Legal and environmental regime of islands in the South China Sea: status under international law

Dimitris Liakopoulos
Global Jurist Topics
01-DEC-04


Abstract

The Spratly islands comprised an area of hundred and fifty features in the South China Sea (SCS) and on of the littoral States which have obtained their claims to sovereignty to them. The present article analyses under the rules of international law of the sea, the rules that govern the regime of islands. We should take in consideration that all the boundary States has claimed to sovereign over ths islands. China has put forward much documentation supporting the chinese claim based on historical and discovery occupation in the region. Taiwan demonstrates legal bases of claims in the SCS establishing a physical presence on the Spratlys after the japanese withdrawal after world war II. Other States that includes activities in the area of SCS is Vietnam, Philippines, Brunei and Malaysia. There is also explained that a discusses of a continental shelf, the maritime zones, the purpose of the boundary solution has involved also another point of analysis: the protection of the environment in the Spratly region and especially after the 1997. Governments of the region should have start to think and act seriously on environmental questions as a new consequences of various crisis in the last years.


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The South China Sea (SCS) is a region of enclosed sea (1) with covers an area of some 800.000 square kilometers. It is a strategic waterway linking the Pacific and Indian oceans (2). The SCS is the maritime heart of a region bring in Southearn China (3) to Southeast Asia. The sea is of great importance economically, politically and environmentally to surrounding nations. High economic growth often coupled with depletion of natural resources, intensifies conflicts like the one in the South China sea (4).

Motivated by economic and geostrategic concerns, littoral states began in the late 1960 decade to make overlapping sovereignty claims to SCS islands. The major groups of the area of SCS are:

a) the Pratas (Dungsha);

b) the Macclesfield bank (Zhungsha) to which China and Taiwan claim chinese sovereignty;

c) the Paracels (Xisha) of ehich China/Taiwan and Vietnam contest each others claims and finally the Spratlys (Nansha) which are contested between other near states like China/Tawan, Vietnam, Malaysia and the Philipines. In addition some of the feature are situated in the exclusive economic zones (EEZ) claimed by Brunei (5).

There is also the idea of the geological stucture and geographical position may to be relevant when considering whether or not an island can generate maritime zones (6), was set out in the O.A.U Declararion on issues of the law of the sea in 1973. According to the draft article 2.2.: <> (7).

The Spratly islands comprise an area of hundred and fifty features in the SCS and on of the littoral states have yet obtained for their claims to sovereignty to them. All the sovereignty claims to the Spratlys have weakness and thus each nation must know that is claim may not ultimately or completly prevail if the dispute were to be present to a tribunal or arbitrator. There is also the opinion that the sovereignty issue is totally and depriving the Spratly features of any weigh in maritime delimitation due to the complex situation of claims (8). The sovereingty issues are only half of the problem because the maritime zones and continental shelves must be delimeted as well (9). At the littoral states now thrive the strongest possible position or the maritime delimitation settlement. On the one hand if some of the island can generate maritime zones this would strongly influence the maritime delimitation in the SCS. On the other hand they are not granted maritime zones of their own the isolated outcropping scattered throughout the sea will have minimal effect on maritime delimitation (10). The delimitation of maritime bounderies is however difficult because many countries have not defined their maritime claims and often where they have done so, their claims are subject to multiple overlaps (11). The principles of international law have been thought to play a key role in resolving the dispute however thay may no necessarily provide a set of answers to absolutely evey issue. The littoral states acceptance of the United Nations Convention on the law of the sea and the conventions entry into force in 1994 (12) makes it most likely to assume that the legal rights put down in the convention will be a major took in solving the dispute (13). Article 121 of the UNCLOS, the regime of islands stipulates the basic rules regarding islands in international maritime law. In particular the article 121 support that:

a) <
b) Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive zone and the continental shelf (15) of a island are determined in accordance with the provisions of the convention applicable to other land territory (16);

c) Rocks (17) which cannot sustain human habitation or economic lige of their own shall have no exclusive economic zone or continental shelf>> (18).

The provisions are made subject to several different interpetation by states which makes the regime of island an even more complex issue. The nature of international legal processes does not support the possibility of swift changes. According to article 121.2, all islands qualifying the legal definition of an island found in article 121.1 (19) is entitled to maritime zones of national jurisdiction. The entitlement to the extensive maritime zones, the 200 nautical mile Exclusive Economic Zone (EEZ) and the continental shelf does not follow automatically from island status as defined in article 121.1. An exception is stated in article 121.3. Thus in order to decide whether or not some specific features should be entitle to maritime zones it is thus necessary first to conduct an analysis of the rules providing the definition of an island and islands entitlment to maritime zones (20).

The discussion is that we must find the rules and the laws that govern the regime of islands in the international law. We could take in consideration the role of the International Court of Justice, the establishment also of the International Tribunal of the Law of the Sea (21) and arbitrators in the definition of the law applicable to the delimitation of maritime boundaries, a similar contribution to the clarification of article 121 of the UNCLOS might be considered a possibility. There also a great number of circumstances which may cause tribunals and Arbitrators (22) to always address the issue for artcile 121 even if it is raised by one of the parties to the proceedings (23). The various cases concerning maritime delimitation which have been decided until in our days, have not accessed article 121 of the UNCLOS in any detail (24).

The entry into force of the convention strengthens the argument that the limitations on entitlements of features defined as such rocks, is customary international law (25). The status of article 121 of the UNCLOS was addressed in the Jan Mayen Consiliation. Interestingly the conciliation commission found that article 121 of the then Draft convention reflected <>. In order to determine if a customary rule has emerged it is vital to not only find out if there exists a link consistent practice afferming it, but just as important to demonstrate that there exists a common obligation amongst states to comply with the rule, the opinion juris. Even if article 121. 3 (26) should represent general international law the use of a 121. 3 rock in an agreement to delimit the maritime boundary between states is not themsleves on a delimitation line that may even be inconsistent with general of convnentional international law unless third states are adversely affected.

In the article 31. 1 by the Vienna convention of the law of treaties (27) the general rule of interpretation it states that <>. The continuous article is the basis on the fact that all states are sovereign and as such are only obligate by the treaties they themselves are parties to (28).

The concept of the dispute in the SCS area in regard to the maritime delimitation are basic of the law of the sea (29). We could observe an evolution of the international law of sea and in especially in the region of exclusive economic zones (30) and a continental shelf (31). On one hand any of the Spratlys have a right to an EEZ and a continental shelf than the high seas area will disappear or at last be strongly reduced. The islands will probably be given partial effect in the delimitation of maritime zones. On the other hand the Spratly islands have a right only to 12 nautical miles territorial waters and a contiguous zone (32), then there will remain a high seas area in the Spratly. The claims to sovereign over the various geastures in the SCS and to the maritime areas therein are mostrly based on acts of discovery, historic use and occupation. The emergence of the United Nations Convention on the Law of the Sea in the 1970s also given incitment to put forward claims to huge maritime zones.

In conclusion, recent judicial decisions and arbitration have been relatively consistent in refusing to give full effect to small insular formation in delimiting boundaries. These situations hovewer govern the delimitation of maritime areas where maritime zones of opposite or adjacent states overlap. Where ther exit no such overlap and the maritime zones of an apparently unihabited feature only makes encroachment of the high seas, we might find that the issue is treated differently (33.

China claim to sovereign over the islands in the SCS rest on historical of discovery and occupation and she has put forward much documentation supporting the chinese claim. The Spratly islands are also mentioned in chinese records from the 12th century. However also Japan renounced all rights to the Spratly in the treaty of peace signed in 1951 (34). This treaty did not make any resolution as to who owned the Spratlys. In poor worlds China is trying to establish a historical title to validate acqusition of territory in international law. Contemporary international law has constraint a rule of discovery accompanied by continuous and effective acts. China has also asset another type of claim, the nine interrupted lines, which seemingly puts at the entire SCS under chinese exclusive jurisdiction. The International Court of Justice in the Fisheries case accepted a similar claim (35), where Norway was awarded the water adjacent to its fringing island coast as historic waters. Also the International Law Commission (ILC) prepared a study in 1962 which concluded that three factors should be considered in determining whether a historical claims valid. Those factors were the exercise of authority over the area the continuity over time of this exercise of authority and the attitude of foreign states to the claim (36). The present evidence does not seem sufficient to support a chinese historic claim.

Another state which provoces dispute for this area is Taiwan. The legal vases of claims in the SCS are China's historic ties to the islands and they thus mirror those of China. The ROC was the first government to established a physical presence on the Spratlys after the japanese withdrawal after world war II and it has occupied the largest ilsand in the Spratly group. In 1993 Taiwan issued the <> which asserte chinese sovereignty over the Spratlys, the paracels, Macclesfield Bank and the Pratas (37). No one could accept both governments of China and the ROC to settle the dispute in regard of Taiwan's status or at least out together some kind of coalition to represent all of China before negotiations can be advanced multilateraly in the SCS.

Another state that includes historic activities from 17th to 19th century in the area of SCS is Vietnam. In particular the government of Vietnam issued in 1979 and 1982 two white papers which compiles the historic bases of the sovereign in the islands. Vietnam sovereign claim to the Spratlys is also based on a occassion of a French claim to the islands made in 1993 (38). The French did never achieve acceptance for their claim and it is thus not likely that there exists any lawful of which Vietnam claim by right of cession from France. Vietnam has not laid down claims to maritime zones in the SCS but it has drown straigh baselines along its coast and these baselines are subject to objections by many states (39).

A more recent sovereign claim for the area is presented from the Philippines, which is principally justified on discovery of certain islands. For the Philippines is important that the islands became res nullius are the japanese had abandoned them in the period of the finish of the second world war. In the 1951 peace treaty is not sufficient for the islands to become res nullius. The japanese abandonment is non disputable but it cannot be presumed on behalf of the other claimants because abandonment cannot be presumed by reason of non use be must be effected voluntarily (40). The Philippines have supported their claim by gradually occyping feature with military garrisons and in 1978 issued a decree formalising their occupations and claims but also making a claim to a territorial jurisdiction over the sea, seabed and airspace within the boundaries of Kapayaan. The continental shelf also provisions of the UNCLOS reefs only to the seabed and subsoil and is at an instrument for aligning title to feature that are permanently above sea level (41).

In the same point of discussion to the continental shelf remains also Malaysia. Malaysia's continental shelf claim stems from its own continental shelf act, which it issued in 1966 and in 1969. It was however first with its new map on its territorial waters and continental shelf boundaries published in 1979 that is also claimed the island situated on the shelf. Malaysia's claim based on discovery and occupation of 1979 map of its territorial waters and continental shelf boundaries. The weakness of this <> it could be is occupation and exploitation is relatively recent and that its claim has been consistently rejected by the other littoral states (42).

The ultimate state that participates in the divison of the <> is Brunei. Brunei claim is based in the theory of the prolongation of its continental shelf. This controversy however, can to some degree be explained with the fact that one of the two features situated within the Brunei and claimed continental shelf does not show above sea level and thus legally is considered part of the continental shelf. In 1982 Brunei claimed a 200 nautical mile fishing zone and in 1984 it claimed a 200 nautical mile exclusive economic zone (43).

The SCS encompasses a dense system of vital elements of the regions basis of existence, like:

a) Fisheries: More significanlty the animal protein from fisheries in the region is steadily rising with population growth and urbanisation;

b) Water resources: the SCS is believed to contain considerable amounts of petroleum and gas resources thought some argue that the reports are greatly exaggerated. Much of the resources would only be representing a long-term or at last higtly speculative. Drilling will have to be conducted in even resources can be proven to exist a serious oil companies are unlikely to drill for oil until they known on whose continental shelf they are drilling (44);

c) Strategic area: In 1994 more than 200 ships passed through the daily and the frequency is probably higher today. The SCS is known to be an area troubled by piracy and as long as no state enjoys jurisdictions in those waters the fighting of pirates remains a difficult task;

d) Environment: The SCS also faces enormous environmental hazards in consequence of being shipping route for oil and even nuclear waste which could be released in the event of an accident or military clash in the reef studded waters.

A problem is that all the Spartly islands (45) have in common the monsoon waves. According to article 121.1 does not seem to require absolute permanence above high water. On the other hand all the region that occupied the islands there is not enough to escape the requirements defined in 121.3 (46). The Spratly islands are very small islands that in accordance with the argument made the basis for a grant rocks. Some of the fringing reefs of this feature show above water at low tide and may therefore be used as base-points in the baseline for measuring its territorial sea. A belt of internal waters will thus appear between the cay and its surrounding reefs and the total maritime belt will reach beyond 12 nautical miles from the low water line of the cay itself. A major party of the reefs is occupied from Malaysia and thus there would be no need for delimitation between the reef and the opposing coast. It is also obvious that military troops cannot be used as proof of human habitational there are no records of any vegetation or any natural resources on this feature. Reefs measuring on nautical mile wide surround a lagoon, several patches of coral uncover and between them are channels with depts from 1 to 40 meters. This feature represents a dubious attempt to create an island capable of generating extensive maritime zones. The single rock that stands above water at high however, classifies the feature as in island and it can thus generate a territorial sea and a contiguous zone. There is also explaine the thesis of a tourism as well as fisheries and production of oil in that local resources are being used. If an island has local natural resources that can support a sustainable economic life one should think that the conditions of article 121.3 is fulfilled. In all cases of maritime delimitation the overall goal is to reach an equitable conclusion (47). ln the delimitation of the maritime zones is the SCS would no doubt be such more practical of none of the Spratly islands were granted more than a territorial sea and a contiguous zone. Consideration of equity also supports this solution since if one or a couple of islands should have the right of an EEZ and a continental shelf it would give an unreasonble gain for the state holding sovereignty to those particular islands. The SCS (48) we think that is a cause that want to aggravated tension in the region. Multilateral discussion groups have been established and have developed a forum for stabilising this tension to some degree. Many times the question as to whether or not any of the features has capacity to generate extensive maritime zones certainly is one such question. If the I.C.J. or the ruling world at the same time be likely to clarify one of the most ambiguous articles in the UNCLOS (49).

I would like to pass in one second point: this of the protection of the environment in the area that we have just analysed above. The environment is under great stree due to economic growth and demographic expansion and environmental challenges are numerous both on land and at sea (50). Air, land and sea suffer for the resulting effects of economic and population growth. Environmental issue is the discussion in national level for a long time. Institutions dealing with the regional maritime situation are flurishing. Some are supported and organised under the Association of South East Asian Nations (ASEAN) umbrella, others are organisations within the United Nations system like the U.N. Environmental Program (UNEP) (51), the U.N. Development Program (UNDP), U.N. Economic and Social Commission for Asia Pacific. The involvement of international organisations of the United Nations system in the SCS area may represent an integrative force bringing regional experts together, creating transnational networks where scientist are able to talk openly and discuss marine environmental problems.

Informal discussions had initiated with the aim of improving the diplomatic climate in the region after the confrontation mentioned above between China and Vietnam in the Spartly area in 1988. The spirit of conflict between China and Vietnam for the Spratly islands has threaten the security environment of entire region. The main idea, that we have just critisized was the discussion for the management for the sea with reference to the posision of the United Nations Convention on the Law of the Sea (UNCLOS) of 1982. Another initiative was emerged with a collaborative project between littoral countries of the region and UNEP with initial funding from the global environment facility. A transboundary diagnostic analysis (TDA) was formulate by UNEP in the period of 1997. The first problem was the analysis for the approaches tramit state and non state intervention at a regional level within the framework of management and protection of marine resources of the SCS. The co-operation will be based on the balance which is produced from the international law and with the emphasizing of the territorial conflict and stalemates in terms of a balance of power allowing all that have interest for the area to approach the regional political dialogue (52).

The political reactions to the smoke haze forest fires in Indonesia and East Malaysia in 1997, leading to the ASEAN regional haze action plan53, suggest that environmental problems in East Asia may gain more political attention in the years to come. Protection of the marine environment demands a multifaceted approach where several governmental agencies work together, since pollution often affects many sectors at the same time. The inter state rivality that we have noticed may obstruct co-operation on ocean management in the SCS. The concern for the protection in the area of SCS has initiated from 1972 with a large numbers of initiatives that begun with United Nations Conference on the Human Environment (UNCHE), known as the Stockholm Conference and the establishment of the U.N. environmental programme in the same year. Environmental questions were addressed at the 1992 United Nations Conference on Environment and Development in Rio De Janeiro, Brazil, which addressed problems of marine pollution and sustainable approaches to ocean and coastal governance. Initiatives relevant to the SCS has been established with much work from ASEAN (54).

We have just said the significance for this area, a region with many coral reefs, mangrooves, seagrass, which created a unique biodiversity and an important heritage of mankind (55). The threats for the region is the degrade quality of the water, the pollution which provocated changes to the environment threaten in coral reefs, marine life and the livelihood of fishermen and hoteliers. Another problem of the region is the erosion, which is helped from the source of pollution and a solid waste from the big cities (56).

The SCS is very important for the fisheries section. Is the 19th classified in the world in the sector of marine production. Increased fishing threats the environment. The pressure on coastal fish stocks is going due to the introduction of modern fishing techniques like trawling. Primitive destructing fishing methods are still used in Indonesia, Vietnam, China and the Philippines. These of explosives and chemicals destroys coral reefs and habitats of species as well as their bring grounds. The littorals, mostly developing countries, recognise that fish is a resource that may be threated in the current trend continues but they also need the fish to feed their populations and to uphold industries based on fishery products (57). The diversity of coral reefs is very high. Coral reefs are in may ways similar to tropical rainforests. Biodiversity is high, reefs fix nitrogen and sequester carbon and they provide a visual display of colour and life unmatched anywhere on earth. Seagrass is a basis for many complex marine ecosystems and provides a valuable murcery for commercially important fish and other living resources. Diverse ecosystems in the area when trying to build political support for creating a regional regime of environmental protection and resource management. The loss of coral reefs mangroves, estuaries and seagrass beds can have serious long-term consequences because of the time these ecosystems need to recover after damage. Between the programes of marine protection in the lieu of U.N. we could mentioned the East Asian action plan which is adopted in 1981, Singapore and Thailand had signed the plan with the intention of promoting development and protection of the environment and coastal areas, the ASEAN environment programmes have implemented since 1977. The UNEP partnership with ASEAN has resulted in the foundation of the ASEAN expert group on environment and ASEAN Senior Officials of Environment (ASOEN) who have both been central players. ASEAN has also serious expert groups and committees with a focus on the environment, like the ASEAN Expert Group on Environment (AEGE) and ASEAN Senior Officials on Environment (ASOEN), the ASEAN Committee on Science and Technology (COST), the ASEAN subcommitee on marine sciences. We adjust also the Southeast Asian Programme in Ocean Law Policy and Management (SEAPOL) is another network which try to increase the ability of states and to comply with international maritime obligation through a series of workshops. SEAPOL is also a help programe in regional and national level, like the cooperation with the Maritime Institute of Malaysia (MIMA), the Philippine Institute of Marine affairs (PHILMA) and the Thailand Institute for Marine Affairs (TIMA).

Besides the fact that we have mentioned all these organs, programmes, cooperation in international and national level, we could say that here are binding instruments like framework conventions, protocols of action plans which is part the SCS and the littoral states surrounding it, do not have any regional instrument to manage and protect common marine resources (58). Governments can not figure out what and how they can be delt with effectively. Environnmental diplomacy, aiming at creating effective maritime regimes a regional level. A requisite for a SCS maritime regime is therefore that technical elites in the region co-operate and develop the necessary skills to do the research and mapping needed to implement an efficient maritime regime. Althought there is a lack of a binding environmental agreement among SCS littorals, ASEAN has achieved a lot in terms of bringing the ASEAN member states together in maritime environmental projects (59). The ASEAN Subcommittee on Marine Sources (ASCMS) and the ASEAN Senior Officials on Environment (ASOEN) have been responsible for co-operative projects with Australia, thus the ASEAN-Australia marine Science programme, Canada, the ASEAN Canadian marine Pollution programme, the U.S.A., thus ASEAN-U.S. Aid Coastal Resources management programme, Japan, the Republic of Korea and the E.U. (60).

We must mentioned also the role of the Asian Development Bank (ADB) (61) with the assistance from the Swedish International Development Cooperation (SIDA) which has been managing a project since 1993 called coastal and marine environmental management in the SCS. This regional programme has been successful in bringing national and local governments, industry, donor agencies and organisations in the international community together in environmental management projects in three selected sites. The Coordinating Body for the Seas of East Asia (COBSEA) is the decision-making body whereas the UNEP East Asian Sea Regional Coordinating Unit (EAS/RCU) is the Secretariat responsible for implementation of scientific programmes and integration of national activities. COBSEA undertakes a wide range of projects that aim to support management of the coastal marine environment and marine protected areas. The UNEP EAS/RCU has been working for the establishment of a SCS Strategic Action programe since 1994 when Australia, Cambodia, South Korea, China and Vietnam joined the COBSEA. The UNEP initiative which was aimed at improving management and protection of the marine environment of the SCS ran into difficulties, because China has unresolved sovereignty conflicts with its Southeast Asian neigbours. UNEP and the regional community have succeeded in bringing environmental issues of concern to the attention of the governments in the region (62), they have succeded in pin-pointing the important issues, and they have prescribed the steps to be taken. In the strategic programme for the SCS priorities for action are spelled out as being: endorsing a legal framework for regional co-operation preparing maps and inventories to achieve the aims of the programme, developing a network of databases through the region to facilate programme goals. In the SCS the closet we can get to the process of regime strengthening is actually through the two initiatives that have been discussed above. The SCS evolution is original an attempt by the ASEAN states to prepare the implementation of UNCLOS in the region. The UNEP initiative can be seen as an attempt at amending an existing agreement namely the East Asian Seas Action Plan, which could redict activities from scientific based activities to a more comprehensive holistic management and action oriented approach (63).

Explicit and implicit regimes in the region are based on formal rules and institutional mechanisms. Implicit regimes for example are normally built on a desire to co-operate and find common solutions to shared problems. In the SCS region, an implicit regime has emerged based on various agreements and arrangements between two or more ASEAN states, such as in the Malacca strait and the Gulf of Thailnad. The programmes of cooperation tramit the lieu of ASEAN has been tried out within the context of the SCS, also involving powers outside of ASEAN. In some respects this regime building process has been successful in the agreement has been reached on common areas of interest where project proposals have been forwarded for implementation and talks are held annually under peaceful circumstances. The ASEAN protections represents an impediment to establishing regional regulatory instruments. The ASEAN members recognise the need for conservationist programmes, they continue to implement production oriented politics and encourage their fishermen to catch more and more living resources.

In conclusion we could say that the UNEP initative aimed at improving the current situation by mobilising forces throught the region to build capacity, integrating government agencies and encouraging joint research. UNEP has in act since the beginning of the 1980s when five to the ASEAN countries requested that in develop an action plan for the East Asian Seas aimed at improving capabilities, government actions and the marine environment in general (64). The transfery of the ideology to the SCS region and lock for an environmental crisis, the forest fores in Indonesia and Malaysia come to mind. Governments of the region should have start to think and act seriously on environmental questions as a consequence of the crisis. The SCS as well as the entire Asia Pacific is facing a rise of severe transnational problems related to the environment (65). Transboundary environmental problems related to the environmental problems have or the first time been documented, published and brought to the attention of governments by UNEP. Globalisation causes new pressure on States to confrom to international standards of governance, economic interdependence and a rise of new actors challenging state authority (66).

(1) <>, Article 122 of the 1982 U.N. Convention on the law of the sea, UNCLOS.

(2) J. I. CHARNEY, Central East Asian maritime boundaries and the law of the sea, in <>, 1995, pp. 725 ss.

(3) T. CHENG, Communist China and the law of the sea, in <>, 1969, pp. 47

(4) See, J. I. CHARNEY, U.S. provisional application of the 1994 deep seabed agreement, in <>, 1994, pp. 705, <<(...) the act played a role in the U.S. refusal to accept the LOS convention when it as adopted in 1982 by the third United Nations conference on the law of the sea and fostered the twelve additional years of international diplomacy that resulted in the agreement. For the United States provisional application would permit it to participate in the deep seabed regime at an early date. Because of the comprehensive scope of the LOS convention its careful consideration by the Senate for advice and consent to ratification is expected>>; J. R. STEVENSON, B. H. OXMAN, The future of the United Nations convention on the law of the sea, in <>, 1994. J. I. CHARNEY, The United States and the revision of the convention on the law of the sea, in <>, 1992.

(5) C. C. JOYNER, The Spratly island dispute: rething in the interplay of law, Diplomacy and geopoltics in the South China Sea (SCS), in <<_he>>, 1998, pp. 195 ss.

(6) G. ROTTEM, Land, island and maritime frontier dispute, in <>, 1993, pp. 620 ss.

(7) Organisation for African Unity., Declaration on issues on the law of the sea, U.N.DOC.A/CONF.61/33, official records, vol. III, 1973, pp. 63 ss.

(8) J. I. CHARNEY, The implications of expanding international dispute settlement systems: the 1982 convention on the law of the sea, in <>, 1996, pp. 70 ss. ID., Entry into force of the 1982 convention on the law of the sea, in <>, 1995, pp. 390 ss.

(9) R. Y. JENNINGS, The acquisition of territory in international law, Manchester University Press, Manchester, 1962, pp. 28 ss.

(10) G. MARSTON, Abandonment of territorial claims: the cases of Bouvet and Spratly islands, in <>, 1986, pp. 344 ss.

(11) J. M. VALENCIA, J. M. VAN DYKE, N. A. LUDWIG, Sharing the resource of the South China sea, Hague, Martinus Nijhoff, 1997, pp. 18 ss.

(12) U.N.DOC.A/CONF.62/122, 1982., United Nations official text of the United Nations Convention on the law of the sea with annexes and index.

(13) D. E. KARL, Islands and the delimitaton on the continental shelf: A framework for analysis, in <>, 1977, pp. 645 ss. J. I. CHARNEY, Progress in international maritime boundary delimitation law, in <>, 1994, pp. 230 ss.

(14) The term island was first examined in the 1930 League of Nations conference for the codification of international law. It was defined as: <>. In additional in the article 10 of the convention on the territorial sea and the contiguous zone the defintion was modified to read: <>.

See, C. R. SYMMONS, The maritime zones of islands in international law, _he Hague: Martinus Nijhoff, 1979. United Nations, United Nations convention on the law of the sea 1982. A commnetary II, Centre for ocean law and policy, London, Martinus Nijhoff, 193, pp. 93 ss. I. L. HERMAN, The modern concept of the off-lying archipelago in international law, XXIII <>, 1985, pp. 190 ss.

(15) According to 76 of UNCLOS the continental shelf of an island also stretches to a distance of 200 nautical miles from the baseline, but has the potential to take up even greater areas seaward if it is naturally prolonged beyond 200 nautical miles. The natural prolongation according to article 76 is the outer end of the continental margin, which comprises the submerged prolongation of the landmass of the coastal state, and consists of the seabed and subsoil of the shelf, the slope and the raise. The natural prolongation is futher limite to 350 nautical miles form the baseline from which the breath of the territorial sea is measured.

(16) G. GALDORISI, The United Nations convention on the law of the sea: A national security perspective, in <>, 1995, pp. 210 ss.

(17) We observe also the definiton of a low tide elevation in aricle 13.1 of the UNCLOS. This article states: <>.

(18) J. I. CHARNEY, Rocks that cannot sustain human habitation, in <>, 1999, pp. 870 ss. B. KWIATKOWSKA and A. H. A. SCONS, Entitlement in maritime areas of rocks which cannot sustain human habitation or economic life of their own, in <>, 1990, pp. 140 ss. D. BOWETT, Islands, rocks, reefs and low-tide elevations in maritime boundary delimitations, in <>, 1979. M. D. BLECHER, Equitable delimitation of continental shelf, in <>, 1979, pp. 60 ss.

(19) Only the features which truly qualify as island according to article 121.1 may generate a maritime zone of its own and only the features coming clear of the exceptions in the rocks paragraph in 121.3 may generate the extensive maritime zones.

(20) HODGSON, Islands, normal and special circumstances, Gamble and Pontecorvo (eds.), Law of the sea. The emerging regime of the oceans, U.S.A., 1973, pp. 148 ss. N. PAPADAKIS, The international legal regime of artificial islands, Leyden, Sijthoff, 1997, pp. 91 ss. JOHNSON, Artificial islands, in <>, 1951, pp. 203 ss. D. W. BOWETT, The legal regime of islands in international law, New York, Oceana Publications, Inc, 1979, pp. 5 ss. C. R. SYMMONS, The maritime zones of islands in international law, the Hague: Martinus Nijhoff, 1979, pp. 45 ss. B. GIDEL, Le droit international public e la mer, 1934, pp. 684 ss. D. H. ANDERSON, Recent boundary agreements in the Southern North Sea, in <>, 1992, pp. 414 ss.

(21) S. ROSENNE, Establishing the international tribunal for the law of the sea, in <>, 1995, pp. 806 ss.

(22) See: In the arbitration on the delimitation of the continental shelf (France v. UK), 1978, in International Legal Materials, Greenland and Jan Mayer (Denmark v. Norway), I.C.J.Reports 1993, pp.38ss; Case concerning the continental shelf (Libya/Malta), I.C.J. Reports 1985, pp.13, para.34, Land, island and maritime frontier dispute case, I.J.C. Reports, 1992, pp.351, para. 383; North sea continental shelf cases (Federal Republic of Germany v. Germany, Federal Republic of Germany v. The Nertherlans), I.C.J. Reports, 1969, pp.3ss, para. 50, Delimitation of the maritime boundary in the Gulf of marine Area, (Canada v. U.S.), I.C.J Reports, 1984, pp.346, para. 327.

Corfu channel case (UK v. Alb) (Merits), 1949, ICJ Rep.4; Fisheries case (UK v. Nor.), 1951 ICJ Rep. 116 (dec.18); North sea continental shelf (FRG/Dcu.; FRG/Neth.), 1969 ICJ Rep. 5 (Feb.20), Fisheries jurisdiction (UK v. Icc.; FRG v. Ice), 1974 ICJ Rep.3. 175 (July 25); Aegean sea continental shelf (Greece v. Turk.), Inerim protection, 1976 ICJ Rep.5 (order of Sept. 11); Continental shelf (Tunis/Libya), 1982 ICJ Rep. 18 (Feb.24); Delimitation of the maritime boundary in the Gulf of maine area (Can. V. U.S.), 1984 ICH Rep. 246 (Oct. 12); Continental shelf (Libya/Malta), 1985 ICJ Rep. 13 (June 3); Application for revision and interpretation of the judgement of 24 February 1982 on the case concerning the continental shelf (Tunisia/Libyan Arab Jamahriya) (Tunis/Libya), 1985 ICJ Rep. 192 (Dec.10); Arbitral award of 31 July 1989 (Guinea- Bissau v. Sen.), provisional measures, 1990 ICJ Rep. 64 (Order of Mar.2); Land, island and maritime frontier dispute (El Sal./Hond. Nicar. Intervening), 1992 ICJ Rep. 351 (Sept.11); Maritime delimitation in the area between Greenland and Jan Mayen (Den v. Nor.), 1993 ICJ Rep. 98 (June 14); Qatar v. Bahr.), Jurisdiction and admissibility, 1995 ICJ Rep. 6 (Feb. 15); Arbitral award of 31 July 1989 (Guinea-Bissau v. Sen.), 1989 ICJ Rep. 126; Communique No. 99, 457 (June 22); Fisheries jurisdiction (Spain v. Can.) 1995 ICJ Rep. 87 (Order of May 2). In August 1995 and attempt was made to revive the nuclear teste cases (Aust. V. France; New Zeland v. France), 1973 ICJ Rep. 99, 457 (June 22), which might have involved law of the sea issues, but the request was dismissed by the Court, request for an examination of the situation in accordance with paragraph 65 of the Court's judgement of 20 December 1974 in the nuclear tests case, 1995 ICJ Rep. 298 (order of September 22). Delimitation of the continental shelf (UK/Fr.), 18 R.I.A.A. 3, 18 International Legal Materials 1979, pp.397; Conciliation commission on the continental shelf area between Iceland and Jan Mayen, Report and recommendations to the governments of Iceland and Norway, 20 International Legal Materials, 1981, pp.767ss; Maritime boundary (Guinea/Guinea-Bissau), in International Legal Materials, 1966, pp.252; Delimitation of the maritime areas between Canada and France (St. Pierre and Miquelon), in Internatonal Legal Materials 1992, pp. 1149.

See: R. ROSSI, Equity and international law: a legal realist approach to international decision making, 1993, pp. 215 ss. S. ODA, Further thoughts on the chambers procure of the International Court of Justice, in <>, 1988, pp. 566. M. SCHWEBEL, An hoc chambers of the International Court of Justice, in <>, 1987, pp. 831. R. DAVIS, D. A. COLSON, B. C. RASHKOW, Some perspectives on adjudicating before the world court: The Gulf of Maine case, in <>, 1985, pp. 578 ss. P. H. F. BEKKER, International legal aid in practice. The ICJ trust Fund, in <>, 1993, pp. 659 ss. J. I. CHARNEY, Universal international law, in <>, 1993, pp. 529 ss. L. B. SOHN, Broading the advisory jurisdiction of the Internationl Court of Justice, in <>, 1983, pp. 125 ss. BLECHER, Equitable delimitation of continental shelf, in <>, 1979, pp. 60 ss. BOWETT, The arbitration between the United Kingdom and France concerning the continental shelf, in <>, 1978. McRAE, Delimitation of the continental shelf between the United Kingdom and France, in <>, 1977. QUENEUDEC, L'affairs e la delimitation du plateau continental entre la France et la Playeume- Uni, in <>, 1979, pp. 53 ss. M. M. WHITEMAN, Conference on the law of the sea: Convention of the continental shelf, in <>, 1958, pp. 630 ss. A. DE MARFFY-MANTUANO, The procedural framework of the agreement implementing the 1982 United Nations Convention on the law of the sea, in <>, 1995, pp. 815 ss. BOWETT, The arbitration between the United Kingdom and France concerning the continental shelf boundary in the english channel and South-western approaches, in <>, 1978, pp. 14 ss. M. EVANS, Relevant circumstances and maritime delimitation, 1989. MARCK, Le probleme des sources du droit international dans de arret sur le pluteau continental de la mer du Nord, in <>, 1970-1971, pp. 79 ss. H. LAUTEERPACHT, The function of law in the international community, 1933, pp. 320 ss.

(23) L. D. M. NELSON, The roles of equity in the delimitation of maritime boundaries, in <>, 1990, pp. 837 ss. JENNINGS, Equity and equitable principles, in <>, 1986, pp. 32. L. W. FINLAY, The outer limit of the continental shelf: A rejoinder to professor Louis Henkin, in <>, 1970, pp. 50 ss. R. LAGONI, Interim measures pending maritime delimitation agreements, in <>, 1984, pp. 345 ss.

(24) P. ALLOTT, Power sharing in the law of the sea, in <>, 1983, pp. 1 ss, <<(...) the nature of the consensus process raises special problems in relation to travaux preparatoires. In the case of the LOS convention the probelem in exceptionally acute. The convention is not quite in the happy position of the treaty establishing the european economic community, for example, which has no effective travaux at all and whose interpretation and application has been much assisted by their absence (...) both the layering of legal relations and the delegation of powers are boundary phenomena. My right may begin where someone else's right ends. The more extensive my power, the more limited someone else's freedom. The boundaries between powers are expressed by power modifier, what in english administrative law is called the fettring of powers. The fizing of these power modifies is a major part of the process of negotiation and compromise at international conferences (...)>>.

ADEDE, Law of the sea: tenth scope of third-party, compulsory procedures for the settlement of disputes, in <>, 1977.

(25) R. R. BAXTER, Multilateral treaties as evidence of customary international law, in <<_he>>, 1965-1866, pp. 280 ss.

(26) Some bilateral treaties may also be of support when attempting to clarify the meaning of article 121.3 and to determine the significance of islands in maritime disputes.

a) Argentine and Chile settled a dispute concerning islands off the coast of Fierra del Fuego in the Beagle channel;

b) Indonesia and Malaysia gave reduced value to Indonesia's nature islands, apparently because of their remoteness and size and perhaps out of sense of fairness to Malaysia which did not have a corresponding insular formation off it cost;

c) Colombia and Panama gave reduced weight to Colombia's Malpelo island when they delimite their Pacific ocean boundary, possible on account of its small size and distant location;

d) Iran and U.A.E (Dubai) and between Iran and Quatar, a seeming of different approach was taken when the off lying islands were ignored totally in the delimitation because the ownership of the islands were disputed and the status of the islands were indeterminate;

e) the maritime boundary between the Norwegian island of Jan Mayen and the country Iceland was determined partly by agreement and partly by a conciliation commission established by the two nations;

f) in the Adriatic sea a number of small islands between Italy and Yugoslavia were given partial effect in delimitation. ln the island of Kharg was similarly given half effect in the delimitation between Iran and Saudi Arabia.

See, J. M. VAN DYKE, A. R. BROOKS, Uninhabitated islands: their impact on the ownership of the oceans resources, in <>, 1983, pp. 290 ss.

(27) G. I. KOFOS, The Vienna convention of the law of the treaties, second edition, Ed. Sakkoulas, 2001, (in greek).

(28) McNAIR, The law of treaties, Oxford, 1986.

(29) W. HIRAN, The regime of islands in international low, Dordrech: Martinus Nijhoff, 1990, pp. 10 ss.

(30) According to article 57 of the UNCLOS, the eclusive economic zones of an island stretches to a maximum of 200 nautical miles from the baseline of that islands. Most importantly the state has sovereign rights for the purposes of exploiting and exploring the natural resources, whether living of the sea, seabed and subsoil in that area.

(31 The doctrine of the continental shelf streches to at least 200 nautical miles was examined by the I.C.J. in the 1969 North sea continental shelf cases. The court came to the conclusion that the doctrine had been part of the international customary law since 1958. North see continental cases, I.C.J. Reports, 1969, pp. 3 ss.

(32) According to article 3 of the UNCOLS,. The territorial sea of an island stretches to a maximum of 12 nautical miles measured from the baseline of that island. The territorial sea is legally an extension of the state's territorial sovereignty. According to article 2, the state is given exclusive sovereingty to the airspace over this area as well as its waters, seabed and subsoil. The contiguous zone according to the article 33 of the UNCOLS stratches to a maximum of 24 nautical measure from the baseline by the jurisdiction in this zone is limited to exercizing rights concerning customs, fiscal issues, immigration or sanitary laws and regulations. In a zone contiguous to its territorial sea, described as the contiguous zone, the coastal state may exercise the control necessary to

a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations in this territory or territorial sea;

b) punish infringement of the above laws and regulations commited within its territory or territorial sea.

(33) B. BUZAN, Negotiating by consensus. Developing in technique at the United Nations conference on the law of the sea, in <>, 1981, pp. 325 ss.

(34) R. HELLER-TROST, International law and the history of the claims to the Spratly islands, in <>, 1994, pp. 11 ss.

(35) Fisheries case (UK v. Norway), I.C.J, Reports 1951, pp.116.

(36) M. NASH (LECH), Contemporary practice of the United States relating to international law, in <>, 1994, pp. 720 ss.

(37) G. AUSTIN, China's ocean frontier: international law, military force and national development, Canberra, Australian National University, 1998, pp. 145 ss. R. Y. JENNINGS, The acquisition of territory in international law, Mancester, University Press, 1963, pp. 96.

(38) M. C. VALERO, Spratly arcipelago discource: is the question of sovereingty still relevant?, in <>, 1994, pp. 325 ss.

(39) J. MORTON MOORE, Foreign policy and fidelity to law: The anatomy of a treaty violation, in <>, 1976, pp. 820 ss.

(40) J. M. VAN DYKE, R. A. BROOKS, Uninhabited islands: their impact on the ownership of the oceans resourcs, in <>, 1983, pp. 265 ss.

(41) Conservation of fish in the western and central Pacific ocean, in American Journal of International Law, 2001, pp 155ss, <<(...) the area of competence is definied geographically to cover an area spanning the high seas and the portions of the exclusive economic zones of coastal states, thus allowing the commission to adopt regulatory measures covering waters under national jurisdiction. In particular the convention procides that the principles and measures for conservation and management enumerate for the work of the commission also shall be applied by coastal states within areas under national jurisdiction in the convention area (...) the convention proceedes not only that state parties may participate as members in the commission's work but also that fishing entities may participate. On the condition that the fishing entity agrees to be bound by the regime of the convention, the fishing entity will have virtually all the rights and obligations of members of the commission. Althought it has the sixth largest fishing fleet in the wolrd. Taiwan previsouly has not able to participate meaningfully in global or regional fishing agreements (...)>>.

(42) S. HEI-YANN, Managing potential conflicts in the South China Sea. Taiwan's perspective. Singapore: Singapore University Press, East Asian Institute occasional paper, n. 14, 1999.

(43) B. KWIATKOWSKA, The 200 mile exclusive economic zone in the new law of the sea, Dordrecht: Martinus Nijhoff, 1989

(44) S. TONNESSON, Resolving the South China Sea conflict, Draft report to the norwegian Ministry of Foreign Affairs, 1998, pp. 15 ss.

(45) G. MARSON, Abandonment of territorial claims: the cases of Bouvet and Spratly islands, in <>, 1986, pp. 338 ss. W. J. McMANUS, The Spratly islands: A marine park?, in <>, 1994, pp. 180 ss.

(46) J. GUOXING, The Spartly disputes and prospects for settlement, in <>, IIS, paper, Malaysia, 1994. M. BENNET, The people's Republic of China and the use of international law in the Spartly island dispute, in <>, 1992, pp. 425 ss.

(47) J. D. ATTARD, The exclusive economic zone in international law, Oxford: Clarendon Press, 1987. BRODER, VAN DYKE, Ocean boundaries in the South Pacific, in <>, 1982 I. J. CHARNEY, The exclusive economic zone and public international law, in <>, 1985. T. CHENG, The dispute over the South China sea islands, in <>, 1983, pp. 265 ss. J. CRAWFORD, R. D. ROTHWELL, The law of the sea in the Asian Pacific region, Dordrecht: Martinus Nijhoff, 1995. W. H. JAYEWARDENE, The regime of islands in international law, Dordrecht: Martinus Nijhoff, 1990. K. KITTICHAISARCEE, The law of the sea and maritime boundary delimitation in South- East Asia, Oxford, University Press, 1987. B. A. RAMAKRISHNA, Outer limits of continental shelf: A legal analysis of chilean and ecuadorian island claims and U.S. response, in <>, 1987. W. R. SMITH, Exclusive economic zone claims. An analysis and primary documents, Dordrecht: Martinus Nijhoff, 1986.

(48) K. T. J. CHAO, South China sea: Boundary problems relating to the Nasha and Hsiha islands, in <>, 1990, pp. 70 ss.

(49) H. B. OXMAN, The UNCLOS, the ninth session 1980, in <>, 1981, pp. 200 ss.

(50) E. ADLER, P. M. HAAS, Conclusion: epistemic communites, world order and the creation of a reflective research program, in <>, 1992, pp. 1 ss.

(51) UNEP, Regional coordinating Unit/East Asian seas plan. East Asian seas regional report on the issues and activities associated with coral reefs and related ecosystem, Bangkok, Bangkok: UNEP RCU/EAS, RCU/EAS Technical reports series n. 11, 1997.

(52) B. CATLEY, M. KELIAT, Spratlys: the dispute in the South China Sea, Singapore, Ashgate, 1997.

(53) ASEAN, ASEAN strategic plan of action on the environment, Jakarta: ASEAN Secretariat, 1994. ASEAN, _he first ASEAN state of the environment report, Japarta: ASEAN Secretariat, 1998.

(54) R. CASTRO, The controversy in the Spratlys: Exploring the limits to ASEAN's engagement policy, in <>, 1998, pp. 95 ss.

(55) A. F. PANZERA, Patrimonio comune dell' umanita, protezione dell' ambiente marino e convenzione delle Nazioni Unite sul diritto del mare, in <>, 1984, pp. 70 ss. A. PARDO, The common heritage, Selected papers on oceans and worked order, Malta 1975.

(56) D. ROSENBERG, Environmental pollution around the South China Sea: Developing a regional response, in <>, 1999.

(57) S. BATEMAN, S. BATES, The seas unite: Maritime cooperation in the Asia Pacific region. Canberra. Australian national University. Canberra papers on strategy and defence, n. 118, 1886.

(58) T. E. CHUA, D. PAULY, Coastal management in Southeast Asia: policies, management strategies and case studies, Manila, ICLARM, ICLARM Conference proceedings 19, 1989.

(59) T. E. CHUNA, Managing coastal resources for sustainable development: The ASEAN initiative, in Chua and Scura., Managing ASEAN's coastal resources for sustainable development: roles of policymakers, scientists, donors, media and communities, Manila, ICLARM, ICLARM Conference proceedings 30, 1991.

(60) H. BROOKFIELD, Y. BYRON, South-east Asia's environmental future. The search for sustainability. The United Nations University. Kuala Lumpur: Oxford, University Press, 1993.

(61) C. BLEAKLEY, S. WELLS, Marine region: East Asian seas. A report to the World Bank environment department, 1999.

(62) A. DUPONT, The environment and security in Pacific Asia, in <>, 1998.

(63) G. S. HEAMS, W. C. STORMONT, Managing potential conflicts in the South China Sea, in <>, 1996, pp. 178 ss.

(64) F. MAGNO, Environmental security in the South China Sea, in <>, vol. 28, pp. 100 ss.

(65) J. D. JOHNSTON, Marine pollution agreements: successes and problems, in J. E. CARROLL, International environmental diplomacy: the managment and resolution of transfrontier problems, Cambridge University Press, Cambridge, 1988.

(66) T. LEE LAI, The South China Sea: China and multlateral dialogues, in <>, 1998, pp. 170 ss.

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