Chinas Exclusive Economic Zone and Continental Shelf free essay sample

Chinas exclusive economic zone and continental shelf: developments, problems, and prospects Zou Keyuan* East Asian Institute, National University of Singapore, 7 Arts Link, Singapore 117571, Singapore Received 1 October 2000; accepted 29 November 2000 Abstract China promulgated its Law on the Exclusive Economic Zone and the Continental Shelf in 1998 after it had ratied the United Nations Convention on the Law of the Sea in 1996. By so doing, China has formally established a legal regime for its exclusive economic zone and continental shelf. However, China has much to do in implementing the above law. Domestically, it needs some detailed regulations for the implementation; and regionally China has to negotiate with its neighboring countries on the maritime boundary delimitation of the exclusive economic zone and the continental shelf. 2001 Elsevier Science Ltd. All rights reserved. Keywords: China; Taiwan; Exclusive economic zone; Continental shelf; Maritime boundary delimitation 1. Introduction The ocean extends over 140 million square miles, some 71% of the Earths surface. Human society is closely bound up with the ocean: life itself arose from the sea, climate and weather, even the quality of the air people breathe, depend in great measure on an interplay of the ocean with the atmosphere. The ocean provides man with indispensable food and other important resources, and has also served as a road of communication for trade and commerce among nations as well as among continents from earliest recorded history. The 1982 United Nations Convention on the Law of the Sea (the LOS Convention) has now become a universal code to govern the ocean uses throughout the world. In accordance with the Convention, every coastal State has the right to establish its exclusive economic zone (EEZ) up to 200 nautical miles measured from the baselines of the territorial sea. In the EEZ, the coastal State enjoys sovereign rights to the natural resources and jurisdiction over certain human activities. Likewise, the coastal State has similar rights to the continental shelf, generally up to 200 nautical miles from the baselines of the territorial sea. The seas bordering on China are all semi-enclosed seas. They are the Bohai Sea, the Yellow Sea, the East China Sea and the South China Sea. All the seas except the Bohai Sea have other adjacent coastal States so that maritime boundary delimitation in respect of the EEZ and continental shelf is required to establish clear national jurisdiction for China and also for other coastal States. Given this geographical situation, China is unable to extend its EEZ up to the full range of 200 nautical miles. The Chinese have a long history of using the oceans for sustaining life. With its increasing population and the gradual depletion of natural resources on land, China has paid closer attention to the opportunities existing in the oceans, particularly the EEZ and the continental shelf which can provide natural resources for the Chinese. It is reported that China has begun its `Blue Revolutiona since the early 1990s, and the process will certainly continue progressively into the 21st century. The China Ocean Agenda 21 published in 1996 contains th e implementing programmes of sustainable use of the ocean and its resources for the future [3]. For the purpose of establishing a legal regime for the EEZ and continental shelf, a coastal State must at rst * Tel. : #65-874-3709; fax: #65-779-3409. E-mail address: [emailprotected] edu. sg (Z. Keyuan). It came into force in 1994 and as of November 2000, there were 135 signatories. The whole text is reprinted in 21 ILM 1261 (1982). For a brief description of these seas in geographical and geologic perspectives, see [1]. The Chinese people began shing in the East China Sea as early as the Xia Dynasty (see [2]). 0308-597X/01/$ see front matter 2001 Elsevier Science Ltd. All rights reserved. PII: S 0 3 0 8 5 9 7 X ( 0 0 ) 0 0 0 3 7 3 72 Z. Keyuan / Marine Policy 25 (2001) 71}81 establish its territorial sea regime. In this context, Chinas rst law which was relevant to Chinas EEZ and continental shelf is the Declaration on Chinas Territorial Sea promulgated on 4 September 1958, which established the breadth of the territorial sea at 12 nautical miles as well as the straight baselines for the territorial sea. It applies to all territories of China, including the Chinese mainland and its coastal islands, as well as all other islands belonging to China. The Law on the Territorial Sea and the Contiguous Zone promulgated in 1992 further improved the legal regime of Chinas territorial sea. Accordingly, China has a belt of territorial sea with a breadth of 12 miles and in addition 12 miles of the contiguous zone. China uses the method of straight baselines to dene the outer limit of its territorial sea and in May 1996 part of such baselines along the mainland coast from the Shangdong Peninsular to the Hainan Islands as well as encircling the Xisha Islands (Pracel Islands) was publicised. 2. Chinas stance in UNCLOS III China attended UNCLOS III from the beginning to the end (1973}1982). During the total 12 sessions, the Chinese delegation presented a series of working papers and made many speeches to expound Chinas position and principles in regard to the law of the sea. On 12 December 1982, China, together with another 117 countries, rst signed the LOS Convention. On 15 May 1996, China nally ratied the convention. The Chinese working papers and speeches presented to UNCLOS III re#ected Chinas stance towards the conference as well as towards the LOS Convention in the following aspects: (1) territorial sea; (2) straits used for international navigation; (3) EEZ; (4) continental shelf; (5) the area beyond the limits of national jurisdiction; (6) marine environmental protection; (7) marine scientic research; (8) transfer of marine technology; and (9) dispute settlement [6]. As to the EEZ, China held the view that the coastal State may dene an EEZ reasonably beyond its territorial sea in accordance with its geographical and geological conditions, state of natural resources and the needs of national economic development. The outer limit of the EEZ may not at most exceed 200 nautical miles measuring from the baseline of the territorial sea. All the natural resources in the EEZ shall belong to the coastal State, and the coastal State must exercise the exclusive urisdiction over its EEZ and lay down necessary laws and regulations in order to protect, manage, use, explore, and exploit these resources. Other States can conduct activities like shing and mining on the condition that they must respect the sovereignty of the coastal State concerned, obtain the latters permission through negotiation and arrangements, and observe strictly the relevant laws and regulations. The neighbouring States within the same sea area should jointly decide their respective jurisd ictional limits on an equal and consultative footing [7]. The median or equidistance line is one method of delimitation, which may be adopted only when it is in conformity with the principle of equity ([8], cited in [6, p. 200]). In terms of the continental shelf, China expressed its view in its Working Paper on Sea Area within the Limits of National Jurisdiction submitted to UNCLOS III in 1973. It regarded the continental shelf as a natural prolongation of the territory of the coastal State. The coastal State had a right to dene reasonably the limits of the continental shelf according to the particular geographical circumstances beyond its territorial sea or its EEZ. The superjacent water of the continental shelf beyond the territorial sea, EEZ or shing zone was not subject to the jurisdiction of the coastal State. The coastal State owns the natural resources of the continental shelf and may lay down all necessary laws and regulations to manage the continental shelf e! ectively. For the delimitation, the Working Paper stated that `States adjacent or opposite to each other, the continental shelves of which connect together, shall jointly determine the delimitation of the limits of jurisdiction of the continental shelves through consultations on an equal footinga, and also `they shall conduct necessary consultations to work out reasonable solutions for the exploitation, regulation and other matters relating to the natural resources in these contiguous parts of the continental shelvesa [7, p. 6]. Although China supported the LOS Convention, it was not fully satised with all the provisions, typically the provisions regarding the denition of the continental shelf and the principle of delimitation of the EEZ and continental shelf between opposite and adjacent States. In Chinas eyes, they contain shortcomings [9]. The Chinese delegation therefore suggested that the denition of the continental shelf in the LOS Convention should be amended so that the continental shelf `includes the natural prolongation of the land territory, not exceeding to the outer limit of the continental margina and `the continental margin * consists in general of the shelf, the slope and the risea. In Chinas view, there should be some exceptions to the general denition of the continental Both Chinese and English versions may be found in O$ce of Laws and Regulations, Department of Ocean Management and Monitoring, State Oceanic Administration [4]. English version may be found in O$ce of Ocean A! airs [5]. Declaration on the Baseline of the Territorial Sea of the Peoples Republic of China, 15 May 1996, see O$ce of Ocean A! airs [15, pp. 9}10]. Article 76 (3) of the LOS Convention provides: `[t]he continental margin comprises the submerged prolongation of the land mass of the coastal State, and consists of the sea-bed and subsoil of the shelf, the slope and the risea. Z. Keyuan / Marine Policy 25 (2001) 71}81 73 shelf, such as in the East China Sea. However, Chinas e! rts nally failed and the provisions on the denition of the continental shelf remains as they were. 3. Chinas legislation Despite Chinas involvement in the negotiation and conclusion of the LOS Convention, Chinas domestic legislation in respect of the basic maritime laws was a result of a long and slow process. As is mentioned above, the Law on the Territorial Sea and the Contiguous Zone came into being in 1992 and the other basic law * the Law on the Exclusive Economic Zone and the Continental Shelf (EEZ Law) was adopted by the National Peoples Congress in 1998. The straight baselines set forth in the Law on the Territorial Sea constitute the basis for demarcating the outer limits of the EEZ and the continental shelf. China applies the method of straight baseline to all its coasts irrespective of whether they are deeply indented or not , which is controversial in international law so that it may be queried whether Chinas practice conforms with the relevant provisions of the LOS Convention [5, pp. 3}8]. The other important aspect in the Territorial Sea Law relating to the EEZ is the establishment of the regime for the contiguous zone. According to the law, China has set up the contiguous zone of 12 nautical miles adjacent to and beyond the outer limit of Chinas territorial sea, where China exercises control to prevent and impose penalties for activities infringing the laws or regulations concerning security, customs, nance, sanitation or entry and exit control within its land territory, internal waters or territorial sea. The contiguous zone is an area of extension of the coastal States jurisdiction over the territorial sea. That is why it is established under the territorial sea law. However, on the other hand, it is an area within the EEZ. In that sense, the contiguous zone carries a special meaning both for the territorial sea regime and for the EEZ regime. China declared the establishment of its EEZ in 1996 when it ratied the LOS Convention. Two years later China promulgated the EEZ Law. This Law is designed to guarantee to China the exercise of its sovereign rights and jurisdiction over its EEZ and continental shelf, and to safeguard Chinas national maritime rights and interests. According to this Law, Chinas EEZ is the area beyond and adjacent to Chinas territorial sea, extending up to 200 nautical miles from baselines from which the breadth of the territorial sea is measured. The legal regime of the continental shelf is closely related to that of EEZ, though di! erent under the LOS Convention. For the purpose of natural resource development, the former is more concerned with non-living resources while the latter with living resources. That is why in State practice the two regimes are found together in legislation, as exemplied in the above Chinese law. In addition to enjoying the same rights and jurisdiction as in the EEZ regime, coastal States like China enjoy the exclusive right to authorize and regulate drilling on the continental shelf for all purposes. Unlike the EEZ, the rights of the coastal State over the continental shelf do not depend on ccupation, e! ective or notional, or any express proclamation. The continental shelf of China comprises the sea-bed and subsoil of the submarine areas that extend beyond Chinas territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edg e of the continental margin does not extend up to that distance. It is interesting to note that although the provision to dene the EEZ is just a copy of the relevant provision of the LOS Convention, the provision regarding the continental shelf has something new with Chinese characteristics, that is, the emphasis on the natural prolongation of Chinas rights to the continental shelf, which bears strong implications for the delimitation of the continental shelf in the East China Sea. Since the legal status of the EEZ and the continental shelf is not equivalent to that of the territorial sea and the coastal State only enjoys sovereign rights to the resources there and jurisdiction over certain matters, some rights enjoyed by the entire world community which are derived from the freedom of the high seas still remain in the EEZ and on the continental shelf, such as freedom of navigation, freedom of over#ight, and freedom of laying submarine cables and pipelines on the continental shelf on the condition that the delineation of the course for the laying such pipelines on the continental shelf is subject to the consent of the coastal State. These rights are expressly re#ected in Chinas EEZ Law: `[a]ny country shall enjoy the freedom of navigation in and of over#ight over the exclusive economic zone of the Peoples Republic of China, and the freedom to lay submarine cables and pipelines in the exclusive economic zone and on the continental shelf of the Peoples Republic of China, and the expediency of other lawful uses of the sea related to the above freedoms, under the condition that the laws and regulations of the Peoples Republic of China are complied with. The routes for the submarine cables and Article 4 of the EEZ Law. It is borrowed from Article 81 of the LOS Convention. Article 77 (3), the LOS Convention. PRC proclaimed its establishment of an EEZ on 15 May 1996 upon the ratication of the LOS Convention [11]. Article 79 of the LOS Convention. The Chinese text is reprinted in Peoples Daily [10]. Article 13 of the Territorial Sea Law, in [5, p. 13]. 74 Z. Keyuan / Marine Policy 25 (2001) 71}81 pipelines shall be subject to the consent of the competent authority of the Peoples Republic of Chinaa. Based upon the above stipulations, the rights of foreign vessels or aircraft to exercise the freedom of navigation or over#ight has been guaranteed within Chinas EEZ. The Chinese law has also recognized the foreign rights to laying cables and pi pelines, but the routes should be approved by China before their construction. In order to safeguard Chinas exercise of sovereign rights with respect to the exploration, exploitation, conservation and management of the living resources in the EEZ, China may take necessary measures such as visit, inspection, arrest, detention and institution of judicial proceedings to ensure compliance with Chinese laws and regulations. In addition, China shall have the right to take necessary measures against violations of Chinese laws or regulations in its EEZ and the continental shelf, and to investigate according to the law those who are liable and may exercise the right of hot pursuit. However, it contains no detailed penalty clauses. What is most unique in the EEZ Law is its Article 14 which provides that `[t]he provisions of this Law shall not a! ect the historic rights enjoyed by the Peoples Republic of Chinaa. It is not usual in national legislation on the EEZ/continental shelf to make provisions for historic rights as such. It is not clear what this term exactly refers to because PRC gave no explanations on this clause during its legislative process [12]. However, it is widely believed that this provision is related to Chinas territorial and maritime claims in the South China Sea based upon the U-shaped line drawn in the Chinese map published by the Chinese government in 1947. The legal denition of this line is still controversial, but generally the line is regarded as a line to indicate the ownership of the islands within it, although the term `historic rightsa goes beyond this. This complex expression indicates Chinas dilemma in the South China Sea. On the one hand, China would like to seek maximum interest in the South China Sea and to enclose the South China Sea by using the above line as marking the limit of the historic waters of China. On the other hand, it has to be realized that `historic rightsa are not equivalent to `historic watersa in international law, though the former may carry a broader meaning and even include `historic watersa [14]. The Chinese inclusion of `historic rightsa in the EEZ law further indicates that su ch rights are not the rights derived from the historic waters. Since they are included in the EEZ law, it may be assumed that these rights are conned to rights of sheries where there is clear historical evidence in the South China Sea favorable to China. As to other rights to natural resources, they are justiable only on the basis of historical evidence acceptable in international law. It should be mentioned that Article 14 of the PRC law has already been criticized by other countries concerned. Therefore, China has the responsibility to clarify to the public the exact meaning of Article 14 of its EEZ and Continental Shelf Law. 4. Maritime jurisdiction The LOS Convention grants the coastal State the sovereign rights to explore and exploit, conserve and manage the natural resources, whether living or nonliving in the EEZ and/or the continental shelf. Also it permits the coastal State to exercise jurisdiction over the EEZ and the continental shelf with regard to the establishment and use of articial islands/installations, marine scientic research, and the protection and preservation of the marine environment. However, the realization of those rights and jurisdiction rests on the promulgation of relevant domestic laws and regulations and their enforcement. The Chinese law on the EEZ and the continental shelf set forth the provisions in relation to maritime jurisdict ion in accordance with the LOS Convention. In addition, there are other laws and regulations which are relevant in this respect. As the EEZ Law states, China has jurisdiction in its exclusive economic zone and over its continental shelf with regard to the establishment and use of articial islands, installations and structures, marine scientic research, and the protection and preservation of the marine environment. 4. 1. Management of natural resources As is provided, China has sovereign rights in its EEZ for the purpose of xploring and exploiting, conserving and managing the natural resources of the waters superjacent to the sea-bed and of the sea-bed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds. Likewise, China may exercise sovereign rights over its continental shelf for the purpose of exploring it Article 11 of the EEZ Law. It is recalled here t hat Taiwan declared in 1993 that the water areas within the Chinese line were historic waters of China. The draft Taiwan Law on the Territorial Sea once contained a clause of historic waters which was dropped at last minute during adoption. It was stated afterwards by the Taiwan government that such dropping did not indicate the abandonment of the application of the concept of the historic waters to the South China Sea. See [13]. A Vietnamese view is expressed that no regional countries have ever recognised historical rights of China in the South China Sea. See [15]. Article 56 (1) and Article 77 (1) of the LOS Convention. Article 3 of the EEZ Law. Z. Keyuan / Marine Policy 25 (2001) 71}81 75 and exploiting its natural resources. It is noted that the above provisions are virtually a verbatim copy of Article 56 (1)(a) and Article 77 (1) of the LOS Convention. Fishery management is an important focus in EEZ legislation. The Chinese law is of no exception. It uses the relevant LOS Convention provisions to ensure Chinas rights to the natural resources in the EEZ. The EEZ Law provides that China has the right to conserve and manage the straddling stocks, highly migratory species, marine mammals, anadromous stocks originating in China and catadromous species which spend the greater part of their life circle in the Chinese water areas. The Chinese competent authority enjoys the right to adopt various necessary measures of conservation and management to prevent the living resources in the EEZ from any danger of over-exploitation. China has the primary interest in the anadromous stocks originating in its rivers. It should be mentioned that some kinds of salmon in the North Pacic and the Sea of Japan originate in Chinas rivers, and therefore China has the right and interest in the utilization and conservation of such species. However, so far China has not yet signed the 1992 convention on the conservation of the Anadromous Species in the Nor th Pacic (for details, see [16]). There is no mention in the EEZ Law of the surplus of the allowable catch in Chinas EEZ which, in accordance with the LOS Convention, can be exploited by other countries. It is obvious that in China Seas there is no such surplus because of intense shing for a long time. Conservation is more important than development in regard to the sh species. Despite this, the Chinese law does not exclude foreign shing in Chinas EEZ. The traditional foreign shing rights seem guaranteed in the EEZ Law subject to bilateral agreement. Any international organization, foreign organization or individual should obtain approval from Chinas competent authority for carrying out shing operations in its EEZ, and must comply with Chinas laws and regulations and with the treaties and agreements concluded between China and the countries concerned. Historically, China concluded shery agreement with Japan, North Korea, and Vietnam. For example, Japanese shermen have enjoyed shing rights in Chinas coastal waters for a long time. Article 4 of the EEZ Law. As the Chinese Law denes, `[t]he natural resources of the continental shelf referred to in this Law consist of the mineral and other nonliving resources of the sea-bed and subsoil together with living organisms belonging to sedentary species, that is to say, organisms which, at the harvestable stage, either are immobile on or under the sea-bed or are unable to move except in constant physical contact with the sea-bed or the subsoila. Article 6 of the EEZ Law. Article 62, the LOS Convention. Article 5 of the EEZ Law. Fishery agreements of a multilateral nature or of a bilateral nature but only allowing Chinese vessels to sh in water areas of other countries are not included. At the end of 1997, China and Japan reached a new agreement on shery management in the East China Sea and the Yellow Sea. It created a joint area of interim measures in the EEZs of the two countries in the East China Sea. On the other hand, di$culties still exist in concluding such shery agreements between Ch ina and other countries due to the fact that after the establishment of EEZs by other countries, Chinese shermen have lost traditional shing areas of considerable dimensions. A closely related issue is the alleged illegal shing activity. In recent years, many Chinese shing vessels either from the mainland or Taiwan have been detained by neighboring countries, such as the Philippines, Vietnam, Japan, or Russia for alleged illegal shing in their EEZs. Moreover, shing vessels from other countries have been detained by China for the same reason. What complicates the matter is that such detentions took place in the disputed South China Sea where the national maritime boundary is disputed. In May and July 1999, Philippine naval vessels bumped against Chinese shing boats in the disputed areas. Unless there is a clear demarcation of the respective maritime boundaries, shing incidents will continue in the South China Sea. Another aspect of the natural resources in the EEZ and continental s helf concerns the exploration and exploitation of mineral resources, particularly petroleum resources. In the o! shore waters there are more than 30 sedimentary basins where it is estimated that there exist about 25 billion tons of oil and 8. 4 trillion cubic m of natural gas [18]. China began to explore o! shore oil and gas in the 1960s. In 1997, Chinas o! shore oil output exceeded 16. 29 million tons, and its natural gas output stood at 4 billion cubic m [18, p. 16]. According to Chinas EEZ Law, any international organization, foreign organization or individual must obtain approval from the Chinese competent authority for exploring and exploiting natural resources in Chinas EEZ and the continental shelf or for drilling for any purpose on the continental shelf of China, and must comply with Chinas laws and regulations. In addition, for the exploitation of the natural resources in the EEZ and on the continental shelf, there are at least two relevant laws and regulations: the Law on Mineral Resources of 1986 and the Regulations on the Exploitation of O! shore Petroleum Resources in Cooperation with Foreign Enterprises of 1982. China has encouraged foreign oil companies with Fishery Agreement between the Peoples Republic of China and Japan, 11 November 1997 (in Chinese) (on le with the author) It is reported that once the implementation of the EEZ regimes by Japan and Korea takes place, about 24,000 shing vessels will have to withdraw from the cur rent shing areas. See [17]. See Ming Pao (in Chinese), 26 May 1999 and 21 July 1999. Texts are available in O$ce of Laws and Regulations, [5, pp. 329}375]. 76 Z. Keyuan / Marine Policy 25 (2001) 71}81 Chinese partners to jointly develop the petroleum resources in Chinese jurisdictional waters. 4. 2. Marine environmental protection China promulgated its rst law on the protection of marine environment in 1982. Since then a series of regulations have been enacted to implement that law, covering almost all aspects of marine pollution. It may be noted that, since all such laws and regulations were adopted before the promulgation of the EEZ Law, the concepts of the EEZ and the continental shelf were not endorsed in these laws. They only used an expression intented to cover the areas of Chinas potential EEZ and continental shelf: `other sea areas within Chinas jurisdictiona. Thus, the stipulation regarding marine environmental protection is rather simple in the EEZ Law: `[t]he competen t authorities concerned of China have the right to take necessary measures for the purpose of prevention, reduction and control of marine pollution and of protection and preservation of the marine environment in the exclusive economic zone and the continental shelfa. The reason is quite clear: all the Chinese laws and regulations in this regard are applicable to Chinas EEZ and continental shelf. China had its own practice of enforcing environmental law in the sea areas beyond its territorial sea before the promulgation of the EEZ Law. A typical case is the Nanyang Case which was dealt with by the Chinese court for causing marine pollution in the waters 50 nautical miles o! the Chinese coast in the early 1980s [19]. Nevertheless, it is acknowledged that, with the establishment of the EEZ, the implementation of environmental laws in the vast sea areas is more di$cult than before and needs more human resources and necessary equipment [20]. 4. 3. Marine scientixc research As regards marine scientic research, the EEZ Law provides that `[a]ny international organization, foreign They are, inter alia, the Regulations Concerning the Prevention of Pollution in Sea Areas by Vessels of 1983; the Regulations Concerning Dumping of Wastes at Sea of 1985; the Regulations Concerning Environmental Protection in O! shore Oil Exploration and Exploitation of 1983; the Regulations on the Prevention of Environmental Pollution by Ship-Breaking of 1988; the Regulations on the Prevention and Control of Pollution of the Marine Environment by Seashore Construction Projects of 1990; the Regulations on the Prevention and Control of Pollution of the Marine Environment from Land-based Source of 1990. Both the English and Chinese versions of the Regulations are available in O$ce of Laws and Regulations, [5, pp. 69}225]. For example, Article 2 of the Marine Environmental Protection Law provides that `[t]his Law applies to the internal sea and territoria l sea of the Peoples Republic of China and all other sea areas under the jurisdiction of the Peoples Republic of Chinaa. O$ce of Laws and Regulations, [5, p. 78]. Article 10 of the EEZ Law. organization or individual shall obtain approval from the competent authority of China for carrying out marine scientic research in the exclusive economic zone and the continental shelf of China, and shall comply with the laws and regulations of Chinaa. It is clear that within Chinas EEZ, freedom of scientic research is restricted, and it is subject to approval by the Chinese authorities. The wording in the EEZ Law `2shall comply with the laws and regulationsa of China indicates that the relevant laws and regulations will apply to foreign entities which wish to conduct scientic research in Chinas EEZ and continental shelf. In 1996, China adopted Regulations on the Management of Marine Scientic Research Involving Foreigners, which has detailed regulations to govern the foreign scientic research activities in Chinas jurisdictional waters including the EEZ and the continental shelf [21]. An application for marine research must be submitted to the Chinese competent authority 6 months in advance and the relevant authority will make a decision to approve or refuse within 4 months. If the research proposal is detrimental to Chinas interests or against Chinas laws and regulations, it will be refused; if important matters such as disputed areas, or national security are involved, the proposal must be approved by the State Council. The LOS Convention gives power to coastal States to regulate, authorize and conduct scientic research in their own EEZ or on their continental shelf. On the other hand, the Convention encourages marine scientic research for the benet of all mankind and provides that consent should, in normal circumstance, be granted to those who plan to conduct scientic research in the EEZ and/or on the continental shelf of other countries for peaceful purposes. 4. 4. Management of construction of artixcial installations The LOS Convention gives coastal States the right to establish articial islands and installations within their EEZs. Accordingly, the EEZ Law provides that China has the exclusive right to construct and to authorize and regulate the construction, operation and use of articial islands, installations and structures. In addition, the exclusive jurisdiction of China over the articial islands, installations and structures in the EEZ and on the continental shelf includes jurisdiction with regard to the laws and regulations on customs, nance, sanitation, safety or border entry and exit control. In this respect, it is noted that China attempts to exercise jurisdiction identical to that existing in the legal regime for the contiguous zone Article 9 of the EEZ Law. Article 5 of the Regulations. O$ce of Laws and Regulations, [21, pp. 10}11]. Article 246 (1) of the LOS Convention. Article 246 (3) of the LOS Convention. Z. Keyuan / Marine Policy 25 (2001) 71}81 77 in accordance with the LOS Convention. The EEZ Law further provides that Chinas competent authority has the right to establish safety zones around the articial islands, installations and structures in the EEZ and on the continental shelf, and may take appropriate measures to ensure the safety both of navigation and of the articial islands, installations and structures. The LOS Convention allows the coastal State to establish the safety zone up to a distance of 500 m around the articial islands and installations provided that `the use of recognized sea lanes essential to international navigationa is not hampered. It can be seen that all the provisions of the EEZ Law in this regard are fully in line with the LOS Convention. According to the LOS Convention, articial islands or installations or structures cannot be treated as natural islands. They should have no territorial sea of their own, and `their presence does not a! ect the delimitation of the territorial sea, the exclusive economic zone or the continental shelfa. However, it should be noted here that construction of articial installations in the disputed sea areas has become a new method to consolidate the territorial claims of the claiming States. This is illustrated by such happenings in the South China Sea in recent years [22]. 5. Disputed areas and maritime boundary delimitation China has maritime boundary problems with its neighboring countries including Japan, the two Koreas, Vietnam, the Philippines and other Southeast Asian countries bordering the South China Sea. In the Yellow Sea, China has to solve the maritime boundary problems with North Korea for the delimitation of the EEZs and continental shelves between the two countries. Since North Korea has not yet promulgated its EEZ law, there is no basis for determining the outer limit of its EEZ. However, North Korea once stated that the boundary of the EEZ between adjacent or opposite States `should be determined by consultation in accordance with the principle of an equidistant line or a median linea [23]. As to South Korea, it enacted its EEZ Law in August 1996, which provides that the delimitation of the EEZ in relation to other States shall be e! ected by agreement with the States concerned according to international law, and the rights of South Korea in the EEZ shall not be exercised in the sea area beyond the median line between South Korea and the State concerned. Both Koreas have emphasized the principle of median/equidistance line for the delimitation of the EEZs, while China has regarded the principle of the median line as only one of the delimitation methods for the EEZ and continental shelf and emphasized the application of equitable principle. Th e boundary delimitation of the EEZ and the continental shelf between China and Japan is more complicated in comparison with the legal situation existing between China and two Koreas. Japan has advocated the application of the median line as a delimitation line for the EEZ and the continental shelf in the absence of an agreed line with the opposite country. This is re#ected in its 1996 EEZ Law. There are three reasons: (1) It would be inappropriate if the outer limit of the EEZ remained undecided when delimitation talks did not reach any agreement for a long time. (2) The traditional position of Japan that delimitation of the EEZ should be made in accordance with the median line principle should be maintained. (3) It is appropriate to maintain consistency with the Law on the Provisional Measures related to the Fishery Zone of 1977 which adopted the median line principle [25]. However, Chinas position is di! erent and it does not think that the equidistance method is the only criterion for delimitation. Instead, it has advocated the application of the natural prolongation principle for the delimitation of the continental shelf with Japan. As early as in the 1970s, when Japan and South Korea concluded the agreement for joint development in the East China Sea, China sent its strong protest against such a deal on the ground that it encroached upon the sovereignty of China over its legitimate continental shelf [27]. Natural prolongation is quite meaningful for China because, at least in the East China Sea, the continental shelf from mainland China is very broad and China has used the concept of natural prolongation to support its claim to the continental shelf in the East China Sea. Since the general trend in State practice concerning boundary delimitation of the EEZ/continental shelf is towards a single line to delimit the two di! erent and closely associated sea areas, it is reasonable to wonder whether natural prolongation could still play a signicant role in such delimitation. Recently, China has realized the di$culties of applying the natural prolongation principle to maritime boundary delimitation, and begun to consider the principle of proportionality which is also favorable for China. As to the EEZ delimitation, it seems that China will agree to the median line for the two countries. If China insists on natural prolongation for the See Article 60 (2) of the LOS Convention. Article 60 (5) and (7) of the LOS Convention. Article 60 (8) of the LOS Convention. Articles 2 and 5 of South Koreas EEZ Law, in [24]. See Article 1 (2) and Article 2 (2) of the Law on the Exclusive Economic Zone and the Continental Shelf (Law No. 74 of 1996), [24]. As is stated, China adheres to the following principles for the delimitation of the continental shelf: (1) application of the concept of natural prolongation; (2) delimitation through negotiation or consultation; and (3) consultation regarding equitable principles taking into account all relevant circumstances [26]. 78 Z. Keyuan / Marine Policy 25 (2001) 71}81 elimitation of the continental shelf while agreeing to the median line as the line of delimitation of the EEZ, then there would be two di! erent delimitation lines in the East China Sea with Japan, thus denitely bringing di$culties of law enforcement and exercise of jurisdiction for both countries. In the South China Sea, the situation is most complicated due to the overlapping claims both to the maritime areas and to the islands by more than ve countries. China has maritime boundary problems with Vietnam in the Gulf of Tonkin as well as in the South China Sea. Negotiations began in 1993 and both sides pledged to settle the boundary matter by the year 2000. The maritime boundary with the Philippines involves the Taiwan factor. As to other maritime boundary issues, the precondition will be the settlement of the territorial disputes over the Spratly Islands. Upon the ratication of the LOS Convention, China made a statement that `[t]he Peoples Republic of China will e! ect, through consultations, the delimitation of boundary of maritime jurisdiction with the states with coasts opposite or adjacent to China respectively on the basis of international law and in accordance with the equitable principlea. In the EEZ/continental shelf Law, China rea$rms the above position by stipulating that `the exclusive economic zones and continental shelves which have overlapping claims between the Peoples Republic of China and the countries ith opposite or adjacent coasts shall be delimited by agreement in accordance with the equitable principle on the basis of international lawa. It is reported that the negotiations between China and other neighbouring countries such as Japan, South Korea and Vietnam on the delimitation of maritime boundaries of the EEZ and the continental shelf are now under way. So far none is complete, despite the statements made by both China and Vietnam that the maritime boundary issue in the Gulf of Tonkin should be resolved by the year 2000 [28]. Apart from the di! erences between China and the countries concerned on the principles of maritime boundary delimitation, the technical aspect is also important. The main one concerns the straight baselines. China adopted straight baselines for its coast as well as for the o! -lying islands. South Korea, Japan and Vietnam adopted straight baselines as well. The Philippines has established archipelagic baselines similar to the straight baselines of the mainland countries. All these straight baselines have attempted to maximize the jurisdictional waters of the countries concerned. They have problems when they are subjected to analysis in accordance with the criteria set forth in the LOS Convention. Some countries have shown their discontent with the publicized baselines of other countries. Vietnam and the Philippines once lodged protest against Chinas straight baseline publicized in 1996. A nal solution to the controversy resulting from straight baselines might be possible if the countries concerned agreed to compromise and recognized such lines as the basis for demarcating the maritime boundaries of the EEZs and continental shelves. Maritime boundary delimitation is much more di$cult by the disputes between China and other interested countries regarding the sovereignty and ownership of certain islands in the China Seas, such as the Diaoyu (Senkaku) Islands in the East China Sea, which will a! ect the boundary delimitation of the EEZ and continental shelf with Japan, and the Spratly Islands in the South China Sea which involve six countries. The situation of these islands simply makes impossible maritime delimitation in the South China Sea at least at present and in the near future. That is why the seas around China are perceived as `one of the most di$cult areas for maritime boundary delimitationa [29]. 6. The Taiwan factor The Taiwan factor is one of the critical factors in managing Chinas EEZ and the continental shelf. Taiwan is a province of China but since 1949 it has been separate from the jurisdiction of the Peoples Republic of China (PRC) as a result of the Chinese civil war in the late 1940s when the nationalist government in the name of the Republic of China (ROC), which was founded in 1912, was forced to retreat to Taiwan by the Chinese communist forces. The political regime in Taiwan still carries the name of the `Republic of Chinaa. In 1971, the Chinese seat in the United Nations was taken over by the PRC and Taiwan had no chance to participate in the Third UN Conference on the Law of the Sea or to sign the LOS Convention. However, Taiwan has stated that it will respect the convention and make domestic maritime laws in line with it. In 1998, Taiwan promulgated the Law on the Territorial Sea and the Contiguous Zone and the Law on the EEZ and the Continental Shelf at the same time. Instrument of Ratication, 15 May 1996, p. 1 (on le with the author). Article 2 of the EEZ Law. See UN Doc. A/51/645, 15 October 1996, p. 12. It is noted that during the First and Second UN Conferences on the Law of the Sea, it was Taiwan which sent delegates to the Conferences on behalf of China. Taiwan ratied the Convention on the Continental Shelf in 1970. The whole texts of these two laws are compiled in Ministry of the Interior, The Law of the T erritorial Sea and the Contiguous Zone of the Republic of China and the Law on the Exclusive Economic Zone and the Continental Shelf (in Chinese), February 1998. (on le with the author) The English versions are not yet available. Z. Keyuan / Marine Policy 25 (2001) 71}81 79 The application of the ROC law on the EEZ is di$cult due to the abnormal Cross}Strait relations. Mainland China has long claimed that Taiwan is a rovince of China and the Taiwan government is a local authority. PRC rmly opposes `two Chinasa, `one China, one Taiwan, or `one country, two governmentsa. Therefore, PRC does not recognize the validity of the Taiwanese laws such as the territorial sea law or the EEZ law. However, the PRC also faces a dilemma in that its own law, though applicable in theory to all the territory of China, cannot apply in reality to the water areas under Taiwans jurisdiction. In this context, the Taiwanese laws apply instead and they are de facto valid vis-a-vis main` land Chinas law appl ying to the water areas under the mainland jurisdiction. Taiwans attitude is somewhat di! erent from mainland Chinas. In 1991, Taiwan terminated the Period of National Mobilization for Suppression of the Communist Rebellion and the communist regime on the mainland is no longer regarded as a rebellion but as an unfriendly regime in control of the mainland. This step may be regarded as a tacit abandonment of Taiwans claim to being the government of the whole of China [31]. Since both mainland China and Taiwan regard themselves as part of China, the relations between them are not international but intra-national. This characteristic has been also re#ected in their maritime laws. The PRC law on the territorial sea purports to apply to Taiwan and its adjacent islands. Though there is no such proclamation in PRCs EEZ Law, it is assumed that the EEZ law is also applicable to Taiwan and its adjacent islands since the EEZ is an extension of the territorial sea of a coastal State in terms of a States territorial sovereignty and jurisdiction as well as territorial integrity. The unique status of Taiwan obviously a! ects maritime boundary delimitation and shery management in the China Seas. Taiwan has raised the issue of overlapping areas in the Bashi Channel with the Philippines many times, hoping to reach an agreement. However, since the Philippines has recognized PRC as the sole legitimate government of China and any such deal should be done with Beijing rather than with Taipei, the issue could not be easily resolved (see [32,33]). Since all the neighboring countries recognize PRC as the sole legitimate government of China, the delimitation negotiations must be conducted between those countries and PRC without the involvement of ROC, thus greatly a! ecting the interest and rights of ROC. Since representation by PRC will denitely be unacceptable to ROC, the situation of the divided China remains a major obstacle to resolving the maritime boundary issues between China and its neighboring countries, particularly Japan and the Philippines. At present, the two sets of maritime laws referred to above will no doubt cause con#icts of jurisdiction between the present two authorities on either side of the Taiwan Strait. It may be expected that some kind of interim arrangements regarding the maritime jurisdiction of the two sides will be negotiated as implementing steps for the above laws. There will be a common position of the two sides on maritime boundary delimitation with the relevant neighboring countries. It is recalled that both sides have taken a concerted position on the South China Sea in the informal consultation among the interested countries sponsored by Indonesia in recent years. The prospective arrangements might be developed into formal treaties if the two sides no longer take the `one Chinaa perception and Taiwan seeks independence. Otherwise these arrangements would have to remain `domestica in nature. Another factor which is worth considering is the potential unication of these laws, keeping pace with the reunication of China. Since both sides across the Taiwan Strait have maintained a policy of reunication of China as a national goal for the entire Chinese people, the future unication of the legal system must be considered, in particular that part of it which relates to the national territory including the above basic maritime laws. The case of Taiwan is di! erent from that of Hong Kong in terms of unication of the marine legal systems. According to the Basic Law of the Hong Kong Special Administrative Region, Hong Kong can retain its existing legal system including the common law, law of equity and customary law applicable in Hong Kong. As to the marine areas, Hong Kong only has internal waters within the publicized baselines of PRC in 1996. Therefore, Hong Kong itself has no territorial sea, much less an EEZ or continental shelf. On the other hand, since matters relating to the territorial sea and EEZ/continental shelf are within the power of the central government of PRC, the laws of the territorial sea and the EEZ accordingly are applicable to Hong Kong as revealed in Annex III of the Basic Law and other late-on additions. However, Taiwan itself has a vast sea area and has adopted laws on the territorial sea and the EEZ as seen above. Secondly, Taiwan has never regarded itself as subordinate to mainland China as a province claimed by PRC. It considers itself an equivalent entity vis-a-vis the mainland. Thirdly, ` unlike Hong Kong, which has always been a subordinate part of a State, Taiwan claimed to be an independent Article 8 of the Basic Law [34]. See The Basic Law, [34, pp. 71}172], `Decision of the Standing Committee of the National Peoples Congress on Adding and Subtracting National Laws Listed in Appendix 3 of the Basic Law of the Peoples Republic of Chinaa, in [34}36]. See `The Chinese White Pap er on Cross-Strait Relationsa, August 1993, reprinted in [30]. 80 Z. Keyuan / Marine Policy 25 (2001) 71}81 nation State as the ROC on Taiwan. It has a national legal system parallel to that of the mainland. Thus, it would be impossible to simply retain the legal system of Taiwan after Chinas reunication following the Hong Kong model. In comparison, the mainlands laws are superior to those of Taiwan in implementation and enforcement because of the strength of its international status and diplomatic ties with all the neighboring countries of China. The inferiority of the Taiwan laws does not mean that those laws could not be implemented in practice, but their application is limited not only geographically but also politically. Potential con#icts in implementing the above laws will arise since they are made and enforced by di! erent authorities. On the other hand, it is interesting to note that all of the above laws take the same position vis-a-vis other countries, particularly on the question of ` maritime boundary delimitation and sovereignty over disputed islands in the East China Sea or in the South China Sea. At the end of 1998, Taiwan publicized part of its straight baselines as well. They encircle the Taiwan Island and Penghu Islands, Pratas Islands, Diaoyu (Senkaku) Islands, and the Scarborough Reef. It avoided determining the baselines for mainland China including the islands adjacent to the mainland but under the jurisdiction of Taiwan such as Jinmen and Mazu Islands [37]. In this sense, they are complementary. Chinas future reunication will no doubt a! ect the future of the above maritime laws since they are concerned with the maritime territories of China. It is still, in any case, too early to predict a unied law for the entire China in the maritime domain. At the regional level, the determination of the outer limit of Chinas EEZ and continental shelf depends upon negotiation and agreement between China and relevant neighboring countries. Maritime boundary delimitation will still remain a di$cult task facing China. Since the seas around China are semi-enclosed, close regional cooperation is necessary for the management and conservation of natural resources and protection of the marine environment, safety of navigation and other peaceful and rightful ocean uses. References [1] Zou Keyuan. The establishment of a marine legal system in China. International Journal of Marine and Coastal Law 1998;13(1):24. [2] Hongye Zhao. Recent developments in the legal protection of historic shipwrecks in China. Ocean Development and International Law 1992;23:305. [3] China Ocean Agenda 21. Beijing: Ocean Press, 1996. [4] O$ce of Laws and Regulations. Collection of the Sea Laws and Regulations of the Peoples Republic of China. Beijing: Ocean Press, 1991. pp. 1}4. [5] O$ce of Ocean A! airs. Bureau of Oceans and International Environmental and Scientic A! airs, US Department of State. Limits in the Seas, vol. 117. China: Straight Baselines Claim, July 9, 1996. pp. 11}14. [6] Greeneld J. Chinas practice in the law of the sea. Oxford: Clarendon Press, 1992 [relevant Chapters]. [7] Working Paper, 14 July 1973 (reprinted in Law Department, Peking University). Collected Materials on the Law of the Sea. Beijing: Peoples Daily Publishing House, 1976. pp. 74}5 (in Chinese). [8] UN O$cial Records. xiv: summary records of meetings. Third UN Conference on Law of the Sea, Geneva, 1980. pp. 23}4. [9] UN O$cial Records. xvii: summary records of meetings. Third UN Conference on the Law of the Sea, Montego Bay, 1982. p. 102. cited in [6]. [10] Peoples Daily (in Chinese), 30 June 1998. An English translation may be found in Law of the Sea Bulletin, No. 38, 1998. pp. 28}31. [11] Peoples Daily (in Chinese). 16 May 1996. [12] Li Zhaoxing. Explanation on the Draft Law on the Exclusive Economic Zone and the Continental Shelf of the Peoples Republic of China. 23rd Session of the Standing Committee of the 8th National Peoples Congress, 24 December 1996: Gazette of the Standing Committee of the National Peoples Congress of the Peoples Republic of China, No. 3, 1998. pp. 278}9 (in Chinese). [13] Virginia Sheng. Territorial waters statute passed. The Free China Journal (Taipei) 1998. [14] Zou Keyuan. The Chinese Traditional Maritime Boundary Line in the South China Sea and Its Legal Consequences for the Resolution of the Dispute over the Spratly Islands. International Journal of Marine and Coastal Law 1999;14(1):27}55. [15] Nguyen Hong Thao. Chinas maritime moves raise neighbors hackles. Vietnam Law and Legal Forum 1998;21}2. [16] Zou Keyuan. International legal regime for the anadromous species in the North Pacic. Proceedings of the Workshop on the International Fishery Laws and Regulations, Beijing: Bureau of Fishery, Ministry of Agriculture, 1995. pp. 160}7 (in Chinese). [17] Zhao Enbo. Some proposals concerning the strengthening of the management of Chinas exclusive economic zone and continental shelf. Ocean Development and Management 1999;16(2):50 (in Chinese). 7. Conclusion By promulgating the EEZ/Continental Shelf Law, China has formally established the regime of the EEZ/continental shelf. It is also a signicant step forward in improving the marine legal system in China. Nevertheless, China has much to do in implementing the above law both at the domestic and regional levels. At the domestic level, since the EEZ/Continental Shelf Law is a general and basic law, it needs a set of more detailed regulations for its implementation. A senior legal o$cer in the Chinese State Oceanic Administration suggested that there should be at least the following regulations to supplement the EEZ/Continental Shelf Law in the future: (1) implementing Regulations of the EEZ/Continental Shelf Law; (2) regulations on the Management of Foreign Fishing; (3) regulations on the Management of Highly Migratory and Straddling Species; and (4) regulations on the Construction and Management of Articial Installations at Sea [17, pp. 47}48]. In addition, improvement of the enforcement teams is also an essential element for the implementation of the EEZ/Continental Shelf Law. Z. Keyuan / Marine Policy 25 (2001) 71}81 [18] Information O$ce of the State Council of PRC. The development of Chinas marine programs. Beijing Review 1998;14. [19] Zou Keyuan. Maritime jurisdiction over the vessel-source pollution in the exclusive economic zone: the chinese experience. EAI Working Paper No. 6. 1998. pp. 20}2. [20] Zou Keyuan. Implementing marine environmental protection law in China: progress, problems and prospects. Marine Policy 1999;23(3):216}7. [21] O$ce of Laws and Regulations, State Oceanic Administration, PRC. Explanations of the Regulations on the Management of Marine Scientic Research Involving Foreigners, Beijing, October 1996. pp. 1}31 (in Chinese). [22] Zou Keyuan. The impact of articial islands/installations on the sovereignty issue over the Spratly Islands. Asian Review 1999; 49}54 (in Chinese). [23] Jung-gun Kim. Re#ections on the Attitude of North Korea toward the Law of the Sea Treaty. In: Choon-ho Park, Jae Kyu Park, editors. The law of the sea: problems from the East Asian perspective. Honolulu: The Law of the Sea Institute, University of Hawaii, 1987. pp. 227}8. [24] Law of the Sea Bulletin. 1997;(33):52}4. [25] Toshihisa Takasa. The conclusion by Japan of the United Nations Convention on the Law of the Sea (UNCLOS) and the adjustment of maritime legal regime. Japanese Annual of International Law 1996;(39):139. [26] Wang Tieya. China and the law of the sea. In: Johnston DM, Letalik NG, editors. The law of the sea and ocean industry: new opportunities and restraints. Honolulu: Law of the Sea Institute, University of Hawaii, 1984. p. 587. 81 [27] Wei-Chin Lee. Troubles under the water: Sino-Japanese con#ict of sovereignty on the continental shelf in the East China Sea. Ocean Development and International Law 18(5): 585}611. [28] Zou Keyuan. Maritime boundary delimitation in the Gulf of Tonkin. Ocean Development and International Law 1999; 30(3):235}54. [29] Charney JI. Central East Asian Maritime Boundaries and the Law of the Sea. American Journal of International Law 1995;89:724. [30] Jean-Marie Henckaerts, editor. The international status of Taiwan in the New World Order: legal and political considerations. London: Kluwer Law International, 1996. p. 273. [31] James Ling-Yang Chen. Crossing the Taiwan Strait: the danger and the opportunity. Taipei: Cross-Strait Inter#ow Prospect Foundation, 1998. p. 8. [32] Fu Kuen-Chen. Dispute over the detention of shing vessels in the Law of the Sea perspective. Youth Daily 1989 (in Chinese). [33] Shen JT. Political and legal implications of the concept of the exclusive economic zone as applied to the Republic of China. Taipei: Cross-Strait Inter#ow Prospect Foundation, 1998. p. 30. [34] Basic Law. In: The Basic Law of the Hong Kong Special Administrative Region of the Peoples Republic of China. Beijing: Law Press, 1990. p. 87. [35] Gazette of the State Council of the Peoples Republic of China 1997;(23):1031 (in Chinese). [36] Peoples Daily. 29 October 1998 (in Chinese). [37] United Daily News (Taipei). 1 January 1999 (in Chinese).