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Editor’s Introduction

  • Lori Fisler Damrosch and Bernard H. Oxman

Extract

The disagreements among states bordering the South China Sea pose extraordinarily complex legal issues. Sovereignty over small islands that lie at some distance from the continental and insular coasts that surround the sea is contested. So are the maritime entitlements generated by these features. Notably, rocks that cannot sustain human habitation or economic life of their own generate no entitlement to an exclusive economic zone (EEZ) and continental shelf beyond a twelve-mile territorial sea, which may be the case for many of the disputed islands. Yet another series of questions relates to the delimitation of overlapping maritime entitlements, including the relative effect to be accorded entitlements generated by these small islands vis-à-vis those generated by the continental and insular coasts that surround the South China Sea.

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References

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1 As “a naturally formed area of land, surrounded by water, which is above water at high tide,” such a rock would come within the definition of an island and accordingly would generate a territorial sea extending up to twelve nautical miles; but “[r]ocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.” UN Convention on the Law of the Sea, opened for signature Dec. 10, 1982, 1833 UNTS 397, Art. 121. The convention is available at http://www.un.org/Depts/los/index.htm.

2 See id., Arts. 15, 74, 83. The effect of certain small islands on delimitation of overlapping maritime entitlements between states with opposite or adjacent coasts was recently addressed by the International Court of Justice in Maritime Delimitation in the Black Sea (Rom. v. Ukr.), 2009 ICJ Rep. 61 (Feb. 3) (reported by Lathrop, Coalter at 103 AJIL 543 (2009)), and Territorial and Maritime Dispute (Nicar. v. Colom.), 2012 ICJ Rep. 1 (Nov. 19), and by the International Tribunal for the Law of the Sea in Delimitation of the Maritime Boundary Between Bangladesh and Myanmar in the Bay of Bengal (Bangl./Myan.), Itlos Case No. 16 (Mar. 24, 2012) (reported by Anderson, D. H. at 106 AJIL 817 (2012)).

3 Clive Schofield is Professor and Director of Research, Australian National Centre for Ocean Resources and Security (ANCORS), University of Wollongong, Australia. He gratefully acknowledges the support afforded to him by the Australian Research Council through the award of a Future Fellowship. Andi Arsana is Lecturer, Department of Geodetic Engineering, Gadjah Mada University, Indonesia, and a doctoral candidate at ANCORS.

4 Note Verbale CML/17/2009 from the Permanent Mission of the People’s Republic of China to the UN Secretary-General (May 7, 2009), at http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/chn_2009re_mys_vnm_e.pdf. This request is discussed in all three essays of the Agora.

Editor’s Introduction

  • Lori Fisler Damrosch and Bernard H. Oxman

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