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Delimitation of the Continental Shelf in the East China Sea

Published online by Cambridge University Press:  21 May 2009

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China is one of the eighteen privileged states whose continental shelf extends more than 200 miles beyond the base line from which the territorial sea is measured. According to the Law of the Sea Convention, states have a right to a continental shelf with its boundary positioned at a maximum width of 350 nautical miles, measured from the base line. It is in China's interests to safeguard its continental shelf rights because the report drawn up in 1968 by the UN Economic Commission for Asia and the Far East revealed that there were probably extremely rich resources of oil beneath the continental shelf of the East China Sea and the Yellow Sea. However, China is not the only state in that area to lay claim to the continental shelf of the East China Sea. Taiwan, South and North Korea and Japan have also made claims on part of this area. The claims of the various states overlap and the delimitation of the area is therefore necessary.

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Copyright © T.M.C. Asser Press 1985

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References

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37. Declaration by Zhuang Yan in the Sea Bed Committee on 20 March 1973, A/AC.138/SC.II/S.R. 55, pp. 81–86. Also in the 13 Peking Review (1973) pp. 9–12. The quotation is on p. 11.

38. A/AC. 138/SC. II/L.34.

39. Mei ri fandongpai yinmou lüeduo zhong chao haidi ziyuan (Reactionary American and Japanese cliques conspire to plunder the natural resources of the sea bed of China and Korea): Renmin Ribao (People's Daily), (4 December 1970) p. 5.

40. In Renmin Ribao (12 December 1972) p. 6.

41. Declaration of the Chinese delegate on 8 September 1980 during the ninth session of the third Law of the Sea Conference. A/Conf. 62/S.R. 135, p. 17.

42. Declaration by Han Xu. A/Conf.62/P.V. 191, p. 12.

43. The exact figures for 1982 are: Middle East: 70.4%; Asia: 23.7%; and other parts of the world: 5.9%. In 1973 this ratio was very different: Middle East: 85.2%; Asia: 13.2%; and other parts of the world: 1.6%. See Energy Policies and Programmes of I.E.A. Countries”, IEA 1983 Review (Paris 1984)Google Scholar.

44. This ratio has now changed. Of the 11 million tonnes caught in 1983, only 2 million tonnes were caught within the 200 mile zone of other states. See Gregory, G., “Japan and the Law of the Sea: Uncertainties of the New Order”, 30 Australian Outlook (1976) p. 49CrossRefGoogle Scholar, and the Far Eastern Economic Review (2 August 1984) p. 36.

45. Respectively Acts no. 31 and no. 32. Included in the UN publication National Legislation and Treaties Relating to the Law of the Sea, St./Leg./Ser.B/19, pp. 56–62 and pp. 215–228.

46. See “Japan: Draft Articles on the Continental Shelf”, A/Conf.62/C./L.31/Rev.31 of 16 August 1974 and the declaration of the Japanese delegate at the seventh session. A/Conf.62/S.R. 103 in Official Records Vol. 10, pp. 67–68.

47. “Mining Law no. 289”, dating from 1950. Discussed in Oda, S., “The Delimitation of the Continental Shelf in South East Asia and the Far East”, 1 Ocean Management (1973) p. 344CrossRefGoogle Scholar.

48. Declaration of the Japanese delegate, Nakagawa, during the eleventh session in New York in April 1982. A/Conf.62/S.R. 169, pp. 11–13.

49. Fairbridge, R.W., ed., The Encyclopedia of Oceanography (New York 1966) p. 239Google Scholar.

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51. The Korean legislation concerned the “Submarine Mineral Resources Development Law” (Code. no. 2184) of 1 January 1970 and the Presidential Decree no. 5020 of 30 May 1970. For the English text of the act, see The Law for the Development Submarine Mineral Resources” (Ministry of Commerce-Industry, Seoul 1971)Google Scholar. The Tarwanese act was the “Act on the Exploration and Exploitation of Oil in the Sea Area”, passed on 25 August 1970 and entered into force on 3 September 1970. The act is included in the Zhonghua Minguo Xianxing Fagui Leibian, Liushi Nian Shubian (Collection of current laws and decrees of the Republic of China) (1971) p. 928.

The Japanese blocks were adopted in accordance with the “Mining Law” of 1950, see supra n. 47.

52. The contracts were concluded with Amoco, Gulf, Oceanic Exploration and Clinton respectively on 11 July, 12 July, 13 August and 24 September 1970. See Park, C.H., “Oil under Troubled Waters: The Northeast Asia Sea-Bed Controversy”, 14 Harvard International Law Journal (1973) p. 224Google Scholar.

53. See supra, n. 51.

54. 10 International Legal Materials (1971) p. 452CrossRefGoogle Scholar.

55. Okuhara, T., “The Territorial Sovereignty over the Senkaku Islands and Problems of the surrounding Continental Shelf”, 15 JapaneseAnnual of International Law (1971) p. 103Google Scholar.

56. On 10 September 1970 before the Committee for Foreign Affairs of the Japanese House of Representatives, on 12 September 1970 for the “Special Committee on Okinawa and the Northern Territories” of the Japanese House of Representatives, and on 11 October 1970 in a speech on Okinawa. See Japanese Practise of International Law: Territory – Legal Status of Senkaku Islands”, 19 Japanese Annual of International Law (1975) pp. 117119 and p. 123Google Scholar.

57. Park, , loc.cit., n. 50, p. 40Google Scholar.

58. See Li, V.H., “The Tiao-yü Tai Dispute”, XI Stanford Journal of International Studies, (1975) p. 146Google Scholar. The incident is also mentioned in supra n. 56, p. 118.

59. Park, , loc.cit., n. 50, pp. 2022Google Scholar.

60. In the article in Renmin Ribao, ibid in n. 39.

61. Park, , loc.cit., n. 50, pp. 2326Google Scholar.

62. See United Nations Treaty Series, Vol. 841, p. 249 for the text of this treaty.

63. See United Nations Treaty Series, Vol. 136, p. 45 for the text of this treaty.

64. “United States State Department Press Release” of 10 September 1970. For a discussion of the problems regarding the Okinawa Reversion Treaty, see Park, , loc.cit., n. 50, pp. 4042Google Scholar, Li, , loc.cit., n. 58, pp. 150151Google Scholar, and Cheng, T., “The Sino-Japanese Dispute over the Tiao-yü Tai (Senkaku Islands) and the Law of Territorial Acquisition”, 14:2Virginia Journal of International Law (1974) p. 221Google Scholar.

65. During hearings before the Committee on Foreign Relations of the American Senate of 27–29 October 1970. (In Park, , loc.cit., n. 50, p. 42 and p. 61.)Google Scholar

66. See A/A.C./S.R.72 of 3 March 1972 and A/A.C/S.R. 73 of 10 March 1972 respectively on pp. 21–22 and pp. 33–34.

67. The only exception to this is a rather bizarre incident which took place in April 1978. In that month a Chinese fishing fleet of more that one hundred ships sailed into the territorial waters of the Senkaku Islands, bearing banners and shouting slogans that the islands were Chinese. China later declared that this protest had not been set up by the Government. If it had been set up by the Government, it was possibly intended to express the Chinese dissatisfaction with the painfully slow Chinese/Japanese negotiations about a friendship treaty. See “An Ill Wind from the Senkakus”, Far Eastern Economic Review (28 April 1978).

68. Sankei Shimbun, 26 October 1978. Quoted in Park, C.H., China and Maritime Jurisdiction: Some Boundary Issues”, 22 German Yearbook of International Law (1979) p. 129Google Scholar. Zhou Enlai's reaction is mentioned in Hinton, H.G., “The China Sea: The American Stake in its Future”, Agenda Paper of the National Strategy Information Centre, (New Brunswick 1980) p. 5Google Scholar.

69. For the texts of the treaties, see Rüster, B., op.cit., n. 21, pp. 160162 and pp. 162–173Google Scholar.

70. The ratification of the treaty by the Japanese Parliament took place on 12 May 1977. See Archiv der Gegenwart, no. 20977. The exchange of the ratification documents and the entry into force of the treaty took place in June 1978. See “Japan-R.O.K. Shelf Pact Ratified, Effective”, Japan Times Weekly, (1 July 1978).

71. For this opinion, see “Oil Pact Delay Upsets Seoul”, Far Eastern Economic Review, (13 May 1977) and Park, loc.cit. n. 68. p. 135Google Scholar.

72. See “South Korea poised to drill”, Far Eastern Economic Review, (14 September 1979 and 9 April 1981).

73. See Wo waijiaobu fayanren fabiao shenming (“Declaration made by the spokesman for Foreign Affairs”), Renmin Ribao, (5 February 1974). Wo guo dalujia zhuquan bu rong qinfan (“The sovereignty of our nation over the continental shelf will tolerate no infringements”), Renmin Ribao, (14 June 1977). Zhonghua renmin gongheguo waijiaobu shenming, qianglie kangyi riben zhengfu qinfan woguo zhuquan (“Declaration of the Ministry of Foreign Affairs of the People's Republic of China, strongly protest against the infringement of the Japanese Government on the sovereignty of our nation”), Renmin Ribao, (27 May 1978), and Jiu riben, nanchao kaifa donghai dalujia qinfan wo zhuquan wenti wo guo zhengfu fabiao sheng (“Declaration of our Government regarding the problem of Japanese/South Korean exploitation of the continental shelf in the East China Sea and the infringement on our sovereignty”), Renmin Ribao, (8 May 1980).

74. Viz., on 20 March 1973, i.e., before the treaty was signed. The reason was a Chinese protest against drilling by an American oil company, with the permission of South Korea, in the continental shelf of the East China Sea. See Archiv der Gegenwart, no. 17746. South Korea made another offer on 6 February 1974. Archiv der Gegenwart, no. 18511.

75. For the Chinese declarations see Jue bu rongxu mei ri fandongpai lüeduo woguo haidi ziyuan (“We will absolutely not tolerate reactionary Japanese and American cliques plundering the natural resources of the sea bed of our nation”), Renmin Ribao (29 December 1970). Zhongguo lingtu zhuquan bu rong qinfan (“China's territorial sovereignty cannot tolerate any infringement”), Renmin Ribao, (1 May 1971). Statement of the Ministry of Foreign Affairs of the People's Republic of China”, 1 Peking Review (1972) p. 12Google Scholar, and Hua's, HuangLetter to UN Secretary General and President of the Security Council”, 21 Peking Review (1972) p. 15Google Scholar. For the Taiwanese declarations and discussions, Lifayuan Gongbao (Minutes of the Legislative Yuan) of 26 and 30 September and 7 and 10 October 1970. Diaoyu Tai wenti ziliao huibian (Compilation of material regarding the Diaoyu Tai problem)(Taipei 1971). The ming-pao no. 75 of March 1972 and no. 78 of June 1972 respectively, pp. 2–16 and pp. 53–64. For the Japanese declarations and discussions, The Foreign Ministry's view concerning the right of ownership over the Senkaku Islands”, United States Embassy, Daily Summary of Japanese Press, 8 03 1972, pp. 1516Google Scholar. Also in Cohen, & Chiu, , op.cit. n. 31, pp. 351352Google Scholar. Also Okuhara, loc.cit., n. 55 and “Japanese practice of International Law”, supra n. 56.

76. For this view, see, inter alia, Japanese People Demand Complete Return of Okinawa21 Peking Review (1972) p. 14Google Scholar.

77. See Joint Statement of the Government of the People's Republic of China and the Government of Japan” of 29 09 1972, 40 Peking Review (1972), pp. 1213Google Scholar. Article 3 reads: “The Government of the People's Republic of China reaffirms that Taiwan is an inalienable part of the territory of the People's Republic of China. The Government of Japan fully understands and respects this stand of the Government of China and adheres to its stand of complying with article 8 of the Potsdam Proclamation”. Based on the Japanese recognition of article 8, China arrived at the interpretation that: “this once again affirmed the fact that Taiwan has been returned to China since World War II”. “New Page in Annals of Sino-Japanese Relations”, Renmin Ribao, (30 September 1972). Translated in 40 Peking Review (1972) p. 14Google Scholar.

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79. As a symbol that the Emperor of China was superior to the kings and rulers of the tribute states. The Ryukyu Islands had been dominated since 1609 by the Satsuma clan from South Kyushu, but these rulers encouraged formal obeissance to the Chinese Emperor by the Ryukyu king on the basis of a number of trade advantages. On this, see Sakai, R.K., “The Ryukyu Islands as a fief of Satsuma”, and Ta-tuan Ch'en, “Investiture of Liu-Ch'iu Kings in the Ch'ing Period”: both in Fairbank, J.K., ed., “The Chinese World Order. Traditional China's Foreign Relations (Cambridge, Mass. 1968) pp. 112134 and pp. 135–164Google Scholar.

80. This map is included in the Chouhai tubian, dating from 1562, by the famous Ming cartographer, Zheng Ruozong (1501–1580). The work deals with the Chinese defence system against Japanese pirates, and, more in general, the relations between the two countries. From 1560 Zheng was the advisor of Hu Zongxian, the Commander of the Chinese coastal defence system. Cheng, T., loc.cit., n. 64, p. 257Google Scholar; considers the Chouhai tubian to be an official document. For a biography of Zheng, see the Dictionary of Ming Biography, Vol. I (New York 1976) pp. 204208Google Scholar.

81. For the Chinese text of the edict, see Diaoyu Tai wenti ziliao xuanji (Compilation of material regarding the Diaoyu Tai problem) (Hong Kong 1972) p. 16Google Scholar, English translation, Park, , loc.cit., n. 50, p. 47Google Scholar.

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83. For these arguments, see the declaration of the Japanese Minister of Foreign Affairs, supra n. 75. For an exhaustive discussion of the Japanese Government's action after 1895, see Okuhara, , loc.cit., n. 55, pp. 97103Google Scholar.

84. Japanese Ministry of Foreign Affairs, 18 Foreign Affairs Report, no. 311, App. II. (The Report of the Okinawa Magistrate to the Minister of the Interior, 22 September 1885), pp. 573–574 (1895) and idem, no. 312 (Memorandum from the Minister of Foreign Affairs to the Minister of the Interior, 21 October 1885), p. 575. Quoted by Cheng, , loc.cit., n. 64, pp. 248249Google Scholar.

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88. Supra n. 85, p. 883.

89. Huber's point of view has been criticised because it undermines the general principle that laws cannot be applied with retrospective effect. See Jennings, R., Acquisition of Territory in International Law (Manchester 1963), p. 28Google Scholar.

90. Legal Status of the Eastern Greenland Case (Denmark v. Norway), 1933 PCIJ, Ser A/B, no. 53, p. 22.

91. Affaire de l'fle de Clipperton (Mexico v. Fiance), decision of 28 January 1931, Report of International Arbitral Awards, Vol. II, (Leiden 1949), p. 1105Google Scholar.

92. Minquiers and Ecrehos case (France v. United Kingdom), 1953, ICJ Rep., p. 47Google Scholar.

93. See Bowett, D.W., The Legal Regime of Islands in International Law (New York 1979), pp. 4559Google Scholar. Also see the Island of Case, Palmas, supra n. 85, pp. 893894Google Scholar.

94. I consider Tao Cheng's opinion to be correct: loc.cit., n. 64, pp. 239–240.

95. See Keller, , op.cit., n. 87, p. 143Google Scholar.

96. See Akehurst, M., A Modern Introduction to International Law (London 1977), p. 143Google Scholar, and Brownlie, , op.cit., n. 86, pp. 143151Google Scholar.

97. On 24 November 1969. On this matter and with regard to the case against the possible future claim by Japan on the basis of prescription, see Yangzhi, Huang et al. “Diaoyu Tai qianwan diubude” (Diaoyu Tai will never be surrendered), included in supra n. 81, pp. 2932Google Scholar.

98. Akehurst, , op.cit., n. 96, p. 143Google Scholar.

99. As in the “Legal Status of the Eastern Greenland Case”, supra n. 90, p. 45.

100. In China's Sovereignty over the East China Sea Continental Shelf”, 20 Peking Review (1980) p. 7Google Scholar.

101. Declaration by the Chinese delegate at the ninth session on 5 September 1980. A/Conf. 62/S.R. 135, p. 16.

102. “Informal Composite Negotiating Text/Rev. I” of 28 April 1978. A/Conf. 62/W.P. 10/Rev. I.

103. China admittedly supported the amendment by Venezuela, which was aimed at making reservations possible under Art. 121.3 (so that one might deduce that China is in favour of the greatest possible influence of islands on the continental shelf), but this amendment also made reservations possible to the delimitation articles in the convention.

104. See the declaration of the Chinese delegate during the seventh session on 18 05 1978 (A/Conf.62/S.R.103, Official Records Vol. IX, p. 67)Google Scholar and during the eighth session on 25 04 1979 (A/Conf.62/S.R.112, Official Records Vol. XI, pp. 1314)Google Scholar.

105. See the Japanese draft articles on the continental shelf, supra n. 46.

106. Declaration of the Japanese delegate during the ninth session on 8 September 1980. A/Conf.62/S.R. 139, p. 3.

107. See the declaration of the Japanese delegates during the second session on 26 07 1974 (A/Conf.62/C.2/S.R.17, Official Records Vol. II, pp. 147148)Google Scholar, and during the seventh session on 18 05 1978 (A/Conf.62/S.R.103, Official Records Vol. X, pp. 6768)Google Scholar.

108. See the declaration of Nakagawa, supra n. 48.

109. Okuhara, , loc.cit., n. 55, pp. 103105Google Scholar.

110. According to Oda, S. in “The Continental Shelf Agreements between Japan and the Republic of Korea”, p. 254Google Scholar. This article is included in Oda, S., The Law of the Sea in our time – 1 New Developments, 1966–1976 (Leiden 1977)Google Scholar. On the other hand, Bowett, op.cit. n. 93, p. 297Google Scholar, considers that the dispute regarding this island has hindered the extension of the delimitation line towards the north. At first sight, a glance at the map seems to support this view.

111. Oda, ibid, p. 253.

112. See A/Conf.62/S.R. 105 of 19 05 1978. Official Records Vol. X, p. 82Google Scholar.

113. As happened, e.g., to the Japanese Danjo Gunto Islands in the joint development treaty between South Korea and Japan.

114. See Ma, Y.J., “Foreign Investment in the Troubled Waters of the East China Sea1 China Yearbook of International law (1981) p. 69Google Scholar. See also Map No. III.

115. 21 International Legal Materials (1982) pp. 12221226CrossRefGoogle Scholar.

116. See the Sankei Shimbun of 2 August 1979, quoted in Park, , loc.cit., n. 68, p. 139Google Scholar, and “Chinese propose Joint Senkaku Oil Development”, Japan Times Weekly (21 June 1980). Apparently the joint development treaty between Japan and South Korea is an obstacle. On this matter, see “Mission to China to explain Oil Issue”, Japan Times Weekly (16 August 1980).