1. 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

2. 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

3. 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

4. Dokdo/Takeshima

5. Senkaku/Diaoyu Islands

6. Key Contemporary Legal Issues
Territorial Disputes
Islands and Rocks
Maritime Boundaries
Dispute Resolution

7. 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

8. 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

9. Territorial and Maritime Claims

10. Territorial and Maritime Claims

11. 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?

12. 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

13. 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)

14. 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

15. Gavan Reefs, South China Sea

16. Woody Island (Paracel Is, PRC)

17. Niijima Island, Japan

18. 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

19. 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

20. Heard Island
See Judge Vukas in Volga case (Russian Federation v Australia) (ITLOS: 2002)

21. 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?

22. 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

23. Artificial Islands?
Article 60: Do not possess the status of islands; have no territorial sea of their own

24. Cf. Dubai Palms

25. 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]

26. 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

27. 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

28. 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?

29. Nicaragua v Colombia (2012)

30. Nicaragua v Colombia (2012)

31. 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

32. 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?

33. 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

34. 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?

35. 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