Transcript Territorial Sea

New Challenges and
Developments
Professor Donald R. Rothwell
ANU College of Law
Australian National University
East China Sea Geopolitics
 Contested sovereignty
 Land
 Maritime
 Characteristics of a semi-enclosed sea
 Significant external actors
 United States
 Growth in maritime trade and commerce
 Significant ‘choke’ points via sea lanes of
communication
East China Sea Geopolitics
 Overlapping maritime claims and counterclaims
 PRC
 ROC
 Japan
 ROK
 Recent clashes and flashpoints
 Senkaku/Diaoyu Islands (2012)
 Chinese Air Defence Identification Zone (2013)
+ numerous fishing clashes
and confrontations
Dokdo/Takeshima
Senkaku/Diaoyu Islands
Key Contemporary Legal Issues
1.
Territorial Disputes
2. Islands and Rocks
3. Maritime Boundaries
4. Dispute Resolution
1. Territorial Disputes
 Territory as an essential attribute of a State
 Critical to the recognition of a new State
 Some territorial claims may be subject to dispute
 Sovereignty of the State is exercised over territory
 Are there differential standards for ‘metropolitan lands’
and more ‘distant lands’?
Legal Status of Eastern Greenland case (1933)
 Title to territory may change over time
 Hong Kong
 Timor-Leste
Territory and Maritime Claims
 Land dominates the sea
 Land creates entitlements to assert maritime claims
 Maritime claims result in sovereignty and sovereign
rights
Territorial Sea - 12 nm – Sovereignty over the water
column, seabed, subsoil and airspace
Exclusive Economic Zone – 200 nm – Sovereign rights
over the water column and the seabed and subsoil
Continental Shelf - 200nm+ - Sovereign rights over the
water column and the seabed and subsoil
Territorial and Maritime Claims
Territorial and Maritime Claims
How is title to contested
territory confirmed?
Grounds for recognition of title to territory
1. Discovery
2. Contiguity/Hinterland
3. Cession/Transfer
4. Prescription
cf Annexation (Crimea)
Critical element: When has title been perfected?
Role of ‘inter-temporal law’
“ a juridical fact must be appreciated in the
light of the law contemporary with it”
- Judge Huber, Island of Palmas case
(Netherlands v USA) (1928)
- Distinguish between the creation of
rights and the existence of rights
Some contemporary issues
 Historical basis for a territorial claim
 Cameroon v Nigeria (2002)
 Western Sahara Advisory Opinion (1975)
 Continuous display of sovereignty – effectivités
 Pulau Ligitan and Pula Sipadan (Indonesia v.
Malaysia) (2002)
 Sovereignty over Pedra Branca (Malaysia v
Singapore) (2008)
 The critical date
 Eastern Greenland (Denmark v. Norway) (1933)
2. Islands and Rocks
What are the entitlements of the following features in
the East China Sea?
Islands
Rocks
Low-Tide Elevations
Do certain features generate:
12 nm Territorial Sea
No Territorial Sea
Gavan Reefs, South China Sea
Woody Island (Paracel Is, PRC)
Niijima Island, Japan
Disputes Regarding Legal Status
of Maritime Features
LOSC, Article 121 (1)
Island generates all maritime zones:
An island is a naturally formed area of land,
surrounded by water, which is above water at
high tide
Cf. Article 121 (3) Rocks “which cannot
sustain human habitation or an economic
life of their own”: NO EEZ/Continental Shelf
Islands
 LOSC makes a clear distinction between
islands and rocks
 Islands where maritime claims have been
contentious
 Pedra Branca, Middle Rocks and South Ledge
[2008] ICJ Rep 12

No separate sovereignty over a low tide elevation
that falls within the territorial sea
Heard Island
See Judge Vukas in Volga case (Russian Federation v Australia) (ITLOS: 2002)
Islands
Contentious issues
 When is an island a rock?
 When can a rock not sustain human
habitation?
 When can a rock not have an economic life
of its own?
Associated issues
What maritime claim can be asserted from?
 Atolls
 Cays
 Islets
 Banks
 Shoals
 Reefs
What is the impact of human structures being placed on
these features? Ie. Lighthouses
Artificial Islands?
Article 60: Do not possess the status of islands; have
no territorial sea of their own
Cf. Dubai Palms
Nicaragua v Colombia (2012)
 Definition of a ‘cay’, ‘atoll’, ‘bank’
 Definition of a ‘shoal’
“Banks whose tops rise close enough to the sea surface
(conventionally taken to be less than 10 metres below
water of low tide) are called shoals.
Maritime features which qualify as islands or low-tide
elevations may be located on a bank or shoal” [20]
“The regime of islands set out in UNCLOS Article 121
forms an indivisible regime…” [139]
3. Maritime Boundaries
Delimitation Methodology
1. Provisional Equidistance or Median Line
2. Identification of Relevant Circumstances

Adjustment of Provisional Line
3. Proportionality Test

Modification of the Line to ensure an equitable
outcome
Relevant Circumstances
 What is the ‘relevant maritime area’ under
delimitation?
 Black Sea (2009)/Bay of Bengal (2012)
 Requires
 Physical identification of the area
 Relevant circumstances that exist within the area
 Small islands with no permanent population
 Nicaragua v Colombia (2012) ICJ
Key Issues
Who is the territorial sovereign?
2. Does the terrestrial or maritime feature generate a
maritime entitlement?
3. If Yes, an entitlement to what? [Island v Rock]
1.

Basepoint on a straight baseline?
 A Territorial Sea?
 An EEZ or continental shelf?
4. Does the entitlement overlap with another State?
5. If maritime boundaries need to be delimited what
impact will these features have?
Nicaragua v Colombia (2012)
Nicaragua v Colombia (2012)
Impact upon East China Sea?
 Limitations of small islands to have a distorting impact
upon direction of the maritime boundary
 Article 121 (1) island may be enclaved and given only a
12nm Territorial sea
 Shoals, banks, reefs and other LTEs will have no
significant impact upon the direction of the maritime
boundary
 Application of the proportionality test gives greater
weight to mainland coasts and island nations
4. Dispute Resolution
 Adjudication by ICJ or Arbitral tribunal
 An ICJ Advisory Opinion?
 Islands and Rocks: Article 121
 Maritime Boundary Delimitation by Adjudication?
 Range of options: ICJ, Annex VII Arbitration, ad hoc
Arbitration
 Joint Declaration referring a case to the ICJ may attract
third parties
 Antarctic Treaty-type solution?
 Maritime Boundaries by Agreement?
 Joint Development Zones?
Philippines v China Arbitration
Philippines commences Annex VII Proceedings: 2013
 China rejects the application: 2013
 Annex VII mechanisms activated: 2013
 ITLOS President appoints arbitrator on behalf of
China: 2013
 ITLOS President appoints remaining arbitrators: 2013
 Philippines Memorial submitted: 2014
 China fails to submit Memorial: 2014
 Tribunal asks questions of Philippines: 2015
Issues for the Annex VII Tribunal
Is there a dispute?
1.

Nature of the Philippines claim
2. Does the Tribunal have jurisdiction?

China’s Article 298 Declaration
“disputes concerning…or those concerning historic bays or titles”
3. Will China reverse its position and participate?
4. Does the case impact upon the rights and interests of
third states? May those states seek to intervene?
Concluding Remarks
International Legal framework exist for resolution of
 Territorial and Maritime Disputes
2. Recent cases have sought to
1.



Clarify status of certain maritime features
Give greater certainty to maritime delimitation
Clarify the impact that islands and other maritime features
will have upon maritime delimitation
Formal dispute resolution mechanisms
3.


May not apply due to jurisdictional exceptions
May be contentious