China and the U.N. Convention on the Law of the Sea

Transcription

1 Yu Mincai China and the U.N. Convention on the Law of the Sea Yu Mincai* fter nine years of negotiations by 55 countries and international Aentities, the United Nations Convention on the Law of the Sea (Hereinafter referred to as the Convention ) was opened for signature on December 0, 982 in Montego Bay, Jamaica. The Convention lays down a comprehensive regime of law and order in the world s oceans and seas, establishing rules that govern all uses of the oceans and their resources. It is known as the constitution for the oceans and its historical position is second only to the United Nations Charter. 202 is the 30th anniversary of the signing of the Convention and the 8th anniversary of its entry into force. It is also the 30th anniversary of China s accession to the Convention and the 6th anniversary of its entry into force for the country. At this monumental moment in history, it is worthwhile to review China s contribution to the achievement of the Convention and reflect on the pros and cons of China vis-à-vis the Convention, so as to better explore ways and means of addressing future problems. I The United Nations Convention on the Law of the Sea, which was initiated by the United Nations Seabed Committee in 972, formally started at the Third United Nations Conference on the Law of the Sea in 973. This was the first time that China had participated in a large-scale international legislative activity following the recovery of the Chinese legitimate seat in the United Nations in 97. Since then, China has got involved in the whole process of the conference and made great * Yu Mincai is an associate professor at the Law School of Renmin University of China. He is mainly engaged in the study of international law. 56 CIR Vol. 22 No. 6

2 China and the U.N. Convention on the Law of the Sea contributions to the formulation, adoption and universality of the Convention. Firstly, many of China s legitimate propositions on the marine-related rights and uses of the ocean have become rules of the Convention or are reflected in the Convention. They are respectively reflected in the articles on the territorial waters (Articles 2-3, Articles 5-6, and paragraphs and 2 of Article 9), on the exclusive economic zones and continental shelves (Articles 55-58, paragraph 2 of Article 62, Articles 69-70, Article 73, Articles 77-79, Article 74 and paragraph and 3 of Article 83), on the high seas (Articles 87, 92, 6, 8, 9 and 25); and on the international seabed areas (Articles 36-37, Articles 4-43, Article 45, Articles and 70). Moreover, Article 92, Article 94, Articles , Articles 23-28, Article 220 and Article 235 have accepted China s recommendations on the protection of the marine environment; Articles 43, 242 and have recognized the Chinese position on marine scientific research; Articles and Article 283 tally with China s argument on the settlement of maritime disputes through negotiation; and Articles partly meet China s concerns on the compulsory settlement of maritime disputes by a third-party. Secondly, China has supported the ideas and proposals of the developing countries, and promoted the innovation of traditional laws of the sea and the establishment of some new related laws of the sea. The Third U.N. Conference on the Law of the Sea was held at a time when vast developing countries were making strong demands for reforming the traditional law of the sea and establishing new rules and regulations on the order of the sea. These countries had put forward some new revolutionary concepts and initial proposals and amendments relating to institutional construction, such as common human inheritance, exclusive economic zones and archipelagic states, and they had proposed a motion to reform the system governing the traditional law of the sea such as the definition of 北京大学法律系国际法教研室编 : 海洋法资料汇编, 人民出版社,974 年, 第 7,4,55,65-66,73-74,78-82 页 ; 我国代表团出席联合国有关会议文件集 (978.-6), 人民知识出版社,978 年, 第 37 页 ; 中国代表团出席联合国有关会议文件集 (979.-6), 世界知识出版社,979 年, 第 82,90-92 页 ; 中国代表团出席联合国有关会议文件集 ( ), 世界知识出版社,982 年, 第 277 页 CIR November/December

3 Yu Mincai the term continental shelf. China has consistently and resolutely stood on the side of the third world countries, supported their reasonable propositions, and opposed some big maritime states that have tried to obstruct or create obstacles for the establishment of relevant systems. For example, China, while firmly supporting the stand on the revenue-sharing of resources of the continental shelf beyond 200 nautical miles, and Group 77 s position on area, criticized part of the Soviet Union s views on the exclusive economic zones of the high seas, and expressed its serious concern over the U.S adoption of a law on deep-sea solid mineral resources that may affect areas. 2 It is because of the joint efforts of China and other developing countries that a new comprehensive convention on the law of sea that covers archipelagic states, exclusive economic zones, area regime, the development of marine technology and transfer, as well as the territorial waters and continental shelves, was formulated and eventually passed at the third Conference on the Law of the Sea. Thirdly, China, while actively participating in all consultation group discussions, adhered to the principle of flexibility, promoted the smooth conduct of the legislative process, and helped to achieve the objective of the new Law of the Sea. From the outset, China maintained a positive and serious attitude in order to reach a new Convention on the Law of the Sea. When China attended the Seabed Committee meetings, it proposed three working papers on the national states jurisdiction over their territorial waters, marine scientific research, and international waters. These papers expounded on China s principled stance on the issues related to the Law of the Sea. During the Conference on the Law of the Sea, China actively participated in the discussions of all consultative groups, and together with another 5 countries including Algeria it made a draft on the requirements of marine scientific research works. China adhered to the principles in all consultations and negotiations, and resisted some maritime powers attempts to monopolize the oceans. For example, at the Eleventh Conference, on the According to Article of U.N. Convention on the Law of the Sea, Area means the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction. 2 中国代表团出席联合国有关会议文件集 ( ), 第 页 58 CIR Vol. 22 No. 6

4 China and the U.N. Convention on the Law of the Sea question of the U.S. demanding to re-examine the practice of the draft Convention, the Chinese representative noted that: the principle of common human heritage as well as the basic structure of the seabed development regime, as confirmed by the draft convention, cannot be changed. Otherwise this would undermine the purpose and principles of the Convention and upset the balance of the whole package of the draft Convention. We fully support the principled stance elaborated by Pakistan on behalf of the Group of 77. At the same time, in order to ensure an early realization of the objectives of the conference, China took an inclusive and open attitude, and agreed with the terms of the negotiating text, and even accepted or did not oppose the terms that were contrary to China s position. For example, on the procedure for voting in the Council of the Authority, China proposed that the substantive issues should be decided by the two thirds majority voters who attend and participate in the decision, and opposed weighted votes or any disguised veto system. However, paragraph 7 of Article 6 of the new text, proposed by the Coordinator of the Group of 2, stipulated that different voting procedures would be used in addressing different kinds of problems. As a response, the Chinese representative noted: we are not satisfied with this solution, but given the actual situation, as long as the majority of the countries accept it, we will not oppose on principle. 2 As an adherence to the spirit of the package agreement, China voted in favor in approving the Convention on April 30, 982. Finally, China participated in all the informal consultations on Part XI of the Convention that were chaired by the U.N. Secretary-General in , and voted in favor. It also signed and ratified the 994 Agreement relating to the implementation of Part XI of the Convention. The Agreement had solved the problem of Part XI of the Convention, concerning member states costs, decision-making procedures of the Enterprise Agency, the Assembly of the Authority and the Council, reviewing conferences, technology transfer, production policy, economic 中国代表团出席联合国有关会议文件集 (982.-6), 世界知识出版社,983 年, 第 79 页 2 中国代表团出席联合国有关会议文件集 ( ), 第 页 CIR November/December

5 Yu Mincai assistance, and the contract s financial terms, thus paving the way for all major industrialized countries to accede to the Convention. China s ratification in 996 was in itself an important contribution to the universality of the Convention. II Since China has signed and ratified the Convention, what rights and interests can it derive from it? These can be divided into two categories: political interests and legal rights and interests. The Convention entering into force has helped China to safeguard its maritime rights and interests, and to expand its maritime jurisdiction. It is also conducive to safeguarding the status and long-term interests of China as one of the pioneer investors. The convention has facilitated China s positive role in international marine affairs, and it has also helped to improve the image of our country. The above rights and interests are accompanied by some disadvantages and adverse effects produced by the Convention. China has a clear understanding of the status quo in this regard. After the adoption of the Convention, Shen Weiliang, deputy head of the Chinese delegation, stressed that quite a few provisions of the Convention are imperfect, and even have serious defects. These are reflected in the following three ways: () The draft resolution on preparatory investment in some areas has offered major industrialized countries and their companies a number of privileges and priorities; (2) the institutional problems relating to warships navigating through the territorial waters of sovereignty states; (3) the definition of the continental shelf, as well as the maritime demarcation between geographic opposite and adjacent countries. Without a doubt, the Convention is beneficial to China as a whole. This has become the common view among the mainstream. After all, China has ratified the Convention. Nevertheless, there are disputes as to the overall evaluation of the pros and cons for China. In fact, some factors that used to be regarded as defective but not regarded as serious problems, at least for the time being are so. The Resolution of the preparatory 中国代表团出席联合国有关会议文件集 (982.-6), 第 90-9 页 60 CIR Vol. 22 No. 6

6 China and the U.N. Convention on the Law of the Sea investments on activities of poly-metallic nodules does give a few industrialized countries the status of pioneer investor, but all those developing countries or companies that have both met the conditions and signed the Convention can also obtain this status. It is under such a provision that in 99 China was registered as a pioneer investor in the international seabed areas. Further, although China has always insisted that foreign warships navigating through the territorial waters of other countries should obtain prior approval or give prior notice, it is doubtful whether or not this position can truly ensure the safety of China s territorial waters, and it may not meet China s growing needs. Before China s ratification, Professor Zhao Lihai reminded us: In the long run, according to the principle of reciprocity, the requirement of foreign warships navigating through the territorial waters to gain prior approval may not be beneficial to our country. China s dissatisfaction with the definition of the continental shelf also relates to form rather than substance, as China recommended that the words extend to be substituted with no more than when revising Article 76, and that in the definition of continental shelf, is constituted by the shelf, slope, and land-base be inserted in the adverb as is generally constituted. 2 Regarding the maritime demarcation issue, both Article 74 and Article 83 of the Convention emphasize that the related parties should seek to make their demarcation and reach a fair result through mutual consultation and negotiation. These principles are not adverse at all to China despite their claim that fairness is not absorbed into the provisions. Indeed, the principles and institutions provided by the Convention are beneficial to China. For example, China has achieved a Class A membership in the Council of the International Seabed Authority (i.e. a consumption country of mineral resources). In 200 and 20, China and the International Seabed Authority signed two contracts for the exploration for polymetallic nodules in the middle of the Pacific Ocean of 75,000 km2 and the exploration for polymetallic sulphides in the south-west Indian 赵理海 : 联合国海洋法公约 的批准问题, 北京大学学报 ( 哲学社会科学版 ), 99 年, 第 4 期, 第 59 页 2 中国代表团出席联合国有关会议文件集 (982.-6), 第 85 页 CIR November/December 202 6

7 Yu Mincai Ocean ridges of 0,000 km2. In July 202, the ISA approved China s applications for exploration for cobalt-rich ferromanganese crusts in the western Pacific. However, those favorable evaluations ignore the following two important facts: first, although China can advocate and exercise these rights and interests, they can be advocated and exercised by all coastal states, even if they are not a party, because the Convention has codified all customary international laws of the sea. For example, the 988 U.S. territorial waters bulletin extended its territorial waters to 2 nautical miles; the 999 Contiguous Zone Announcement defined all sea areas within 24 nautical miles from the baselines of the coast as belonging to its contiguous zone; and the U.S. announcement of an exclusive economic zone in 983 claimed a 200-nautical-mile exclusive economic zone and its sovereign rights and jurisdiction. As such, no new institution set up by the Convention has provided China with special protection. Except for the archipelagic waters, the jurisdiction clause on scientific research in the exclusive economic zone and continental shelf does not enable China to effectively manage the frequent measurement activities of the U.S. Navy ships in China s exclusive economic zone and continental shelf. In respect of the traditional freedom of fishing on the high seas, China cannot really enjoy this freedom either. This is because freedom to fish on the high seas is subject to the restrictions of the treaty obligations (Article 6). Article 8 of the Convention allows related countries to reach an agreement of cooperation in the conservation and management of biological resources of the high seas, and to establish sub-regional or regional fisheries organizations. Currently, there are quite a few global and regional fisheries organizations with international management and advisory functions. Those with management functions include the Commission for the Conservation of Antarctic Marine Living Resources, the International Commission for the Conservation of Atlantic Tunas, the Indian Ocean Tuna Commission and the Western and Central Pacific Fisheries Commission, etc. An important function of these organizations is 中国常驻联合国副代表张义山在第五十九届联大全会关于 海洋和海洋法 : 秘书长的报告 议题的发言,2004 年 月 6 日,Web. 5 September 202, < CIR Vol. 22 No. 6

8 China and the U.N. Convention on the Law of the Sea to decide the total allowable catch quota of its members on the relevant high seas. Since China is not a member of some fisheries organizations, Chinese fishermen have actually been excluded from fishing in these sea areas. Further, some sea areas that are to be expanded to become China s exclusive economic zone and continental shelf are actually proving to be a veritable soft underbelly or troublemaker for our country. Firstly, despite the Convention that provides that the coastal states can claim an exclusive economic zone of 200 nautical miles from the baselines of their territory and a continental shelf of 350 nautical miles from their territorial baseline or the 00-mile continental shelf with 2500 meters in depth under the sea surface, plus the 998 Chinese Exclusive Economic Zone and Continental Shelf Law which also advocates such marine rights, due to geographical restrictions and the question of maritime neighbors competing to advocate for a maximum range of maritime rights in accordance with the Convention, there appear to be overlapping claims of exclusive economic zones and continental shelf rights in the Yellow Sea, the East China Sea, the South China Sea and the Beibu Gulf. This has led to maritime delimitation disputes between China and other countries. In this regard, it is only due to these new provisions relating to the expansion of sea areas under national jurisdiction that delimitation disputes over exclusive economic zones and the continental shelf between China and its maritime neighbors have arisen. Such demarcation also means that China cannot really enjoy a maximum extent of exclusive economic zone and continental shelf. Therefore, the argument that the provisions of the Convention and Chinese claims will make the sea areas under China s jurisdiction expand to 3 million square kilometers is purely theoretical, and out of the geographic reality of China. In fact, China has never released its published geographic coordinates of the outer limits of its 200-nautical-mile exclusive economic zone, while France, the Netherlands, Israel and other countries have all defined such external boundaries. Facing a new round of competition of enclosure for the continental shelves 全国人大环境与资源保护委员会关于第八届全国人大第五次会议主席团交付审议的代表提出的议案审议结果的报告, 中国人大网,Web. 5 September 202, < CIR November/December

9 Yu Mincai beyond 200 nautical miles in the 2st century, China has no choice but to become a bystander. Until June 202, more than 5 countries, including Japan, the Philippines, Vietnam and Indonesia, have alone or in combination submitted to the U.N. Commission on the Limits of the Continental Shelf 6 applications for the outer limits of their continental shelves beyond 200 nautical miles, while China has only submitted to the U.N. Commission some preliminary information about the outer limits of its continental shelf beyond 200 nautical miles in the East China Sea, and this also caused an objection from Japan. With the escalation of the Sino-Japanese dispute over the Diaoyu Islands in September 202, China decided to submit to the U.N. Commission on the Limits of the Continental Shelf an application for the outer limits of the continental shelf beyond 200 nautical miles in the East China Sea. But it is almost impossible for the application to be considered by the commission. Thus China s disadvantage in claiming such sovereign rights provided by the Convention can hardly be remedied. Secondly, the exclusive fishery jurisdiction over the exclusive economic zone has become a source of contradiction and even violent conflicts between Chinese coastal fishermen who seek to change their traditional way of life and the relevant national states. As the coastal states have announced their 200-nautical-mile exclusive economic zones one after the other, so the scope of activities of Chinese fishermen has been steadily reduced, and their fishing activities also face more risks and uncertainties. Because of the fisheries agreements that China signed with Japan and South Korea as well as the Sino-Vietnamese Agreement on the Delimitation of the Beibu Gulf Territorial Sea, the Exclusive Economic Zone and the Continental Shelves, many Chinese fishermen have been driven out of their traditional fishing grounds, and a large number of them have been forced to change their profession. For example, after the signing of the Beibu Gulf delimitation agreement, China s Guangdong Province has reduced 32,000 square kilometers of traditional high-yielding fishing grounds, over 6600 fishing boats have been forced to withdraw from the Beibu Gulf fishing-ground, and over 00,000 fishermen need to be 64 CIR Vol. 22 No. 6

10 China and the U.N. Convention on the Law of the Sea re-employed. Also, because of the Sino-Japanese and China-ROK fisheries agreements, in Zhoushan City, Zhejiang Province alone, more than 3,000 large-sized fishing vessels and tens of thousands of fishermen have to withdraw from the open sea fishing-grounds. 2 Chinese fishermen in other countries exclusive economic zones have often been chased, detained, fined or imprisoned, and even lost their lives. In July 202, a Russian patrol boat shelled Chinese fishing boats, resulting in one Chinese crew member going missing; and in November 20, a South Korean policeman was stabbed to death by Chinese fishermen. These are two unfortunate examples of this nature. Thirdly, the concept of the exclusive economic zone and the continental shelf has become the legal basis for neighboring countries to claim sovereignty over the islands in China s territorial waters and their source of law for challenging China s border intermittent lines in the South China Sea. The exclusive economic zone and the continental shelf system provided by the Convention are usually associated with the exploration, development, management and conservation of the resources in these waters, but they have been unfortunately misconstrued by the neighboring countries as a legal basis for their occupation of the Chinese islands and reefs in the South China Sea. These countries, such as Vietnam, the Philippines and Malaysia, claim that these islands and reefs are located in their continental shelf or exclusive economic zones, thus claiming their sovereignty over these islands and reefs accordingly. They also challenge the legal status of China s intermittent boundary lines in the South China Sea, claiming that these lines do not conform to the Convention. After China adopted its Exclusive Economic Zone and Continental Shelf Act in 998, Vietnam declared that it does not recognize any of the so-called historical rights as they do not comply with international law and violate Vietnam s sovereignty and sovereign rights, as well as Vietnamese legal rights in the East Sea (i.e. the South China Sea) and on the continental 关于继续扶持沿海渔民转产转业保持渔区稳定的决议,200 年 月 22 日广东省第十一届人民代表大会常务委员会第十六次会议通过 2 张奇志 : 中国渔都 引导渔民转产转业, 新华社,2002 年 5 月 0 日 CIR November/December

11 Yu Mincai shelf. While responding to the Chinese note on the Malaysian-Vietnamese joint application submitted to the U.N. for the outer limits of their continental shelf beyond 200 nautical miles in May 2009, Vietnam said: the Chinese sovereignty claims over the islands and their subsidiary waters in the East Sea displayed in attached map (i.e. the intermittent line map) have no legal, historical and factual basis, and therefore are illegal and invalid. Indonesia claimed that the so-called nine-dash line map attached to the Chinese note apparently lack international legal basis and is tantamount to disrupting the 982 United Nations Convention on the Law of the Sea. The Philippines responded that the Chinese claims over the related sea-beds and subsoil displayed in its so-called 9-dash line have no basis in accordance with international law, in particular with the United Nations Convention on the Law of the Sea. Vietnam and the Philippines expressed similar positions in response to China s note on the Vietnamese application to the U.N. for the outer continental shelf in the north of the South China Sea. 2 Philippine Foreign Minister Rosario said in 20 that China s 9-dash line claim is completely illegal, and this line is arbitrary and lacks any foundation or effectiveness in accordance with international law, in particular the United Nations Convention on the Law of the Sea. 3 At the 2st session of the states parties of the Convention, Vietnam reiterated its stance against the 9-dash line. It is the existence of sovereignty disputes over the islands and reefs in the South China Sea and maritime delimitation disputes there that gives the United States an excuse to maintain freedom of navigation in the South China Sea, such that the U.S. has been able to intervene in the South China Sea disputes. If the 958 Geneva Conventions on the Law of the Sea are still valid, Erik Franckx and Marco Benatar, Dots and Lines in the South China Sea: Insights from the Law of Map Evidence, Asian Journal of International Law, Vol. 2, 202, p Submissions, through the Secretary-General of the United Nations, to the Commission on the Limits of the Continental Shelf, pursuant to article 76, paragraph 8, of the United Nations Convention on the Law of the Sea of 0 December 982, Web. 2 August 202, < htm/>. 3 Philippines/China: China s 9-Dash Line is crux of the problem in WPS, says DFA chief, Asia News Monitor (Bangkok), August 8, CIR Vol. 22 No. 6

12 China and the U.N. Convention on the Law of the Sea the above disputes and distresses would very likely be avoided. As this convention did not have provisions for exclusive fishing regimes, and stipulated a technical developable continental shelf with just 200 meters isobaths, China and the surrounding maritime neighbors would have no disputes over the exclusive economic zone demarcation, and there would be no Sino-Japanese dispute on the continental shelf in the East China Sea either. In such a case, no country would have the excuse of questioning China s intermittent line in the South China Sea, and the Chinese fishermen would not have experienced or would have greatly reduced the risks they encountered in the exclusive economic zones of foreign countries. Regrettably, however, China took a complete denial position toward the Geneva Conventions on the Law of the Sea at the Seabed Committee meeting, and the new system of national jurisdiction over the waters that China had so firmly supported and consented to, and has got itself trapped itself in a passive position. The United States, on the contrary, strongly opposed the establishment of an exclusive economic zone at the Third United Nations Conference on the Law of the Sea, but ultimately it has become the exclusive economic zone s biggest beneficiary. As early as 995, the United States announced the geographical coordinates of the outer limits of its 200-nautical-mile exclusive economic zones from the U.S. continent and all its islands. The United States is also the biggest winner of interests relating to the continental shelf beyond 200 nautical miles. After the U.S. announced its major reservations on the planned deep seabed regime, the Third Conference on the Law of the Sea was forced to make modifications to take into account U.S. concerns, and a seat was specially reserved for the U.S.A. in the Council. In order to attract further U.S. participation in the Convention system, the 994 implementation agreement again significantly modified the area regime system. Moreover, the U.S. demands for navigation and over-flight freedom in international straits and the exclusive economic zones, for the freedom of scientific research, and for non-compelling transfer of technologies have also been met. Thus it can be said that the Convention is merely one of the international treaties that have purely reflected U.S. interests and requirements. Even so, the CIR November/December

13 Yu Mincai United States still voted against the Convention: it has neither signed nor ratified it. The other three countries that voted against the Convention on the pretext of opposing the Third Conference on the Law of the Sea were Israel (given the Palestine Liberation Organization observer status), Venezuela (did not agree with the terms of the exclusive economic zone and maritime delimitation of the continental shelves between coast adjacent or opposite countries), and Turkey (the Convention did not provide adequate protection for a special geographical situation). In short, the formulation and universality of the Convention, as well as its continuing to be the foundation of the international community in order to discuss the problems of the oceans and the law of the sea, are inseparable from China s contribution. However, the grim fact is that the exclusive economic zone and continental shelf that have been firmly supported by China have caused serious disadvantages and distress for the latter. III The real and unavoidable adverse impacts of the Convention on China have caused Chinese scholars to rethink the relationship between the two. One of China s possible choices is to exit the Convention. In terms of the law, to exit the treaty is a legitimate option that the Convention allows a State party to choose. It was also supported by China at the Third Conference on the Law of the Sea. 2 Article 37 of the Convention stipulates that a State Party may denounce this Convention by written notification to the Secretary-General of the United Nations, and may state its reasons. Unspecified reasons will not affect the validity of the exit. As such, the exit provision has provided China with a potential legal choice to redefine its relationship with the Convention. However, China cannot, and will never take this approach, for the following three reasons at the very least: () China has highly appraised and valued the Convention s role in international marine affairs, and has actively participated in the work of the 专家称 : 南沙遭侵中国可退出联合国海洋法公约, 环球时报,202 年 7 月 9 日 2 中国代表团出席联合国有关会议文件集 (980.-6), 世界知识出版社,98 年, 第 页 68 CIR Vol. 22 No. 6

14 China and the U.N. Convention on the Law of the Sea three institutions of the Convention the International Seabed Authority, the International Tribunal for the Law of the Sea and the Commission on the Limits of the Continental Shelf. China has also participated in all conferences held by those parties and the informal consultative processes of the U.N. ocean affairs and the law of the sea, as well as other related institutions involving the Convention. These include the informal ad hoc Working Group for the conservation of biodiversity in waters out of national jurisdiction. In short, China has been committed to maintaining the integrity and authority of the Convention and has even put forward the concept of the harmonious ocean. At the meeting commemorating the 30th anniversary of the Convention s opening for signature, the Chinese representative said: the Convention has set up the basic legal framework for the modern maritime order and is the main source of the modern law of the sea.... Over the past 30 years, the Convention has achieved obvious achievements.... The basic principles and rules established by the Convention are still showing strong vitality. (2) The Convention has been widely accepted by the international community, and its principles and rules are universally implemented. Currently, the signatories to the Convention have reached 62, including all of China s maritime neighbors, and the United States is likely to accede to the Convention in the near future. China s exit would not be very helpful. Moreover, there is no evidence indicating that any state party is intending to exit. (3) As China signing and ratifying the Convention is a serious international legal act, its exit would cause lots of negative political consequences. Apparently, China can seek to solve the related problems while maintaining its current relationship with the Convention. There are three ways in which to do this: () to start relative procedures established by the Convention regime; (2) to choose a mode of implementation of the Convention; (3) to practice an applicable entity regime stipulated by the Convention. The procedures the Convention can provide are to revise relative provisions (Articles 32 ands 33) or to hold a conference of states 常驻联合国副代表王民大使关于纪念 联合国海洋法公约 开放签署 30 周年的发言,202 年 6 月 8 日,Web. 6 September 202, < hyyfy/t htm/>. CIR November/December

15 Yu Mincai parties (Article 39). In any event, China has no opportunity to take advantage of these procedures. Firstly, the conditions for the start of the amendment procedures relating to the exclusive economic zone and the continental shelf cannot be achieved, because convening an amendment meeting must be agreed by no less than half of the states parties. Further, it is almost impossible to adopt a simplified procedure unless there is no any dispute on the amendment among the member states or no any state party opposes the proposal of starting a streamline procedure. Moreover, the amendment procedure has never been used since the entry into force of the Convention. Secondly, the Conference of the parties is not responsible for the revision of the Convention. Its main responsibility is to elect the judges of the International Tribunal for the Law of the Sea and the members of the Commission on the Limits of the Continental Shelf, and to consider the financial and administrative matters of the above two bodies and the International Seabed Authority. The mode of implementation agreements is a procedure for revising relative regimes established by the Convention during the process of its implementation. The practice of this procedure includes the 994 Agreement relating to the implementation of Part XI of the Convention and the 995 Agreement relating to the implementation of the provisions of the Convention that relate to the conservation and management of straddling fish stocks and highly migratory fish stocks. China, however, cannot effectively take this approach either, as a motion relating to modifying the regime of the exclusive economic zone and continental shelf is unlikely to cause a wide range of positive responses. To face up to the adverse effects and distresses caused by the relative regimes established by the Convention and to better apply these regimes and institutions to mitigate or overcome them is the only real option available to China. As such, China should step up its efforts in the following ways: firstly, it should seek to set fisheries agreements with the relevant countries and to join those global or regional fisheries organizations that China has not yet acceded to in order to create a legitimate fishing environment for Chinese fishermen abroad. Although the exclusive economic zone system enables a coastal state to exercise 70 CIR Vol. 22 No. 6

16 China and the U.N. Convention on the Law of the Sea sovereign rights over the fisheries resources in its exclusive sea area, it also stipulates that the coastal state has obligation to allow other countries to properly share these resources. According to paragraph of Article 62, the coastal state shall promote the optimum utilization of biological resources in the exclusive economic zone. Paragraph 2 specifically stipulates that coastal states that are unable to catch all allowable catch should allow other countries to fish the rest of the total allowable catches, through agreements or other arrangements. Paragraph 3 also provides that coastal states, when making a permit, should consider the needs of the citizens of other countries customarily fishing in the EEZ. Thus geographically disadvantaged countries, in accordance with Article 70, have the right to participate in the development of the appropriate remaining parts of the biological resources in the exclusive economic zone of coastal states of the same sub-region or region, on an equitable basis. These terms become the legal basis of negotiation between China and related countries in order to reach agreements on access for Chinese fishermen. Article 5 also provides this potential. It stipulates that the archipelagic state shall recognize adjacent countries traditional fishing rights in certain areas of its archipelagic waters. The exercise of such rights and the terms and conditions of such activities should be dealt with through bilateral agreements. If we can prove that China enjoys traditional fishing rights in the archipelagic waters of the Philippines and Indonesia, so China can negotiate with them to reach such agreements. In order to win more fishery quotas for Chinese fishermen, China should also systematically accede to the Commission for the Conservation of Southern Bluefin Tuna, the International Pacific Halibut Commission (IPHC), the Northwest Atlantic Fisheries Organization, the North Atlantic Salmon Conservation Organization, the North East Atlantic Fisheries Commission, the North Pacific Anadromous Fish Commission, the South East Atlantic Fisheries Organization and the South Pacific Regional Fisheries Management Organization, and seek to upgrade its non-party status of cooperation in the Inter-American Tropical Tuna Commission into the status of formal member. Secondly, China should try to stop related countries unilateral request for the expansion of their continental shelves beyond 200 nautical CIR November/December 202 7

17 Yu Mincai miles in accordance with the rules of procedure of the Commission on the Limits of the Continental Shelf, and actively participate in the formulation of revenue-sharing arrangements relating to the development of the resources of the outer continental shelves. According to Article 76 of the Convention, coastal states defining the outer limits of the continental shelf beyond 200 nautical miles shall be governed by the Commission on the Limits of the Continental Shelf. That is, they should submit their information on the outer limits of the continental shelf beyond 200 nautical miles to the Commission on the Limits of the Continental Shelf for review. The outer limits of the continental shelf defined by a coastal state shall be valid and binding only on the basis of the recommendations of the Commission. Therefore, a coastal state itself cannot determine the outer limits of the continental shelf without the recommendations of the Commission on the Limits of the Continental Shelf. Annex I to the Rules of Procedure of the Commission on the Limits of the Continental Shelf clearly stipulates this negates procedure. It provides that the related countries have jurisdiction over matters relating to the disputes that may arise in the delineation of the outer limits of the continental shelf. If land or maritime disputes arise, the Commission should not consider and identify the submission raised by any of the parties unless it has been agreed beforehand by all the parties concerned. In 2008, after Japan submitted an application to the Commission on the Limits of the Continental Shelf for the outer continental shelf of the Okinotorishima reef, China and South Korea argued that the Okinotorishima reef was not an island that could generate a continental shelf stipulated by Article 2 of the Convention, and thus the two countries made use of the rules of procedure and raised objections to the Japanese proposal. In 202, the 29th session of the Commission on the Limits of the Continental Shelf decided that until the problems relating to the communication between China, South Korea, Palau and the United States are resolved, the Committee will not take action vis-à-vis the southern Kyushu-Palau ocean ridge proposed by the 72 CIR Vol. 22 No. 6

18 China and the U.N. Convention on the Law of the Sea Japanese Submission Subcommittee. China cannot become merely a defender of Area, but can also benefit from the development of the resources provided by the revenue-sharing system of the outer continental shelf. According to Article 82 of the Convention, the coastal states that are engaged in the development of non-biological resources of the continental shelf beyond 200 nautical miles, should, after the first five years of production from a mine site, submit an annual percentages payment or a contribution to the International Seabed Authority that will be allocated to each state party in accordance with the standards of fair-sharing. In the future, China should actively participate in the work of the Authority in this respect in order to seek a benefit-sharing arrangement that will more or less balance its losses in the outer continental shelves. It is estimated that oil exploration in the sea areas within the outer limits of the continental shelves may start as early as 205. Some countries have already tried to draw attention to the problem of the benefits-sharing system provided by Article 82 and its implementation to schedule, though the Secretary-General of the Authority claims that it is still too early to consider this issue as the development or exploitation of the resources within the area has not yet begun. 2 Nevertheless, China would do well to prepare related theoretical research and to design programs in this regard. Thirdly, China should resolutely resist any attempt to confuse the nature of the Convention, should stress its non-relationship with territorial sovereignty, and attempt to make it clear that territorial sovereignty and the uses of the ocean and marine resources should apply different rules of law. From the outset, the Convention explained its purpose as being: with due regard for the sovereignty of all States, in order to setup a legal order for the seas and oceans that will facilitate international communication, and promote the peaceful uses of the seas and oceans, the equitable and 大陆架界限委员会的工作进展,CLCS/74,202 年 4 月 30 日, 第 4-5 页,Web. 6 September 202, < N23263.pdf?OpenElement/>. 2 联合国海洋法公约缔约国会议 : 第二十一次缔约国会议的报告,SPLOS/23, 20 年 6 月 29 日, 第 2 页 CIR November/December

19 Yu Mincai efficient utilization of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment. As such, the Convention is a law governing the legal uses of the ocean and marine resources on the basis of national sovereignty rather than a law used for claims on territorial sovereignty. It is simply because of the principle of land controlling ocean that the coastal States are able to claim their rights to the exclusive economic zone and continental shelves. However, the exclusive economic zone and continental shelf must not in turn become the basis for control of land. When attending the U.N. General Assembly on the Oceans and the Law of the Sea, the Conference of the Parties, as well as other occasions such as the informal consultation process, China clearly states that the Convention is completely unrelated to territorial claims, and refutes the neighboring countries claims of sovereignty over the islands and reefs in the South China Sea and their practices of confusing right and wrong in their interpretation of the Chinese intermittent boundary line, with the express purpose of misleading the application of the Convention. It also does its best to ensure that the Chinese point of view is reflected in the relevant U.N. documents. At the same time, China itself should separate out those different rules of law that are respectively applicable to marine rights and to the interests and the issue of sovereignty and the territorial zone. In particular, China should avoid such vague statements as: China is ready to work with relevant countries in accordance with generally accepted international laws and modern laws of the sea, including the basic principles and legal systems established by the 982 U.N. Convention on the Law of the Sea, and properly resolve the South China Sea disputes through peaceful negotiations. 2 The core issue of the South China Sea dispute is the territorial sovereignty dispute triggered by the illegal occupation of part of China s Nansha islands and reefs. The overlapping claims of maritime rights and interests in relevant waters are merely subsidiaries disputes. The See: the PREAMBLE of the United Nations Convention on the Law of the Sea. 2 中国在南海问题上的的基本立场以及解决南沙争端的政策主张,2000 年 月 22 日,Web. 2 August 202, < 2305/t0650.htm/>. 74 CIR Vol. 22 No. 6

20 China and the U.N. Convention on the Law of the Sea applicable law for the former is territorial law, and the law suitable for the latter is the Convention. The intermittent line issue is related to territorial integrity and sovereignty and has nothing to do with the Convention. Moreover, when the intermittent lines came into being, the Convention was some way from being generated. As such, China should unequivocally declare the legal status of the intermittent lines and separate it from the Convention, actively seeking to create an international consensus. Fourthly, China should treat marine genetic resources of the area with caution, as well as related international legislative initiatives, and put itself in a position to be able to reap the largest benefits. Marine genetic resources (such as hydrothermal vents and cold seeps) are newly discovered resources of recent years that may prove useful in food security, agriculture, health care, industrial applications, environmental remediation and bio-fuels production. China should think seriously about the legal status of such resources and attributions, as well as the basis of international legislation in this area. According to Article 33 and Paragraph 2 of Article 37 of the Convention, the resources within the area are limited to the mineral resources in the seabed or in their original location, and all the rights to these resources belong to all mankind, and are exercised by the International Seabed Authority on behalf of mankind. As such, maritime heritage resources do not belong to the category of resources in the area, and are not subject to the jurisdiction of the International Seabed Authority. However, at the meetings of the U.N. General Assembly, the U.N. Informal Consultative Process and the sessions of states parties, some developing countries argue that the role of the Authority should not be limited to mineral resources, but should cover all resources, including marine genetic resources within the area. Marine genetic resources are part of the property commonly inherited by humanity, and the resulting benefits should be shared by all humanity rather than enjoyed in accordance with the principle of first-come first-served, as advocated by Nigeria, Trinidad and Tobago, Senegal, and Cuba. Singapore, Indonesia, Argentina, as well as some other countries, advocate that a legal system governing marine genetic resources within the area should be set up as soon as possible, and that all such multilateral agreements must be CIR November/December

21 Yu Mincai developed in accordance with the Convention. For example, in 20, the Informal Open-ended Ad Hoc Working Group recommended that the General Assembly should initiate a process to discuss the possibility of developing a multilateral agreement under the Convention for the conservation and sustainable use of biodiversity, in particular marine genetic resources in the areas. China has not expressed a clear stance on the legal status of marine genetic resources within the area, although in a working paper submitted to the Seabed Committee it advocated that all the resources of the international waters belong to the people of the whole world, in principle. 2 At the recent U.N. forums, China has argued that at the current stage we should step up all related research because as things stand now, understanding of the genetic resources of the deep sea is not at a level at which the international community is sufficiently able to develop a legal system governing related research activities. At the same time, China also believes that all measures and means to conserve the marine biodiversity within the area should be identified within the framework of the Convention and other relevant international conventions, and the need to take full account of the current regime for high seas and the international seabed, as well as to make full use of the roles of the existing international organizations and institutions. 3 China supports the UN General Assembly to initiate the process described above, and stresses that the related work should be carried out gradually, taking full account of the needs of all countries, in particular developing countries, for the rational use of marine biological resources. 4 Given that around 90% of the patents related to marine genetic resources belong to ten of the world s developed countries, this would appear to imply that China should stand on the side of the above 联合国海洋法公约缔约国会议 : 第二十一次缔约国会议的报告,SPLOS/23, 20 年 6 月 29 日, 第 5 页 ; 大会第六十六届会议正式记录,A/66/PV.76, 20 年 2 月 6 日, 第 页 2 北京大学法律系国际法教研室编 : 海洋法资料汇编, 第 8-82 页 3 中国代表团团长关键在联合国海洋事务和海洋法非正式磋商进程第 8 次会议上的发言,2007 年 6 月 28 日,Web. 5 September 202, < china-embassy.org/chn/xwdt/t36665.htm/>. 4 大会第六十六届会议正式记录,A/66/PV.75,20 年 2 月 6 日, 第 5-6 页 76 CIR Vol. 22 No. 6

22 China and the U.N. Convention on the Law of the Sea developing countries. However, China has made significant progress in the discovery and exploration of marine genetic resources, and has so far found 7 hydrothermal activity areas in three oceans that account for about one tenth of the hydrothermal fields that have been identified worldwide. This would appear to indicate that in the case of China, a first-come first-served approach would be preferable, and that as such it does not seem an ideal choice to treat marine genetic resources within the area in the same way as it dealt with the two agreements on the implementation of the Convention in 994 and 995. In any case, China should learn its lesson from the Third Conference on the Law of the Sea, ensuring special protection for its own vested interests or obtaining maximum benefits in dealing with the issue of marine genetic resources and related legislation. Fifthly, China should modify its domestic laws and recognize the right for the innocent passage of foreign warships, and promote and defend the freedom of maritime navigation. Freedom of marine navigation is a traditional basic principle of the law of the sea, and so far there has been no fundamental change to this principle in the Convention. Ships of all countries enjoy the right of innocent passage through the territorial seas. In straits used for international navigation and archipelagic waters, ships and aircrafts of all countries enjoy the unimpeded right of transit passage as well as passage rights in archipelagic sea lanes. All countries enjoy freedom of navigation and overflight in the exclusive economic zone and on the high seas. These navigational rights and freedoms are an important legal protection for the Chinese merchant ships and warships freely accessing the sea through international straits (including the Japanese Osumi Strait). On September 25, 202, China s first aircraft carrier, Liaoning, was delivered to the Navy, which makes marine navigation rights and freedoms more important than ever. Nevertheless, some national states laws or declarations have imposed undue restrictions on the right of navigation, such as requiring foreign warships navigating through their territorial waters to obtain prior approval or notification (as advocated by 金建才 : 经略大洋拓展我国在国际海域的活动空间, 海洋开发与管理,20 年, 第 4 期, 第 36 页 CIR November/December