Cases Concerning Territorial and Maritime Issues in East Asia 4/28/2017 Cases Concerning Territorial and Maritime Issues in East Asia 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 Territorial Disputes Islands and Rocks Maritime Boundaries 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 Discovery Contiguity/Hinterland Cession/Transfer 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 Provisional Equidistance or Median Line Identification of Relevant Circumstances Adjustment of Provisional Line 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? Does the terrestrial or maritime feature generate a maritime entitlement? If Yes, an entitlement to what? [Island v Rock] Basepoint on a straight baseline? A Territorial Sea? An EEZ or continental shelf? Does the entitlement overlap with another State? 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? Nature of the Philippines claim Does the Tribunal have jurisdiction? China’s Article 298 Declaration “disputes concerning…or those concerning historic bays or titles” Will China reverse its position and participate? 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 Recent cases have sought to 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 May not apply due to jurisdictional exceptions May be contentious