1 Introduction
The delimitation of maritime boundaries can be a difficult process for States, particularly where there are unusual geographical features in the relevant area, or where the presence of significant resources add complexity to negotiations. Maritime boundaries can also be complicated where there are a number of States with potential jurisdiction in a relatively small area of ocean space, or where there are sovereignty disputes. The East China Sea is bounded by three littoral States, namely China; Japan; and the Republic of Korea. It is also largely free of islands save those close to the coasts of the littoral States, and, save for the Senkaku/Diaoyu Islands disputed between China and Japan in the south of the East China Sea, there are no sovereignty disputes. Yet for all of this, there are almost no maritime boundaries agreed between any of the East China Sea’s littoral States. This chapter considers whether State practice in the region has impacted upon the possible conclusion of a maritime boundary, and what impact, if any, it might have on the conclusion of a possible boundary.
The chapter will commence with consideration of applicable State practice, namely the use of territorial sea baselines, and the making of submissions to the Commission on the Limits of the Continental Shelf. This will begin with a brief introduction of the applicable law in the United Nations Convention on the Law of the Sea,1 before a discussion of the applicable practice of each of the littoral States in turn. It will then be followed by an analysis of principles of maritime boundary delimitation, with emphasis on the relevance of territorial sea baselines and areas of continental shelf beyond 200 nautical miles. The chapter will then conclude with the possible impact on State practice upon potential maritime boundaries, noting the application of the relevant law.
2
Before considering regional State practice, it is first necessary to consider the geography of the East China Sea which is illustrated in Map 1. The International Hydrographic Organization published a definition of the East China Sea in 1953.2 This provided for a western limit along the coast of mainland China, and eastern limit based the Ryukyu Islands, the northern tip of the island of Taiwan to the south and a line from the Chinese mainland to Jeju Island to Kyushu. The only littoral States bordering this area of sea are China, Japan and the Republic of Korea.
Consideration of the maritime boundaries in the East China Sea therefore can only include the maritime boundaries between China, Japan and the Republic of Korea. The Japan-Korea maritime boundary
3 Territorial Sea Baselines
3.1 Applicable International Law
Part ii of the Law of the Sea Convention deals, inter alia, with territorial sea baselines. Its antecedents come from, in part the 1958 Convention on the Territorial Sea and Contiguous Zone,4 which itself can be traced back to the Anglo-Norwegian Fisheries Case.5 The Case permits straight baselines to be drawn in a range of circumstances, but in the absence of such circumstances makes use of the “low water line” along the coast to be the “normal baseline”.6
Article 7 of the Law of the Sea Convention provides, in part:
- 1.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, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured.
- 2.Where because of the presence of a delta and other natural conditions the coastline is highly unstable, the appropriate points may be selected along the furthest seaward extent of the low-water line and, notwithstanding subsequent regression of the low-water line, the straight baselines shall remain effective until changed by the coastal State in accordance with this Convention.
- 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.
- 4.Straight baselines shall not be drawn to and from low-tide elevations, unless lighthouses or similar installations which are permanently above sea level have been built on them or except in instances where the drawing of baselines to and from such elevations has received general international recognition.
Some of the phrases used in Article 7 above, including “deeply indented and cut into”, “fringe of islands” and “general direction of the coast” were derived directly from Article 4 of the Convention on the Territorial Sea and Contiguous Zone, which in turn can be traced back to the Anglo-Norwegian Fisheries Case.7 The contention that has flowed from the interpretation of Article 7 is largely because these phrases are essentially subjective, and lacking a precise definition are capable of multiple interpretations.
3.2 China
The coastal geography of China from the Shandong Peninsula to the 25th parallel runs in a generally north-south direction, with Hangzhou Bay being a natural divide. North of Hangzhou Bay, the coastline is largely free of offshore islands, although there are some significant embayments, notably Jiaozhou Wan near Qingdao, and Haizhou Bay. There are some small islands off the coast, including Darshan Island, some 28 nautical miles off Lianyungang, Chaolian Island, around 30 nautical miles east-southeast of Qingdao, and Sheshan Island, around 19 nautical miles east off the estuary of the Yangtze River. Off Hangzhou Bay is the Zhoushan Archipelago, which consists of over 1300 islands, 103 of which are permanently inhabited. The archipelago covers over 20,000 square kilometres in area with a land area of over 1,000 square kilometres. Southward from there, the coastline is flanked by numerous small islands and embayments, particularly in the vicinity of Fuzhou.
China declared a system of territorial sea baselines along its coast, from the Shandong Peninsula to Hainan Island in 1996,11 pursuant to Article 3 of the 1992 Law of the Territorial Sea and Contiguous Zone.12 Neither the legislation nor the declaration provide for any methodology for the baselines, with the former requiring only coordinates for basepoints, and the latter providing the coordinates themselves. This is not unusual, with most States in their national legislation rarely providing any explanation for any individual baselines.
China ratified the Law of the Sea Convention on 7 June 1996, less than three weeks after it proclaimed its territorial sea baselines. Given the baselines have not been altered in the quarter of a century since their promulgation, it can be
The northern portion of the territorial sea baselines are characterised by a tendency to over-reach what would be legitimate. The baselines from the south-eastern extremity of the Shandong peninsula south to the mouth of the Yangtze River do not touch the Chinese mainland at any point. The coastline concerned is not deeply indented, and China has made use of a number of widely spaced relatively small features, including Darshan Island and Chaolian Island. South of Darshan Island to the Yangtze Estuary, the basepoints appear to be either undeveloped low tide elevations or open sea, each many miles apart, and not consistent with international law. Further south, the presence of numerous small islands off the coast sees the length of the baselines substantially reduce, and the case for the islands fringing the coast grows stronger. Nevertheless, the baselines have still attracted a protest from the United States.13
On 13 September 2012, China deposited with the United Nations a document entitled The Chart of Baselines of Territorial Sea of Diaoyu Dao and its Affiliated Islands of the People’s Republic of China showing the baselines and the outer limits of the territorial sea of China,14 as well as a list of geographical coordinates of points defining the baselines of China, as contained in the 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 of 10 September 2012. This resulted in a note verbale from Japan dated 24 September 2012 in which Japan claimed sovereignty over the Senkaku Islands.15
3.3 Korea
The western coast of the Korean Peninsula is relatively complex, with numerous bays and offshore islands. Some of the islands are well out to sea from the Korean mainland. Most of the larger features are inhabited, or at least were historically inhabited prior to the creation of national parks upon some
Although the baselines enclose what is clearly a deeply indented coastline, around which baselines could certainly be applied, they are not without difficulties. Firstly, there is a lack of clarity as to where the internal waters begin and end in both the west and the east. In the west, the baselines end on a small island well off the mainland coast of South Korea, leaving a substantial area of water on the maritime approaches to Inchon that may or may not be claimed as internal waters of South Korea.18 This uncertainly is in part motivated by the proximity to the dmz boundary with North Korea, and presumably a desire not to unduly provoke North Korea.
The baselines also are quite generous in their formulation, to an extent that may be contrary to international law from the point of view of some States, although not inconsistent with regional State practice. While there is no length limitation on baselines made under Article 7 of the Law of the Sea Convention for fringing islands and deeply indented coastlines, some of the baselines are long with seven of the 19 baselines drawn pursuant to Article 7 being longer than 24 nautical miles, and two of these exceed 48 nautical miles.19 The baselines have been the subject of protest by the United States, and were the subject of a Freedom of Navigation Program protest by US navy ships in 1999.
3.4 Japan
Japan initially moved to proclaim baselines to enclose the Seto Naikai or Seto Inland Sea, between Shikoku and Honshu Islands in 1977.21 In addition to these waters, Japan also has an extensive system of straight baselines around
Territorial Sea baselines in the east China Sea
4 Continental Shelf
4.1 Applicable International Law
In the cases of the Hedberg Line and the sediment thickness rule, a State wishing to use these techniques will need to submit data justifying their use to the Commission on the Limits of the Continental Shelf. The submission of this data is to occur within 10 years of the State concerned becoming a party to the Law of the Sea Convention, although the manner in which this has occurred, as a result of a compromise agreed at a meeting of the State parties, has seen the time limit as described stretched somewhat, including through the notification of a “Preliminary Information” statement, as a prelude to the making of a formal submission. Once received, the clcs initiates a process of consideration of the validity of the data, and enters into a process of engagement with the coastal State with a view to the publication of recommendations as to the limits of the continental shelf beyond 200 nautical miles. In the event of a dispute concerning a State’s submission, the clcs will, pursuant to its Rules of Procedure, suspend its consideration of the submission until such time the dispute is resolved or the objecting State indicates it is willing to allow consideration on the basis of it being without prejudice.26
Each of the East China Sea littoral States have made submissions to the clcs, with two of the States also lodging preliminary information prior to the making of a formal submission. It is appropriate to consider each in turn.
4.2 China
As China is hemmed in by neighbouring States, it does not obviously appear to have an opportunity to have an extended continental shelf that projects beyond 200 nautical miles in the East China Sea. However in May 2009, China lodged preliminary information with the clcs with respect to an area in the East China Sea, to the north of Taiwan.27 The information consists of a series of four continental slope profiles, with various points identified on them. Using those points to construct a “Hedburg line”, the Chinese coordinates produce a line with intervals of greater than the required 60 nautical miles, and that passes within 35 nautical miles of the Japanese island of Okinawa. Japan
On 14 December 2012, China lodged a partial submission with clcs concerning the East China Sea essentially in conformity with its Preliminary Information. It also used the baselines contained in the charts deposited with the United Nations on 13 September 2012 in the claim for extended continental shelf.29 On 28 December 2012, Japan protested the Submission for the same reason as it protested the Preliminary Information as well as the use of the baselines for the Senkaku Islands/Daiyou Dao.30 On 13 August 2013, Japan reiterated its view that because of the concerns expressed in its note verbale of 28 December 2102 that the Commission should not consider the Chinese submission.31
4.3 Korea
South Korea also appears to have no potential for a continental shelf beyond 200 nautical miles because of its proximity to neighbouring States. However it also lodged preliminary information with the clcs32 and a Submission in December 2012.33 The preliminary information essentially relates to the portions of the Japan – Korea petroleum joint development zone (jdz)
4.4 Japan
While Japan has made a submission to the clcs, none of the submissions pertain to areas within the East China Sea.37 One area of Japan’s submission, to the south of Okinotorishima has been the subject of notes verbale from China38 and the Republic of Korea,39 but it is well to the east and south of the East China Sea. Both notes verbale were lodged on the basis that Okinotorishima was in fact a rock for the purposes of Article 121(3) of the Law of the Sea Convention, and therefore Japan was not entitled to generate a continental shelf from the feature.40
5
It would be wrong to suggest that the East China Sea had been entirely devoid of maritime boundary activity, which is evident in Map 3, and is discussed below. Japan and the Republic of Korea concluded only a partial maritime continental shelf boundary, as well as a petroleum joint development zone. The boundary is a continental shelf boundary concluded in the 1970s and is essentially an equidistance line.41 South of the Korean Straits, the two States came into dispute over the course of the boundary, once Jeju Island became a factor in the calculation, and so the boundary ceased. With South Korea insisting on a boundary owing much to the configuration of the seabed, and Japan favouring a line of equidistance, the two States agreed to share the disputed area in a joint development zone where they would have shared jurisdiction over petroleum-related activity.42 The jdz terminates in the south at an approximate equidistance tripoint with China’s eez.43 It was a temporary arrangement, with a lifespan of 50 years from its entry into force.44
China has also negotiated a series of provisional fisheries agreements with Korea,45 and Japan.46 In both cases these agreements straddle either side of a possible median line and provide for cooperation in fisheries management.47 In 2008, Japan and China also agreed to a small petroleum joint exploration zone, although whether the “principled consensus” will amount to treaty status is questionable. It provides for cooperation on petroleum in an area adjacent to the larger Japan-Korea petroleum jdz.48
Maritime boundaries and joint development areas
Except for the small portion of continental shelf boundary between Japan and the Republic of Korea in the extreme northeast of the area under consideration in this chapter, all of these arrangements are designed to be temporary and without prejudice to a permanent boundary. While it might be expected
6 Maritime Boundary Delimitation
6.1 Law of the Sea Convention Provisions
While the Law of the Sea Convention has three articles that address maritime boundary delimitation, only two are relevant to the littoral States of the East China Sea. The geography in question means that, with the exception of the delimited maritime boundary in the Tsushima Strait between Japan and Korea, there is no location where the territories of any of the littorals is within 24 nautical miles of each other, obviating the need for a territorial sea boundary.51 As such, the only provisions of the Convention that are applicable in the relevant region are Articles 74 and 83 of the Convention, dealing with the delimitation of eez and continental shelf boundaries respectively. Both articles are identical save for the reference to the applicable zone:
- 1.The delimitation of the exclusive economic zone/continental shelf between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.
The Law of the Sea Convention therefore provides no methodology for States to move forward in delimiting their boundaries beyond doing so by agreement. Articles 74(3) and 83(3) do provide for “provisional arrangements of a practical nature”, in order to foster cooperation during the period prior to the conclusion of a boundary, however such arrangements are to be “without prejudice to the final delimitation”. As such, the framing of a methodology has been left to international courts and tribunals, or observed through State practice, which in the latter case is of limited utility in providing an assessment of future boundaries. That is to say what States may agree in one part of the world will not be binding upon them, or other States, in a different part of the globe. It is therefore useful to briefly consider the approach of the courts.
6.2
- 1.The Court will draw a provisional equidistance line, using all the features identified in the relevant area;
- 2.The Court will then test and if necessary adjust the provisional equidistance line to reflect an equitable result; and
- 3.The Court will assess whether the result produces a manifestly disproportional result.
Based on this practice, the method is the most appropriate in assessing the possible approach of an international court should there be future litigation concerning the maritime boundary between any of the littoral States or informing the negotiating positions. There are three factors which are potentially relevant
6.2.1 Use of Territorial Sea Baselines in Delimitation
The Court observes that the issue of determining the baseline for the purpose of measuring the breadth of the continental shelf and the exclusive economic zone and the issue of identifying base points for drawing an equidistance/median line for the purpose of delimiting the continental shelf and the exclusive economic zone between adjacent/ opposite States are two different issues. In the first case, the coastal State, in conformity with the provisions of unclos (Articles 7, 9, 10, 12 and 15), may determine the relevant base points. It is nevertheless an exercise which has always an international aspect (see Fisheries (United Kingdom v. Norway), Judgment, i.c.j. Reports 1951, p. 132). In the second case, the delimitation of the maritime areas involving two or more States, the Court should not base itself solely on the choice of base points made by one of those Parties. The Court must, when delimiting the continental shelf and exclusive economic zones, select base points by reference to the physical geography of the relevant coasts.60
Ultimately, the Court preferred to decide the location of basepoints relevant to the delimitation, rather than utilise lines identified by the coastal State. Certainly, the proclaimed territorial sea baselines used by Bangladesh and Myanmar did not figure in their litigation before the International Tribunal for the Law of the Sea,61 and the formulation used by the icj in the Black Sea quoted above was explicitly adopted in the case of Bay of Bengal (Bangladesh/India).62
Given the Law of the Sea Convention does permit coastal States to use any method they can agree upon to apply, State practice does appear to have seen the application of straight baselines in the calculation of the course of
Sohn also makes the point that often the basepoints that will be used to anchor the territorial sea baselines will be the same basepoints used in the calculation of a boundary, effectively meaning the straight baselines make no material difference in the creation of the boundary.64 This observation is correct, at least where the baselines employed by a State are relatively conservative. Examples of the straight baseline itself providing additional basepoints are harder to identify and significantly rarer. Ultimately, since there is no compulsion to use territorial sea baselines, either in the Convention or in the decided cases, it will be entirely a matter for the negotiating States, who will be motivated only by whether the use of baselines would be in their interest.
6.2.2 Treatment of Islands
The treatment of islands by international courts has varied considerably, but some common factors can be deduced. Even the smallest features considered in the above cases generated a full territorial sea, save St Martin’s Island, whose proximity to the Myanmar coast prevented this from taking place, although the island was given full effect in the creation of an equidistance line within 12 nautical miles.65 Features such as Quitasueño in Nicaragua/Colombia are very small,66 consisting in that case of some isolated rocks on a reef structure, and yet Quitasueño received a full territorial sea.67
The treatment of islands beyond the generation of a territorial sea has seen variation, although much of this has to the specific geography of each case.
From the cases, a number of factors can be identified:
- 1.Relatively small islands are not treated equally as compared to large mainland territories;
- 2.Even very small islands receive a full territorial sea unless within 24 nautical miles of the opposing State’s coast;
- 3.Small islands usually receive a reduced effect in the calculation of a median line, or may be discounted depending on whether their likely impact on a boundary would be very great; and
- 4.The enclaving of islands in another State’s jurisdiction is unusual, and always stems from a grossly disproportionate impact were they to receive treatment to link with their remaining territory’s eez.
Another factor relevant in the treatment of islands in delimitation is whether the island generates any maritime jurisdiction beyond a territorial sea, assuming it is a natural feature clear of the water at high tide. Article 121(3) of the Law of the Sea Convention provides that a rock that is not capable of human habitation or an economic life of its own, will be limited to a territorial sea, and not generate an eez or continental shelf. The Annex vii Tribunal in the South China Arbitration75 took an approach to the interpretation of this provision that set a very high standard for demonstrating what constitutes human habitation or an economic life of its own. By discounting actual habitation as a basis, and focusing on the creation of a largely self-sustaining community,76 it found that none of the features in the South China Sea qualified as capable of human habitation or an economic life of their own. The Tribunal made this finding in spite of the many hundreds of military personnel from China, Malaysia, the Philippines, Taiwan and Vietnam living on these islands on a permanent basis as government personnel sent to crew a military outpost would not qualify as a settled community.77 This included the largest island in the Spratlys, Itu Aba, which the Tribunal noted was over forty hectares in area,
6.2.3 Delimitation of the Continental Shelf beyond 200 Nautical Miles
… the law applicable to the present dispute, that is, to claims relating to continental shelves located less than 200 miles from the coasts of the States in question, is based not on geological or geomorphological criteria, but on a criterion of distance from the Coast or, to use the traditional term, on the principle of adjacency as measured by distance. 80
This is not to suggest that the idea of natural prolongation is now superseded by that of distance. What it does mean is that where the continental margin does not extend as far as 200 [M] from the shore, natural prolongation, … , is in part defined by distance from the shore, irrespective of the physical nature of the intervening sea-bed and subsoil. The concept of natural prolongation and distance are therefore not opposed but complementary; and both remain essential elements in the juridical concept of the continental shelf. 81
In the view of the Tribunal, the delimitation method to be employed in the present case for the continental shelf beyond 200 nautical miles should not differ from that within 200 nm. Accordingly, the equidistance/relevant circumstances method continues to apply for the delimitation of the continental shelf beyond 200 nm. This method is rooted in the recognition that sovereignty over the land territory is the basis for the sovereign rights and jurisdiction of the coastal State with respect to both the exclusive economic zone and the continental shelf …83
The same approach was used by the Annex vii Tribunal in the Bay of Bengal (Bangladesh/India).84 In the Somalia/Kenya Case, the icj merely continued the geodetic used to set the boundary within the eez, indicating no change in methodology.85
7 Possible Boundaries
7.1 China/Republic of Korea
In applying the approach to boundary delimitation used in the Black Sea Case, a possible maritime boundary between China and the Republic of Korea would be initially marked out through the drawing of a median line and making adjustments to account for any features that might have a disproportionate impact upon the course of the boundary. Since both States are relatively far apart, with no inconveniently located islands or peninsulas, in theory this should be straight-forward. However, drawing the median line will require consideration of which basepoints are to be used in its construction, as both States have extensive straight baseline systems facing each other across the
The relevance of the baselines and their possible use can be seen in the accompanying map. It shows the control lines used in the construction of the median line, identifying the basepoints used in the construction of the line. What is interesting from this map is that it demonstrates the Chinese baselines are far more significant in the construction of the median line than their Korean counterparts. Since the Chinese baselines mask large sections of the coast, including those connecting the small islands south of the Shandong Peninsula, the baselines themselves become relevant to the construction of the median line. This is even more stark in the baselines employed between Darshan Island and Sheshan Island. These baselines are very long, and according to the analysis in Limits in the Seas are anchored on undeveloped low tide elevations, which is inconsistent with Article 7 of the Law of the Sea Convention.86 These baselines provide a large number of control points in the construction of the median line in Map 4. While the Korean baselines are also relevant in this fashion in places, a much larger portion of the Korean control points are based on islands.
Theoretical equidistance line and control points
On this basis, the Republic of Korea would be much better served through the use of a median line constructed from actual land features, while China does much better from using its baseline system. In the unlikely event that an international tribunal were ever to consider a possible boundary, the treatment of territorial sea baselines in international case law in the construction of a boundary would greatly favour the Korean position.
On the Korean side, the islands used in the baseline systems do appear, from the information available, to be entitled to generate the full range of maritime zones (Mara Island; Soheugson-so and Hong-do), with the exception of North Clifford Island to the west of Taean, which has only a lighthouse. If this island could not be used to generate an eez, there are four inhabited islands closer to the coast within the limits of the Taeanhaean National Park just to the east, so the impact upon Korean jurisdiction would be limited. On the Chinese side, the critical features are the Zhoushan Islands, which extend the Chinese baselines to the east of Shanghai. Although the islands are small, many have been inhabited for many centuries.
7.2
For the maritime boundary between China and Japan, there are a number of complicating factors. First is the disputed status of the Diaoyu/Senkaku Islands. Since maritime jurisdiction is based upon sovereignty over land territory, where there is a dispute over sovereignty it is effectively impossible to resolve the course of a maritime boundary involving maritime zones generated from such territory. Since neither Japan nor China has shown any sign of a compromise involving the islands, the dispute makes the conclusion of a maritime boundary impossible in the southern quadrant of the East China Sea.
Even if a solution to the sovereignty dispute could be found, it is unclear whether the Islands would generate the full range of maritime zones. They have not been inhabited since before World War ii, and from 1945 until 1972
The presence of the island of Taiwan in the south also adds to the complexity. Japan does not recognize the government in Taipei, but is unlikely to treat with China to determine a maritime boundary between its territory and Taiwan as the island is not under the control of Beijing. The government in Taipei has proclaimed territorial sea baselines, enclosing the two small islands (P’eng-chia Yu and Mien-hua Yu) to the north of the main island,87 but there has been no adoption of those baselines nor a separate proclamation by Beijing.
Further north, the maritime boundary between the Ryukyu Islands of Japan and China is also problematic. In this instance, there are a full set of territorial sea baselines on only one side of the delimitation. China’s baselines shield its entire mainland coast while the Japanese baselines around Okinawa and Amami Oshima are irrelevant in the calculation of a median line as other Japanese islands are closer to the Chinese coast. The baselines enclosing a number of offshore features to the southwest of Kyushu are relevant in the construction of a median line.
In the vicinity of Okinawa, a median line would rely upon only three Japanese islands in its construction: Kume Island, Torishima and Iōtorishima. The first of these is inhabited and certainly would generate the full range of maritime zones under Article 121(3) of the Law of the Sea Convention, even with the most conservative interpretation. The remaining two islands are problematic. Torishima is a small isolated feature 38 kilometres north of Kume, and is uninhabited. It has been used as a bombing range for the American and Japanese militaries, and in physical area, it is less than one tenth the size of Itu Aba Island in the South China Sea, which was found to be a rock in the South China Sea Arbitration. North of Okinawa, Iōtorishima, which is 2.5 square kilometres in area, is an active volcano that remained inhabited for hundreds of years until 1958 when the residents were evacuated for their own safety. Whether this historic occupation would be sufficient, given there was formerly a settled community as required from the formulation used in the South China Sea
Moving northward, Yokoatejima and Takarajima represent potential basepoints for Japan, however only Takarajima is inhabited, as Yokoatejima is a steep sided volcano which was last active in the 19th Century. Even if it were unable to be used, the availability of Takarajima would see little change in the course of the median line. Enclosed with the baselines surrounding Kyushu, the basepoints generated by and Suzume Island (part of the Uji Islands) and Kusagaki-gunto would also be relevant. Neither of these features are inhabited.
On the Chinese side, while there are a large number of fringing islands scattered along the southern coast from Shanghai southwards, the baselines employed are very long, with five of the six used being in excess of 34 nautical miles in length, and half more than 69 nautical miles long. As is evident from Map 4, these baselines are used as control points for a median line, which is disadvantageous to Japan, although given the numbers of other features inboard of the baselines, the impact upon the course of the median line would not be great. The Chinese islands anchoring the basepoints appear to be either inhabited islands, or smaller features with navigational aids upon them.
A distinct factor in the possible China/Japan boundary in the East China Sea is the existence of the Okinawa Trough, and the extended continental shelf claimed by China in its submission to the Commission on the Limits of the Continental Shelf. The Chinese submission runs to the edge of the Trough and approaches to between 20 and 25 nautical miles from Japanese territory. This appears to indicate that China views the trough as the logical boundary between its jurisdiction and Japan’s jurisdiction. However since the Trough is more than 200 nautical miles from the nearest Chinese territory this presumably mean that there would have to be a water column boundary much further to the west.
The existence of the Okinawa Trough would be unlikely to sway an international court or tribunal that it should be used as the maritime boundary between China and Japan. As noted above, cases have not used submarine features in this fashion nor referred positively to such an approach since the North Sea Continental Cases in 1969, and more recently have indicated that there should be no distinction in the approach used to delimit the continental shelf whether within 200 nautical miles or beyond it. As such, China’s position with respect to the Trough is not strong.
On the other hand, the positions of China and Japan are analogous to that of Nicaragua and Colombia in their maritime boundary delimitation case. Colombia’s small and remote offshore islands were faced with the mainland coast of Nicaragua, masked with its own small offshore islands, and a similar
7.3 Japan/Republic of Korea
A median line between the republic of Korea and Japan is dominated by Jeju Island on the Korean side, and a number of small features on the Japanese side. For Japan, the Danjo Islands are located to the west of Kyushu and fall outside of the joint development zone agreed between the two States in 1974. The Danjo Islands are uninhabited, although there has been a manned lighthouse on Me Island, in the southwest of the group, for many years. To the north of the group is a small feature on the charts marked as Torinoshima, consisting of two outcrops with elevations of 17 and 9 metres. All of these features would generate a territorial sea, but it is likely that Korea would dispute their ability to generate an eez, and as much seems to be reflected in the course of the joint development zone around them.
If the Danjo Islands are ignored, the Japanese features that exert impact on a median line are Fukue Island and its smaller near neighbour, Saganoshima, both of which are inhabited. Using these islands and Jeju Island produces a median line as marked on Map 5. The theoretical line is not affected by Japan’s straight baselines and is much closer to the western side of the joint development zone.
The Republic of Korea, like China, has also made a claim to an area of shelf beyond 200 nautical miles which is influenced by the presence of the Okinawa Trough. The claimed area of shelf is even closer to the Japanese islands than the Chinese claim, and for the reasons discussed above in that context, is unlikely to influence the course of a possible maritime boundary.
8 Conclusions
There is little likelihood of an international court or tribunal having a role in determining any of the maritime boundaries in the East China Sea. While
A negotiated boundary would not be assisted by reliance upon the State practice on the parties. Chinese territorial sea baselines impact upon the course of median lines if they are used in their calculation, and the continental shelf submissions to the clcs made by China and Korea would make negotiation of a maritime boundary based on those submissions virtually impossible. When combined with the disputed status of the Senkaku/Diaoyu Islands and the presence of the island of Taiwan, there seems little prospect at present of concluding maritime boundaries. That said, the littoral States have been able to agree to joint arrangements with respect to fisheries, which is suggestive that some accommodation between each may be possible, if unlikely.
United Nations Convention on the Law of the Sea, 1833 unts 397.
International Hydrographic Organization, Limits of Oceans and Seas, (Monaco, 3rd Edition, 1953) iho Special Publication 23.
Agreement between Japan and the Republic of Korea Concerning the Establishment of Boundary in the Northern Part of the Continental Shelf Adjacent to the Two Countries, 1225 unts 1981.
Convention on the Territorial Sea and Contiguous Zone, 516 unts 205.
Fisheries (Norway v United Kingdom) icj Reports 1951 p. 116.
United Nations Convention on the Law of the Sea, Article 5.
Fisheries (Norway v United Kingdom) icj Reports 1951 p116 at 128–129.
J.R.V. Prescott & C.H. Schofield, The Maritime Political Boundaries of the World, (Leiden, Martinus Nijhoff, 2nd Edition, 2005) 139–156.
US State Department, “Developing Standard Guidelines for Straight Baselines” (1987) 106 Limits in the Seas 1 at 6–7.
The full collection of Limits in the Seas is at <
See Declaration of the Government of the People’s Republic of China on the baselines of the territorial sea, 15 May 1996: <
See <
US State Department, ‘Developing Standard Guidelines for Straight Baselines’ 106 Limits in the Seas, 1987, 1–35.
See <
Note verbale dated 24 September 2012: reprinted at <
Enforcement Decree of[the] Territorial Sea and Contiguous Zone Act promulgated on 20 September 1978.
<
US State Department, ‘Straight Baselines and Territorial Sea Claims: South Korea’ 121 Limits in the Seas, 1998, 5–6.
See J.A. Roach, Excessive Maritime Claims (Leiden, Brill Nijhoff, 4th Edition, 2020) 108.
Law on the Territorial Sea (Law No. 30 of 2 May 1977) and Cabinet Order No.210 of 1977.
Enforcement Order of the Law on the Territorial Sea and the Contiguous Zone (Cabinet Order No. 210 of 1977 amended by Orders No. 383 of 1993, No. 206 of 1996 and No. 434 of 2001): reprinted at <
US State Department, ‘Straight Baselines and Territorial Sea Claims: Japan’ 120 Limits in the Seas, 1998.
M.H. Nordquist (ed.), United Nations Convention on the Law of the Sea 1982: A Commentary (The Hague: Martinus Nijhoff, 1993) Vol.2, 873 et seq.
Rules of Procedure of the Commission on the Continental Shelf, UN Doc. clcs/40/Rev.1, 17 April 2008 Rule 46, and Annex i, clause 5(a).
See Preliminary Information Indicative of the Outer Limits of the Continental Shelf Beyond 200 Nautical Miles of the People’s Republic of China, 11 May 2009: reprinted at <
Note verbale dated 23 July 2009: reprinted at <
Submission of the People’s Republic of China Concerning the Outer Limits of the Continental Shelf beyond 200 Nautical Miles in Part of the East China Sea: Executive Summary, 14 December 2021: reprinted at <
Note verbale dated 28 December 2012: reprinted at <
Note verbale dated 13 August 2013: reprinted at <
See Preliminary Information regarding the Outer Limits of the Continental Shelf, 11 May 2009: reprinted at <
Partial Submission to the Commission on the Limits of the Continental Shelf Pursuant to Article 76 Paragraph 8 of the United Nations Convention on the Law of the Sea: Executive Summary, 26 December 2012: reprinted at <
Agreement between Japan and the Republic of Korea Concerning Joint Development of the Continental Shelf Adjacent to the Two Countries, reprinted at in J.I. Charney & L.M. Alexander (eds), International Maritime Boundaries (Dordrecht: Martinus Nijhoff, 1996) Vol. 1, 1065–1068.
Note verbale dated 23 July 2009: reprinted at <
Note verbale dated 11 January 2012: reprinted at <
Japan’s Submission to the Commission on the Limits of the Continental Shelf pursuant to Article 76, paragraph 8 of the United Nations Convention on the Law of the Sea: Executive Summary, 12 November 2008: reprinted at <
Note verbale dated 6 February 2009: reprinted at <
Note verbale dated 27 February 2009: reprinted at <
For Japan’s responses on 25 March 2009: reprinted at <
Agreement between Japan and the Republic of Korea Concerning the Establishment of Boundary in the Northern Part of the Continental Shelf Adjacent to the Two Countries, supra note 3.
Agreement between Japan and the Republic of Korea Concerning Joint Development of the Continental Shelf Adjacent to the Two Countries, supra note 34.
Agreement between Japan and the Republic of Korea Concerning Joint Development of the Continental Shelf Adjacent to the Two Countries, supra note 34, Article xxxi.
Agreement of Fisheries between the Republic of Korea and the People’s Republic of China, 3 August 2000, reprinted in Sun Pyo Kim, Maritime Delimitation and Interim Arrangements in North East Asia (The Hague: Martinus Nijhoff, 2004), 347–356.
Agreement on Fisheries between the People’s Republic of China and Japan, 11 November 1997, reprinted in Sun Pyo Kim, Maritime Delimitation and Interim Arrangements in North East Asia (The Hague: Martinus Nijhoff, 2004), 338–347.
For a discussion of these arrangements see G. Xue, ‘Bilateral Fisheries Agreements for the Cooperative Management of the Shared Resources of the China Seas: A Note’ 36 Ocean Development & International Law, 2005, 363–374.
China and Japan Reach Principled Consensus on the East China Sea Issue, 2008: reprinted at <
Agreement on Fisheries between the Republic of Korea and Japan of 1999, 1999: reprinted in Sun Pyo Kim, Maritime Delimitation and Interim Arrangements in North East Asia (The Hague: Martinus Nijhoff, 2004), 327–338.
See Ibid., Annex i and Agreed Minutes, para. 2.
Even in that case, Japan and the Republic of Korea both decided to keep the territorial seas of their possessions on either side of the Tsushima Straits to 3 nautical miles in width, avoiding a territorial sea boundary: see Suk Kyoon Kim, Maritime Disputes in Northeast Asia, (Leiden, Brill Nijhoff, 2017) 39.
Black Sea Case (Romania v Ukraine) i.c.j. Reports, 2009, p. 101 at para 115–122.
Territorial and Maritime Dispute (Nicaragua v Colombia) i.c.j. Reports 2012, p. 624.
Maritime Dispute (Peru v Chile) i.c.j. Reports, 2014, p. 3 at para 180.
Bay of Bengal (Bangladesh v Myanmar) i.t.l.o.s. Reports 2012, p. 4 at para 233.
Bay of Bengal (Bangladesh v India), 7 July 2014: reprinted at <
Dispute concerning delimitation of the maritime boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean (Ghana v Côte d’Ivoire), i.t.l.o.s. Reports 2017, p. 4 at para 360.
Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), i.c.j. Reports 2007, p. 659.
Maritime Delimitation in the Indian Ocean (Somalia v Kenya) i.c.j. Reports 2021 at para 122.
Black Sea Case (Romania v Ukraine) i.c.j. Reports, 2009, p. 101 at para 137.
Bay of Bengal (Bangladesh v Myanmar) i.t.l.o.s. Reports 2012, p. 4 at para 264.
Bay of Bengal (Bangladesh v India), 7 July 2014: reprinted at <
L.B. Sohn, ‘Baseline Considerations’ in J.I. Charney & L.M. Alexander (eds), International Maritime Boundaries (Dordrecht: Martinus Nijhoff, 1996) Vol. 1, 153 at 157.
Ibid., 156–158.
Bay of Bengal (Bangladesh v Myanmar) i.t.l.o.s. Reports 2012, p. 4 at paras 298–319.
See <
Territorial and Maritime Dispute (Nicaragua v Colombia) i.c.j. Reports 2012, p. 624 at paras 181–183.
See Newfoundland/Nova Scotia Arbitration, 26 March 2002: reprinted at <
Black Sea Case (Romania v Ukraine) i.c.j. Reports, p. 101.
Territorial and Maritime Dispute (Nicaragua v Colombia) i.c.j. Reports 2012, p. 624 at para 167 et seq.
Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), i.c.j. Reports 2007, p. 659 at para 304 et seq.
Bay of Bengal (Bangladesh v Myanmar) i.t.l.o.s. Reports 2012, p. 4.
Territorial and Maritime Dispute (Nicaragua v Colombia) i.c.j. Reports 2012, p. 624 at para 167 et seq.
Maritime Delimitation in the Indian Ocean (Somalia v Kenya) i.c.j. Reports 2021 at para 114.
South China Sea Arbitration (Philippines v China), 12 July 2016: reprinted at <
Ibid., at para 520.
Ibid., at para 620.
Ibid., at paras 580–614.
North Sea Continental Shelf Cases i.c.j. Reports 1969, p. 3 at para 19.
Libya/Malta Case i.c.j. Reports 1985, p. 15 at para 61.
Ibid.
Barbados/Trinidad & Tobago Arbitration, xxvii r.i.a.a. 147 (2006), para 213.
Bay of Bengal (Bangladesh v Myanmar) i.t.l.o.s. Reports 2012, p. 4 at para 455.
Bay of Bengal (Bangladesh v India), 7 July 2014: reprinted at <
Maritime Delimitation in the Indian Ocean (Somalia v Kenya) i.c.j. Reports 2021 at para 196.
US State Department, ‘Straight Baselines: China’ (1996) 117 Limits in the Seas 1 at 3–8.
Law on the Territorial Sea and the Contiguous Zone, 21 January 1998, Annex 2.