and sustainable management of marine activities.

9.3 Policy Framework for Marine Environmental Protection China’s ocean policy can be traced back to the late 1970s. In 1978 China began to implement its economic reform and open-door policy, after that the Chinese government started to consider making ocean policy.44 The developments of China’s ocean policy can be divided into four stage. The first period is the initial stage, which is from 1982 to 1995.45 In this period, China’s ocean policy is influenced by the economic development and the Third United Nations Conference on the Law of the Sea (UNCLOS III) (1973–1982). The LOSC characterized as the constitution of the ocean, was adopted at the UNCLOS III in 1982 and came into force in 1994.46 The LOSC has provided a legal framework to govern all aspects of ocean activities and profoundly extended the rights and jurisdiction of coastal states. In order to strive for benefits in this new era of international ocean reform, China’s ocean policy reflects one key factor that to protect national interests and to comply with the objectives of the LOSC. This can be reflected by the formulation of the Marine Environmental Protection Law of the People’s Republic of China (MEPL)47 and the Law of the PRC on Territorial Sea and the Contiguous Zone of 1992.48 In addition, with the implementation of economic reform, the development of economy was given priority by Chinese government in this period. The emphasis on marine economic development and implementation of the market-oriented economy

44 Keyuan Zou, China’s Ocean Policymaking: Practice and Lessons, Coastal Management, Vol. 40, 2012, p. 146. 45 Yang Xu, Overview of China’s Marine Environmental Governance Policies: An Empirical Study Based on 161 Policy Texts from 1982 to 2015 (in Chinese), China Population, Resources and Environment, Vol. 28, No. 1, 2018,p. 168. 46 See Codification Division Publications, ‘Third United Nations Conference on the Law of the Sea’, available at https://legal.un.org/diplomaticconferences/1973_los/, last accessed 28 January 2020. 47 Marine Environment Protection Law of the People’s Republic of China was promulgated on 23 August 1982, full text is available at english.mofcom.gov.cn/aarticle/lawsdata/chineselaw/200211/20021100050463.html, last accessed 3 June 2020. 48 The Law of the PRC on Territorial Sea and the Contiguous Zone The Law of the People’s Republic of China on the Territorial Sea and the Contiguous Zone, adopted at the 24th Meeting of the Standing Committee of the Seventh National People’s Congress on February 25, 1992, full text is available at http://www.asianlii.org/cn/legis/cen/laws/lotprocottsatcz739/, last accessed 3 June 2020.

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had thus been another key factor of ocean policy.49 In 1991, China held its first National Ocean Working Conference in Beijing, which adopted the Ocean Policy and Working Outlines of China in the 1990s.50 It was proposed in this document that the priority should lay on the use of the oceans and the development of marine economy and the short term goal is to achieve the marine output value accounting for 3% of the GDP in 2000.51 After that the Marine Technology Policy was issued by the National Commission on Science and Technology, which aims at strengthening marine science and technology through the guidance of national policies and adopting new technologies for marine resources utilization and marine environment protection.52 In 1995, another important document—the National Marine Development Plan—was published, which put forward the policy to implement the integrated development of land and sea, improve the comprehensive benefits of marine development and promote the synchronous development of exploitation and protection.53 Although the protection of marine environment was an integrated part of the overall ocean policy,54 in this initial stage, the priority was given to the development of ocean economy and the utilization of marine resources. The second stage is from 1996 to 2005. In this period, the primary emphasis of marine affairs had still been on the rational development and utilization of marine resources.55 However, the ocean sustainable development was incorporated and put much emphasis in ocean policy. The key characteristic of ocean policy in this period is to lay stress on the enforcement of marine environment policy to make it as a useful tool for environment protection.56 After the 1992 United Nations Conference on Environment and Development, the term ‘sustainable development’ gradually becomes an international consensus and a key concept of global environmental policy. China’s ocean strategy was influenced by this international trend, and two critical documents were published to ensure the ocean sustainable development: China’s Ocean Agenda

49 See

supra note 44, p. 147. Wang (ed), The Yearbook of China’s Reform and Opening up in the New Era (1991) (in Chinese),Beijing: Chinese Democratic Legal System Press, 2014, p. 21. 51 Ibid. 52 Guojun Li, The Report of Developments of China’s Marine Science and Technology (in Chinese) in Ninger Song and Feng Cui (eds), Report on the Development of Ocean Society of China (2015), Beijing: Social Science Literature Press, 2015, p. 86. 53 ‘China’s Marine Industry Reform and Opening up for Forty Years’, 20 April 2018, available at http://ocean.china.com.cn/2018-04/20/content_50918286.htm, last accessed 20 January 2020. 54 The Ocean Policy and Working Outlines of China in the 1990s requires that the government should formulate plan for marine nature reserves, increase the number of marine nature reserves and strengthen the protection of coral reefs, mangroves and other marine ecosystems. See Jiguang Liu and Qing Mei, Shout for the Mangroves, Green Times, 31 March 1998, available at www.greent imes.com/greentimepaper/html/1998-03/31/content_195981.htm, last accessed 20 January 2020. 55 Haizhu Zhang, Marine Policy Changes in the Government Work Reports: A Content Analysis of the State Council Work Reports from 1954 to 2015 (in Chinese), Journal of Shanghai Administration Institute, 2016, Vol. 3,p. 108. 56 See supra note 45. 50 Zhenchuan

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21 issued by the State Oceanic Administration (SOA) in 199657 and the White Paper on the Development of China’s Marine Programs issued by the Information Office of the State Council in 1998.58 The two documents provide a general policy framework for ocean sustainable development. The basic elements include to effectively safeguard the national marine rights and interests, protect the marine environment, conserve marine resources, enhance international cooperation and establish an integrated ocean management. Regarding the protection of marine environment, China’s Ocean Agenda 21 clearly sets forth the overall goal, which is to ensure a good ecological environmental foundation for sustainable development and utilization of the ocean and by 2020, the trends of ecological and environmental deterioration and the pollution of near-shore areas would have been basically reversed, and the marine environmental quality and economic construction would have been further coordinated.59 The White Paper on the Development of China’s Marine Programs sets out that China carries out the principle of putting prevention first and combining prevention with control on marine pollution management.60 The third stage is from 2006 to 2011. With these years, China’s marine policy has been adjusted to pay more attention to marine environmental conservation. With almost three decades of rapid industrialization, China has been transformed from one of the poorest nations to the world’s second largest economy. However, the economic growth and industrialization have provoked enormous environmental issues. A growing number of potential marine environmental threats have appeared and become the primary factors for consideration for policymakers. During this period, the focus of marine policy tends to be on the marine environmental protection, and the intensity of policy enforcement is significantly higher than that of marine resources development.61 The leading governmental document issued in this period is the Program on the Development of National Marine Affairs, which was approved by the State Council in February 2008.62 It is the first comprehensive plan on marine affairs. The overall goal of this Program is to build up a strong maritime country by coordinating and comprehensively developing national marine affairs. The basic policy of marine exploitation is adjusted to ‘develop in protection and protect in development’, and it requires the development of marine recycle economy and the improvement of the quality of marine economic development.63 As to the marine environmental protection, the general principle is ‘integrated management of land and sea, coordinated management of sea and river’. The primary task is to 57 The text of the China Ocean Agenda 21 (in Chinese) is available at www.npc.gov.cn/zgrdw/huiyi/

lfzt/hdbhf/2009-10/31/content_1525058.htm, last accessed 20 January 2020. text of the White Paper on the Development of China’s Marine Programs (in Chinese) is available at www.law-lib.com/fzdt/newshtml/24/20050709190502.htm, last accessed 20 January 2020. 59 China’s Ocean Agenda 21, Strategic Goal 1.11. 60 See the White Paper on the Development of China’s Marine Programs, Chap. 3. 61 See supra note 53. 62 The full text of the Program on the Development of National Marine Affairs is available at www. huaxia.com/hxhy/hykf/2011/08/2523974.html, last accessed 3 June 2020. 63 See the Program on the Development of National Marine Affairs, Chap. 2. 58 The

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conserve marine biodiversity and protect the important marine habitats and landscapes. Priority was attached, for example, to the restoration of mangroves, coral reefs and coastal wetlands.64 The specific goal until 2020 was that the total pollutants into the sea will be reduced 10% and the percentage of the area of marine protected areas out of the marine areas under China’s jurisdiction will be reached 5%.65 In order to better implement the policies of marine environmental protection stipulated in the Program, the Circular on Essential Points for Marine Environmental Protection was issued by SOA in 2010, which defines the divided responsibility of ocean management authorities and requires the relevant departments at all levels to take their own responsibility and to establish an effective monitoring system.66 It should be noted that within this stage, a large number of governmental documents on marine environmental risk assessment and contingency plans were issued, which implies that China’s marine environmental protection policy pays more attention to prevent the pollution in advance. China’s latest ocean policy has been developed since 2012. The 18th National Congress of the Communist Party (CPC), held in 2012, was a defining moment in China’s maritime history, in which, it was put forth that China will ‘improve its capacity for exploitation of marine resources, develop the marine economy, protect marine environment, resolutely safeguard China’s rights and interests, and build China into a strong maritime power.’67 Since then, ‘building China into a strong maritime power’ has become the core of China’s ocean policy. A maritime power means a country with ‘a great comprehensive power to develop, utilize, protect, manage and control the ocean’68 which requires China’s ocean policy towards a more holistic and unified way. Thus, the policy markers began to pay attention to the marine strategic plan. After the strategy of a maritime power was put forward, a series of marine development strategies have been established, such as the strategy of Maritime Silk Road,69 the strategy of land and sea coordinated and the integrated marine management. The relationship between strategy and the policy is that

64 See

the Program on the Development of National Marine Affairs, Chap. 4.

65 Ibid. 66 See

supra note 44, p. 148.

67 ‘Full text of Hu Jintao’s Report at the 18th Party Congress,’ Xinhua, 17 November 2012, available

at english.qstheory.cn/18cpcnc/201212/t20121205_198520.htm, last accessed 25 January 2020. 68 Xu Sheng, ‘Follow the Path of Maritime Power with Chinese Characteristics.’ Qiushi online November 2013,available at http://www.qstheory.cn/, last accessed 25 January 2020. 69 The strategy of twenty-first Century Maritime Silk Road was proposed in October 2013, which aims to connect China with trading hubs around the world by port development in South-East Asia, around the Indian Ocean and in the eastern Mediterranean region. For more detailed information of twenty-first Century Maritime Silk Road, see Frans-Paul van der Putten and Minke Meijnders, China, Europe and the Maritime Silk Road, Clingendael report, March 2015, available at https://www.clingendael.org/sites/default/files/pdfs/China_Maritime_Silk_Road.pdf, last accessed 25 January 2020.

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‘ocean policy is a code of behavior formulated for the national strategy, development plan and external relations related to the oceans.’70 Influenced by the strategies discussed above, since 2012 China’s ocean policy presents a key factor that is both the marine resources development and the marine environment protection have received sustained attention. According to the requirements of the 18th National Congress of the CPC, in 2012, the 12th Five Year Plan for the Development of National Marine Industry71 and the Marine Functional Zoning (2011–2020)72 were issued. The two documents provide a general policy framework for the scientific and rational utilization of marine resources and induce the way of utilization of marine resources transformed to conservation The Marine Functional Zoning put forwards the guiding principle of use of the seas, which is ‘use of the sea by planning, intensive and ecological use of the sea, scientific and technological use of the sea and use of the sea by law’.73 It also sets long-term goal that by 2020, the total areas of marine protect areas will exceed 5% of the sea area under China’s national jurisdiction and of which over 11% in the coastal marine area, the rate of natural coastline retention will not be