Abstract
From an institutionalist point of view, boundary arrangements can increase certainty, reduce transactions costs, and thus facilitate international cooperation. Yet the task of delimiting national boundaries, whether land or maritime, is often time consuming, requiring strong political will and tireless diplomatic efforts of all neighboring states with conflicting claims. In the process of boundary delimitation, some important political decisions have to be made in each stage. Bernard H. Oxman (1994/1995: 255) identifies four important political decisions to be made in relation to boundaries, unless military options are brought to table: (1) the decision to negotiate; (2) the decision to propose a particular boundary; (3) the decision to make concessions with a view to reaching agreement; and (4) the decision to agree on a particular boundary. At the same time, all negotiating parties must take into account the effect of any proposal they make on their relations with their neighbors. Though selfish and conflictual unless given appropriate conditions under which to cooperate, states, both small and large, are often concerned about the reputation costs that would be incurred should they fail to comply with international rules and norms. Unless they are willing to use unrelated resources (either as carrots or as sticks) to obtain a favorable boundary, their proposal must be based upon more than unrestrained self-interest. The search for a proposal that has a plausible legal and equitable foundation will thus entail (Oxman 1994/1995: 261).
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Notes
- 1.
The terms “enclosed or semi-enclosed seas” is defined in Article 121 of UNCLOS as “a gulf, basin or sea surrounded by two or more States and connected to another sea or the ocean by a narrow outlet or consisting entirely or primarily of the territorial seas and exclusive economic zone of two or more coastal States.”
- 2.
In many cases, the equidistance line has proven to be inappropriate for establishing a fair and equitable maritime boundary. In the 1969 North Sea Continental Shelf cases, the ICJ discovered that the concave nature of the coastlines of the Netherlands, Germany, and Denmark would leave Germany with only a small patch of maritime space if equidistance lines drawn from the coastlines were applied. In this and other cases, the ICJ found that strict equidistance lines might have distorting effects on delimiting maritime boundaries unless special circumstances such as history, geography, culture, and so forth were not properly considered (Donaldson and Williams 2005: 142).
- 3.
With regard to the delimitation of EEZ, it provides “... where any part of that line (i.e., 200 nm line from the baseline) as measured from the baseline of Japan lies beyond the median line…, the median line (or the line which may be agreed upon between Japan and a foreign country as a substitute for the median lines) shall be substituted for that part of the line” (Quoted in Kim 2004: 183). An identical provision is found in Article 2 of the law on the delimitation of the continental shelf. In the meantime, the provisions of Articles 74(3) and 83 of UNCLOS place primary emphasis on the cooperation and mutual restraints between relevant states in the absence of an agreed boundary.
- 4.
Saunders (2001: 10–11) enlists key elements that would make possible the development of durable regional ocean management regime: (1) pre-existing habits of cooperation and institutional development; (2) clearly defined benefits to be gained through regional cooperation; (3) the need for capacity-building, whether at the national level or through regional sharing of management capabilities; (4) the presence of external threats which may consolidate the regional position; (5) intra-regional maritime disputes which threaten security generally, and which motivate a regime for conflict resolution; (6) cultural and political homogeneity; (7) the existence of significant transnational networks of epistemic communities; (8) public awareness and concern with a given issue or range of issue; and (9) levels of economic development and availability of funding source.
- 5.
The so-called unitization agreement is different from JDZ in that an agreed maritime boundary already exists and the unitization will only apply to the identified straddling field. A unitization agreement first defines the extent of the field in question. The parties concerned then decide the way in which exploration shall be conducted and how the revenue from the exploration shall be shared. Notably, most maritime boundary agreements since the mid-1970s have included provisions committing the signatory states to friendly consultation in the event of a new discovery of deposits straddling the existing boundary. For example, Article 7 of the 2000 Sino-Vietnamese agreement on maritime boundary delimitation states: “in case that any single geophysical structure of oil and gas or other mineral deposit should straddle the delimitation line as provided in Article 2 of this Agreement, the Parties shall, through friendly consultation, reach an agreement on the development of the structure or deposit in a most effective way as well as on equal sharing of the profits resulting from the development” (Quoted in Donaldson and Williams 2005: 146). The prevalence of these clauses in boundary treaties have set a precedent for states to cooperate over straddling deposits when a boundary has already been established. But obligations in case of no agreed boundary are less clear. Some scholars like Miyoshi (1999: 3–5) contend that neighboring countries should abstain from exploring in disputed areas until boundaries are concluded. Yet this view does not seem to have garnered unanimous support among East Asian countries.
- 6.
In this regard, the ICJ held “the Court cannot admit that such an agreed common fishery zone in these waters would involve a regime of common use of the land territory of the islets and rocks, since the Articles relied on refer to fishery only and not to any kind of use of land. Nor can the Court admit that such an agreed common fishery zone should necessarily have the effects of precluding the Parties from relying on subsequent acts involving a manifestation of sovereignty in respect of the islets” (Quoted in Kim 2004: 110).
- 7.
In March 1977, Moscow and Tokyo started negotiating the delimitation of their maritime boundaries. In the presence of the disputed islands, the negotiation process was rocky at best. The main obstacle was the definition of the geographical scope of the Soviet fishing zone as the Soviet Union insisted upon making it clear in the fishery treaty that the disputed islands belong to the Soviet Union. For Japan, however, a fishery treaty was urgently needed as its fishermen had been heavily fishing in the waters, which had been the high seas and then were claimed as part of the fishing zone by the Soviet Union in December 1976. In implementing the agreements, Japan has thus acted upon the reality that the Soviet Union exercised jurisdiction in the disputed islands, and recognized the equidistance line between the disputed islands and the Japanese islands as de facto maritime boundaries (Kim 2004: 129–30).
- 8.
The East China Sea is relatively shallow, with water depths of less than 200 meters except in the Okinawa Trough along the Japanese coast. The seabed slopes gently from the Chinese coast until it drops abruptly into the Okinawa Trough whose depth reaches 2,716 meters at its deepest. China holds that the Okinawa Trough, which does not follow the Japanese coast closely, proves that the continental shelves of China and Japan are not connected, and that the Trough serves as the boundary between them (“East China Sea” and “Okinawa Trough” in Wikipedia, http://en.wikipedia.org/wiki/East_China_Sea; http://en.wikipedia.org/wiki/Okinawa_Trough, Accessed 10 February 2009).
- 9.
Despite the absence of a mutually agreed delimitation line, China began explorations in the 1980s with a view to develop natural gas in the Xihu Trough, a region slightly under 200 nm from the nearest point of the China coast baseline. The development of the Chunxiao gas field, which is the flag ship in the group of seven under development in the Xihu Trough, began in August 2003. The Chinese National Offshore Oil Corporation (CNOOC) and the China National Petroleum Corporation (CNPC) entered into a joint venture agreement in 2003 with America’s Unocal and Royal Dutch/Shell for oil development. Although these foreign companies suddenly withdrew in 2004 presumably due to Japanese protests, the Chinese went ahead with drilling on their own, beginning in early 2005 (“Xihu Trough” in Wikipedia, http://en.wikipedia.org/wiki/Xihu_Trough, Accessed 10 February 2009).
- 10.
On the one hand, the Chinese position seems to find support in the ICJ’s ruling in the case concerning the continental shelf (Libya vs. Malta): “If there exists a fundamental discontinuity between the [continental] shelf area adjacent to one Party and the [continental] shelf area adjacent to the other,” the Court said, “the boundary should lie along the general line of the fundamental discontinuity” (ICJ Judgment of 3 June 1985; Quoted in Hsiung 2005). On the other hand, the case of the maritime boundary based on a natural prolongation argument seems increasingly untenable and controversial. While boundaries based on seabed geomorphology were in vogue during the 1960s and 1970s, the ICJ has ruled out geomorphology as a relevant factor in boundary delimitation between coasts that are less than 400 nm apart. Thus, it appears that Japan may have the stronger case (Donaldson and Williams 2005: 148–9).
- 11.
In comparison with the 1975 Sino–Japanese fishery agreement, which applied only to the water areas along the Chinese coast and within the de facto Chinese EEZ, the new agreement applies to the EEZs of both sides (Zou 2005: 101).
- 12.
When compared to the common fishing zone in the Gulf of Tonkin agreed between China and Vietnam in 2000, the Sino–Japanese common fishing zone is unique in that: (1) the latter is provisional whereas the former is permanent; and (2) the Sino–Japanese fishery agreement chose to shelve the thorny sovereignty and EEZ issues, while the areas near the disputed islands became subject to tight and carefully coordinated common fishing zone. In contrast, the former is connected to the maritime boundary delimitation and the fishery issue was one of the critical considerations during the delimitation negotiation (Zou 2005: 104).
- 13.
South Korea’s reliance on the equitable principles in the East China Sea is derived from its position that the underwater natural prolongation of the Korean peninsula extends to the Okinawa Trough which is situated about 280 nm from South Korea’s southernmost island of Marado, and that Japan’s natural prolongation underneath the sea ends at the Okinawa Trough which is only about 100 nm from the Japanese Ryukyu Islands. China also upholds the natural prolongation theory for the delimitation of boundaries in the East China Sea relying on the presence of the Okinawa Trough (Park 1983d: 106–13).
- 14.
The UNCLOS provides for dispute settlement procedures in Articles 73(2) and 83(2). The identical paragraphs provide that if no agreement can be reached within a reasonable period of time, the concerned parties shall resort to the procedures provided for in Part XV (Settlement of Dispute). Yet it is unlikely that East Asian countries would ask for third-party arbitration to resolve the delimitation issues.
- 15.
According to UNCLOS Articles 74(3) and 83(3), states are legally obliged not to jeopardize or hamper the reaching of a final agreement on delimitation; instead, they are expected to maintain the status quo as to issues of final delimitation in accordance with the principle of good faith (Kim 2004: 57).
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(2010). Maritime Regime Building in East Asia. In: Island Disputes and Maritime Regime Building in East Asia. The Political Economy of the Asia Pacific. Springer, New York, NY. https://doi.org/10.1007/978-0-387-89670-0_7
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