Abstract
The prominent sources of written laws and treaties in the modern legal system on the sea are the 1958 Geneva Conventions on the Law of the Sea and the United Nations Convention on the Law of the Sea (UNCLOS).
This chapter is a research outcome of a major project on Marine Exploitation and Utilization System under the Framework of the Law of the Sea funded by China Association of Marine Affairs and Academy of Ocean of China (CAMAZDA201701) and of a general project on Marine Policies and Legal System in the New China: Review and Prospect funded by Shanghai Planning Office of Philosophy and Social Science (2017BHB005).
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Notes
- 1.
The modern system on the law of the sea herein specially refers to written laws or treaties on the basis of compiling customary international law. Among them, the Geneva Conventions on the Law of the Sea includes four conventions which are Convention on the Territorial Sea and the Contiguous Zone (adopted on April 29, 1958 and became effective as from Sept 10, 1964), Convention on the High Seas (adopted on April 29, 1958 and became effective as from Sept 30, 1962), Convention on Fishing and Conservation of the Living Resources of the High Seas (adopted on April 29, 1958 and became effective as from Mar 29, 1966), Convention on the Continental Shelf (adopted on April 29, 1958 and became effective as from June 10, 1964) and Optional Protocol of Signature Concerning the Compulsory Settlement of Disputes (adopted on April 29, 1958 and became effective as from Sept 30, 1962). See International Law Teaching and Research Office of Law Department of Peking University (editor): Compilation of Materials on the Law of the Sea, the People's Publishing House, 1974 Version, pp. 197–263. In the First UN Conference on the Law of the Sea, besides the four Geneva conventions on the law of the sea, the Optional Protocol of Signature concerning the Compulsory Settlement of Disputes was also adopted, but it is not a part of four Geneva Conventions on the Law of the Sea because its Article 5 sets forth that this Protocol shall remain open for signature by all States who become Parties to any Convention on the Law of the Sea adopted by the United Nations Conference on the Law of the Sea and is subject to ratification where necessary, according to the constitutional requirements of the signatory States.
- 2.
The nature of the United Nations Convention on the Law of the Sea as a “Charter” is mainly shown in the completeness of its content and the authority of its status. The “completeness” refers to rich and comprehensive content of the text of and appendixes to United Nations Convention on the Law of the Sea; the “authority” means that the United Nations Convention on the Law of the Sea does not only incorporate customary international laws but also enjoys attributes and characteristics beyond the system of Geneva Conventions on the Law of the Sea.
- 3.
See https://www.un.org/depts/los/reference_files/status2018.pdf, visited on August 23, 2018.
- 4.
For example, Article 26 of Vienna Convention on the Law of Treaties and Article 300 of the United Nations Convention on the Law of the Sea.
- 5.
For example, Resolution (A/RES/70/118) on the rule of law at the national and international levels adopted by the General Assembly on 14 December 2015 on the report of the Sixth Committee (A/70/511) sets forth that the General Assembly reaffirms the need for universal adherence to and implementation of the rule of law at both the national and international levels and its solemn commitment to an international order based on the rule of law and international law, which, together with the principles of justice, is essential for peaceful coexistence and cooperation among States.
- 6.
The relationship between the Agreement on Implement of Part XI and the United Nations Convention on the Law of the Sea is set forth in the Paragraph 1 of Article 2 of the Agreement on Implement of Part XI, while the relationship between the Implementation Agreement on Straddling Fish Stocks and the United Nations Convention on the Law of the Sea is set forth in Article 4 of Implementation Agreement on Straddling Fish Stocks.
- 7.
- 8.
See Yongming (2018a).
- 9.
- 10.
See ICJ Reports, 1969, p. 51, para. 96.
- 11.
See ICJ Reports, 1978, pp. 3–83.
- 12.
See ICJ Reports, 2009, pp. 61–134.
- 13.
See ICJ Reports, 1969, p. 51, para. 96.
- 14.
See ICJ Reports, 1978, pp. 3–83. Also see Ozaki (1996).
- 15.
For example, Article 2 of the Convention on the High Seas and Article 87 of the United Nations Convention on the Law of the Sea.
- 16.
For example, Article 1 of the Convention on the High Seas and Article 86 of the United Nations Convention on the Law of the Sea.
- 17.
With regard to marine scientific research, Article 240 of the United Nations Convention on the Law of the Sea sets forth both the content and the principles and Paragraph 2 of Article 246 of the United Nations Convention on the Law of the Sea indirectly shows its definition. Article 5 of the Convention on the Continental Shelf , according to the nature of marine scientific research, divides it into two types: the first one is the basic marine research just for scientific purpose, i.e. purely marine scientific research; the second one is the practically marine scientific research for the economic purpose of exploring and exploiting resources of the continental shelf. Meanwhile, the requirements for the two different natures of marine scientific research are different. For the purely marine scientific research, the principle of freedom of the high seas may be applicable only when the research is carried out with the intention of open publication; for the practical marine scientific research , the consent of the coastal State shall be obtained. In addition, the coastal State shall not normally withhold its consent if the request is submitted with a view to purely scientific research into the physical or biological characteristics of the continental shelf; while the coastal State has a great discretion in approving or rejecting the application for practically marine scientific research. See Yamamoto (2000).
- 18.
The articles in the system of the United Nations Convention on the Law of the Sea concerning due regard including reasonable regard and special consideration are Paragraph 4 of Article 27, Paragraph 2 of Article 56, Paragraph 3 of Article 58, Paragraph 2 of Article 87, Article 147 to Article 149.
- 19.
For example, the International Court of Justice stated in the judgment of Fisheries Jurisdiction Case that with the increasing scope of fisheries activities, the result of the development of marine international law is that the former laissez-faire treatment of the living resources of the sea in the high seas has been replaced by a recognition of a duty to have due regard to the rights of other States and the needs of conservation for the benefit of all. See Shigeki Sakamoto, The Impact of Expanded Functions of Regional Fisheries Management Agency on the Development of International Law: From Fisheries Regulation to Marine Management, The Practice of International Law edited by ShunjiYanai, Shinya Murase, Shinzansha, 2015 Edition, p. 459.
- 20.
- 21.
See Mizukami (2004).
- 22.
For example, Article 3, Paragraph 2 of Article 33, Article 57, Paragraph 1, Paragraph 4 and Paragraph 5 of Article 76 of the United Nations Convention on the Law of the Sea.
- 23.
Paragraph 3 of Article 77 of the United Nations Convention on the Law of the Sea set forth the rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation.
- 24.
For example, Paragraph 8 of Article 76, Article 153 of the United Nations Convention on the Law of the Sea.
- 25.
According to the Three-stage Delimitation Methodology, the first stage is to draw a provisional delimitation line or a median line; the second stage is to weigh relevant facts for achieving equitable results and discuss whether it is necessary to adjust the provisional equidistance line or median line; the last stage is to check the proportion between the length of the coastline and the size of allocated maritime zones and determine whether such line leads to unfair result for further adjustment. See ICJ Reports, 2009, pp. 101–103, paras.115–122.
- 26.
For example, Article 136, Article 154, Paragraph 6 of Article 311, Article 156, Paragraph 1 of Article 157, Paragraph 2 of Article 140 of the United Nations Convention on the Law of the Sea.
- 27.
Tieya (2004).
- 28.
- 29.
Sugihara (12, pp. 78–79). Also see ICJ Reports, 1988, pp. 34–35, para.57; Vienna Convention on the Law of Treatise, Article 27.
- 30.
See Constitution of the People’s Republic of China, Law Press, 2018, pp. 1–56.
- 31.
There is no such provision as Article 142 of the General Provisions in the General Principles of the Civil Law (entered into force on October 1, 2017) adopted at the Fifth Session of the 12th National People’s Congress on March 15, 2017.
- 32.
See Lingliang and Rao (2005).
- 33.
Although there are disputes over the level and effectiveness between international law and domestic law, treaty prevails over domestic law from the legislation and practice of China. See Zhou (2004).
- 34.
See Office of Policy, Law and Regulation State Oceanic Administration Editor, Collection of the Sea Laws and Regulations of the People’s Republic of China, 3rd edition, Ocean Press, 2001 Edition, pp. 197–198.
- 35.
See Office of Policy, Law and Regulation State Oceanic Administration Editor, Collection of the Sea Laws and Regulations of the People’s Republic of China, 3rd edition, Ocean Press, 2001 Edition, pp. 206–209.
- 36.
See Office of Policy, Law and Regulation State Oceanic Administration Editor, Collection of the Sea Laws and Regulations of the People’s Republic of China, 3rd edition, Ocean Press, 2001 Edition, pp. 199–200.
- 37.
For details on the Statement of People’s Republic of China on the Baselines of the Territorial Sea of Diaoyu Dao and Its Affiliated Islands, see https://www.gov.cn/jrzg/2012-09/10/content_2221140.htm, visited on September 11, 2012. Meanwhile, in order to deal with the safety of flight in airspace over the East China Sea including sea areas surrounding Diaoyu Dao, Ministry of National Defense of China announced the Declaration of China on Establishing Air Defense Zone of East China Sea on Nov. 23, 2013 according to international customs and national laws and published the Announcement of China of Rules on Identifying Aircrafts in Air Defense Identification Zone of East China Sea . See https://www.gov.cn/jrzg/2013-11/content_2533099(or2,533,101).htm, visited on Nov. 25, 2013.
- 38.
See Office of Policy, Law and Regulation State Oceanic Administration Editor, Collection of the Sea Laws and Regulations of the People’s Republic of China, 3rd edition, Ocean Press, 2001 Edition, pp. 201–205.
- 39.
See Office of Policy, Law and Regulation State Oceanic Administration Editor, Collection of the Sea Laws and Regulations of the People’s Republic of China, 3rd edition, Ocean Press, 2001 Edition, pp. 210–215.
- 40.
Department of Policy, Legislation and Planning State Oceanic Administration Editor, Collection of the Sea Laws and Regulations of the People’s Republic of China, 4th Edition, Ocean Press, 2012 Edition, pp. 336–249.
- 41.
Law of the People's Republic of China on the Exploration and Development of Resources in Deep Seabed Areas consists of 7 chapters and 29 articles. For details, see Law of the People's Republic of China on the Exploration and Development of Resources in Deep Seabed Areas (including the explanation of the draft), China Legal Publishing House, 2016 Edition, pp. 2–12.
- 42.
See https://www.npc.cn/zgrdw/npc/zfjc/zfjcelys/2018-11/12/content_2065782.htm, visited on June 25, 2020.
- 43.
Department of Policy, Legislation and Planning State Oceanic Administration Editor, Collection of the Sea Laws and Regulations of the People’s Republic of China, 4th Edition, Ocean Press, 2012 Edition, pp. 366–375.
- 44.
Department of Policy, Legislation and Planning State Oceanic Administration Editor, Collection of the Sea Laws and Regulations of the People’s Republic of China, 4th Edition, Ocean Press, 2012 Edition, pp. 494–498.
- 45.
Department of Policy, Legislation and Planning State Oceanic Administration Editor, Collection of the Sea Laws and Regulations of the People’s Republic of China, 4th Edition, Ocean Press, 2012 Edition, pp. 350–365.
- 46.
For details on Chinese government’s submission concerning the outer limits of continental shelf as part of East China Sea , see https://www.un.org/depts/los/clcs_new/commission_documents.htm, visited on December 27, 2014.
- 47.
See https://www.un.org/Deps/los/clcs_new/submission_files/jpn08/chn_6feb09_c.pdf, visited on March 12, 2009.
- 48.
See Chinese Society of International Law, The South China Sea Arbitration Awards: A Critical Study, Foreign Languages Press, 2018 Edition, p. 34.
- 49.
See the Department of Boundary and Ocean Affairs of Ministry of Foreign Affairs of PRC (ed.), Compiled Documents of China Dealing with South China Sea Arbitration, World Affairs Press, 2016 Edition, pp. 86–90.
- 50.
See Relevant Procedures of China’s Participation in the Case of Advisory Opinion on the Responsibilities of the Sponsoring State of the International Tribunal for the Law of the Sea , Selected Cases of China’s Practices in International Law, edited by the Department of Treaty and Law of Ministry of Foreign Affairs of China, World Affairs Press, 2016 Edition, pp. 53–80.
- 51.
See Department of Boundary and Ocean Affairs of Ministry of Foreign Affairs of PRC (editor), A Compilation of the Documents on the Issues Related to China Seas, World Affairs Press, 2017 Edition, pp. 71–73.
- 52.
For details on the aforesaid documents, see Department of Boundary and Ocean Affairs of Ministry of Foreign Affairs of PRC (editor), A Compilation of the Documents on the Issues Related to China Seas, World Affairs Press, 2017 Edition, pp. 69–94.
- 53.
For details on the aforesaid documents, see Department of Boundary and Ocean Affairs of Ministry of Foreign Affairs of PRC (editor), A Compilation of the Documents on the Issues Related to China Seas, World Affairs Press, 2017 Edition, pp. 170–177, pp. 178–193.
- 54.
See Department of Boundary and Ocean Affairs of Ministry of Foreign Affairs of PRC (editor), A Compilation of the Documents on the Issues Related to China Seas, World Affairs Press, 2017 Edition, pp. 487–504.
- 55.
See Department of Boundary and Ocean Affairs of Ministry of Foreign Affairs of PRC (editor), A Compilation of the Documents on the Issues Related to China Seas, World Affairs Press, 2017 Edition, pp. 541–544.
- 56.
See Department of Boundary and Ocean Affairs of Ministry of Foreign Affairs of PRC (editor), A Compilation of the Documents on the Issues Related to China Seas, World Affairs Press, 2017 Edition, pp. 545–546.
- 57.
See Department of Boundary and Ocean Affairs of Ministry of Foreign Affairs of PRC (editor), A Compilation of the Documents on the Issues Related to China Seas, World Affairs Press, 2017 Edition, pp. 548–561.
- 58.
See United States Department of State, Office of Ocean Affairs, Limit in the Seas No. 117: Straight Baseline Claim: China, Washington: United States Department of State, 1996.
- 59.
For details on the actions of freedom of navigation conducted by the USA warships in Xisha and Nansha sea areas, see Yongming (2018b).
- 60.
There are five states (Cambodia, China, Sudan, Syria and Vietnam) in the international community claiming jurisdiction over security matters in the contiguous zone. See Pedrozo (2018).
- 61.
See Bureau of Oceans and International Environmental and Scientific Affairs, United States Department of State, Limits in the Sea, China: Maritime Claims in the South China Sea, December 5, 2014.
- 62.
- 63.
For details on the comprehensive rebuttal against the South China Sea Arbitration Award, see Chinese Society of International Law, The South China Sea Arbitration Awards: A Critical Study, Foreign Languages Press, 2018 Edition, pp. 1–395.
- 64.
The law-making mode herein refers to the method and way of compiling customary international law and developing it into a treaty. For example, Item 1 of Paragraph 1 of Article 13 of the UN Charter states that the General Assembly shall initiate studies and make recommendations for the purpose of promoting international cooperation in the political field and encouraging the progressive development of international law and its codification.
- 65.
See Kanehara (2016).
- 66.
See Okuwaki (2015), Shinzansha, 2015 Edition.
- 67.
For details on Plan on Deepening the Party and the Country's Institutional Reform (21 March 2018) issued by the Central Committee of CPC, see https://www.xinhuanet.com/politics/2018-03/21/c_1122570517.htm. For details on Decision on the Exercising of the Marine Right Safeguarding and Law Enforcement Functions and Powers by the China Coast Guard adopted by the Standing Committee of the 13th National People's Congress on June 22, 2018, see https://www.npc.gov.cn/npc/xinwen/2018-06/22/content_2056585.htm.
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Jin, Y. (2021). The United Nations Convention on the Law of the Sea and China’s Practice. In: Tamada, D., Zou, K. (eds) Implementation of the United Nations Convention on the Law of the Sea. Kobe University Monograph Series in Social Science Research. Springer, Singapore. https://doi.org/10.1007/978-981-33-6954-2_3
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