Park, Choon-ho

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Legal Problems of Seabed Boundary Delimitation in the East China Sea, by Ying-Jeou Ma, With a Foreword by Louis B. Sohn

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Maryland Journal of International LawVolume 9 | Issue 2 Article 17Legal Problems of Seabed Boundary Delimitationin the East China Sea, by Ying-Jeou Ma, With aForeword by Louis B. SohnChoon-ho ParkFollow this and additional works at: http://digitalcommons.law.umaryland.edu/mjilPart of the International Law CommonsThis Article is brought to you for free and open access by DigitalCommons@UM Carey Law. It has been accepted for inclusion in Maryland Journal ofInternational Law by an authorized administrator of DigitalCommons@UM Carey Law. For more information, please contactsmccarty@law.umaryland.edu.Recommended CitationChoon-ho Park, Legal Problems of Seabed Boundary Delimitation in the East China Sea, by Ying-Jeou Ma, With a Foreword by Louis B.Sohn, 9 Md. J. Int'l L. 269 (1985).Available at: http://digitalcommons.law.umaryland.edu/mjil/vol9/iss2/17LEGAL PROBLEMS OF SEABED BOUNDARY DELIMITATION INTHE EAST CHINA SEA. By Ying-jeou Ma, with a Foreword by Louis B.Sohn. Baltimore, Md.: Occasional Papers/Reprints Series in ContemporaryAsian Studies, Inc., 1984, 308 pp., $15.00.This volume is, to date, the first monography on seabed boundary de-limitation in East Asia so comprehensive in coverage and deep in analysis.The book consists of two parts: Part I, The Setting: The East China Sea OilDisputes, and Part II, The Maritime Jurisdictional Disputes: Who MayOwn the Undersea Oil? Many of the book's assets make it a valuable con-tribution to the literature. First, the extensive footnotes reveal the author'sexhaustive research. Second, Professor Ma even devoted a lengthy chapter(Ch. 6) on the "Relevance of the Peking-Taipei Rivalry: The 'DomesticAspect' of the Seabed Dispute," which evidences the author's effort to"leave no stone unturned." Third, the seven tables and twenty maps in theappendix, the selected bibliography, and the list of cases are also useful notonly for understanding the arguments the author presents but also as gen-eral reference.The completion of Dr. Ma's thesis closely coincided with the adoptionof the 1982 UN Convention on the Law of the Sea. It has also been fol-lowed by the delivery of a series of maritime boundary judgments by theInternational Court of Justice. The World Court decided the Libya-Tunisiacase of 19821 prior to the publication of this volume, and the Gulf of Mainecase of 19842 between Canada and the United States shortly afterwards.Naturally, the author draws extensively from these precedents as well asfrom the two earlier cases, namely the North Sea cases of 1969' and theAnglo-French case of 1977.4 A fifth precedent, namely the Libya-Maltacase of 1985," is too new for the author to have been able to refer to.The author argues primarily from the standpoint of continental shelfboundary delimitation. In doing so, he makes a point of basic impor-tance-that is, the relationship between a continental shelf boundary andan exclusive economic zone boundary between coastal states, adjacent or1. Concerning the Continental Shelf (Tunisia v. Libyan Arab Jamahiriya), 1982 I.C.J. 18(Judgment of Feb. 24), reprinted in 21 I.L.M. 225 (1982).2. Concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can.v. U.S.), 1984 I.C.J. 246 (Judgment of Oct. 12), reprinted in 23 I.L.M. 1197 (1984).3. North Sea Continental Shelf (W. Ger. v. Den., W. Ger. v. Neth.), 1969 I.C.J. 3 (Judg-ment of Feb. 20), reprinted in 8 I.L.M. 340 (1969).4. Concerning the Delimitation of the Continental Shelf (U.K. v. Fr.), 18 R. Int'l Arb.Awards 3 (1977), reprinted in 54 I.L.R. 11 (1979) and in 18 I.L.M. 397 (1979).5. Concerning the Continental Shelf (Libyan Arab Jamahiriya v. Malta), 1985 I.C.J. 4(Judgment of June 3), reprinted in 24 I.L.M. 1189 (1985).(269)270 MD. JOURNAL OF INTERNATIONAL LAW & TRADE [Vol. 9opposite. This is a point which few other observers of the East China Seadisputes had discussed even briefly; the general assumption appears to havebeen that the two boundaries could not be other than identical. This re-viewer has once argued that the two boundaries need not always be thesame and that, within the context of the present law of the sea, it is con-ceivable for the two to be different. The reaction of other observers hasgenerally been negative.The author of the present volume concludes (p. 131) that "separateEEZ and continental shelf boundaries, though difficult to administer, arenot incompatible with the fundamental rationale underlying these two re-gimes." As a matter of fact, there have already emerged a number of prece-dents, that is, around Indonesia and between Australia and Papua NewGuinea. In the present issue, therefore, administrative convenience or incon-venience is irrelevant. The author is right.With regard to the relevance of the Tiao-yu-t'ai (Senkaku in Japa-nese) territorial dispute between China and Japan to the East China Seamaritime boundary disputes, the author comes up with a theory with whichmost other observers would seriously disagree. He has been consistently ofthe opinion that the territorial issue can be detached from the maritimeboundary issue. In this regard, two points could not be overlooked. First,China and Japan are involved in other territorial disputes with other coastalstates in the region: China with other coastal states of the South China Sea,namely with Malaysia, the Philippines, and Vietnam over the ownership ofthe Paracels and the Spratlys; and Japan with Korea over the Dokto(Takeshima in Japanese) in the Sea of Japan and with the Soviet Unionover the so-called Northern Four Islands northeast of Hokkaido. Thismeans that neither China nor Japan could isolate any of the territorial is-sues for settlement independently of other ones; any particular formula ad-vantageous to one claimant in one situation could very well prove to bedisadvantageous to it in another.Second, in East Asia where territories have seldom changed handspeacefully - perhaps with the exception of the Japan-Imperial Russiaswap of Sakhalin and the Kuriles in 1875 - national sentiments easilyflare up over territorial issues, a fact which the author is sufficiently awareof. As a result, in East Asia parties to such disputes are extremely cautiousnot to do anything ,that might imply a compromise in territorial issues. Thetwo parties have, in fact, tried to feel out the attitude of each other twicebut their endeavor failed even before they could test the merits of what theyhad in mind.6 In brief, a boundary issue could not be settled without firstsettling the ownership of what is claimed by both parties. The precedents of6. Japan Times, Nov. 1, 1979.PUBLIC INTERNATIONAL LAW"half-effect" or "full effect" to be given to obscure offshore islands withoutphysical value merely concern the legal status to be awarded to such is-lands, not the problems of their territorial ownership. The author's pointsare of course well taken, but this would be on the assumption that neitherChina nor Japan would insist on using any of the islands in dispute as base-points for the measurement of their continental shelf or EEZ limit. Theattitude of either party remains to be seen.Since the author's argument concerns itself with the continental shelfboundary, it is important to look at the East China Sea disputes with refer-ence to the EEZ regime. This is essential because of the particular geo-graphical circumstances of the region. Throughout the entire East ChinaSea, nowhere does the distance from one headland or island to anotherreach 400 nautical miles. In other words, if all the coastal states come upwith their 200-mile zones, the entire East China Sea falls under the EEZjurisdictions of the coastal states. A basic question arises here as to whyany of them would choose to argue over its continental shelf boundary withthe others, because it could claim what it wants under the EEZ regime.This assumption would presuppose that any of the coastal states wouldunlikely be interested solely in the mineral resources at the expense of theliving resources in the superjacent water column. Then a simple questionremains as to why a coastal state would opt for one instead of both. Ulti-mately, it can be argued that, with the adoption of the 200-mile EEZ re-gime finally at Montego Bay, Jamaica, on December 10, 1982, the basicissues in the East China Sea disputes were thrown into a new situationwhere the applicability of the equidistance rule for the settlement of theboundary disputes has been greatly enhanced, and on balance, this wouldbe more in Japan's favor than the other parties'.In closing, in spite of what has been noted above, this book is indispu-tably definitive in the literature on this topic, a standing that would not beaffected by a few factual errors. For instance, the Republic of Korea(ROK) did not sign the 1982 UN Convention of the Law of the Sea onDecember 10, 1982 (note 21, p. 5), but on March 14, 1983, for reasons notin need of elaboration here. Also, the Japan-Korea joint development zonedoes not lie entirely on the Japanese side of what would be the median-linebetween the two parties (ex. pp. 21 and 61); a fraction of it happens to lieon the other side as well. Australia and Indonesia also renegotiated their1972 boundary agreement relating the Timor Sea (p. 242), so that the au-thor's point on it would need to be reviewed.Choon-ho Park** Ph.D. in Public International Law, Edinburgh University; Professor of Law at KoreaUniversity; Director, East Asia Law of the Sea Institute.19851

Legal Problems of Seabed Boundary Delimitation in the East China Sea, by Ying-Jeou Ma, With a Foreword by Louis B. Sohn

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