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Central East Asian Maritime Boundaries and the Law of the Sea

Published online by Cambridge University Press:  27 February 2017

Jonathan I. Charney
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One of the most difficult areas for maritime boundary delimitation is the seas adjacent to Central East Asia. This area, which encompasses the South China Sea, the East China Sea, the Sea of Japan, and the Yellow Sea, is surrounded by the People’s Republic of China, Taiwan (the Republic of China), Japan, North and South Korea, the Philippines, Indonesia, Vietnam, Malaysia, Brunei and Russia. Only a few of the maritime boundaries in the area have been settled, leaving most open to dispute. (See map 1, p. 726.) Efforts to settle the unresolved boundaries have not moved forward. Much has been written about the boundary disputes in this area, and efforts to resolve them have explored means other than delimitation.

Type
Research Article
Information
American Journal of International Law , Volume 89 , Issue 4 , October 1995 , pp. 724 - 749
Copyright
Copyright © American Society of International Law 1995

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References

1 The settled maritime boundaries are reported in INTERNATIONAL MARITIME BOUNDARIES (Jonadian I. Charney & Lewis M. Alexander eds., 1992) [hereinafter MARITIME BOUNDARIES]. At present, there are only four such settlements and they cover only a small portion of the area. For an overview of these setdements, see Choon-ho Park, Central Pacific and East Asian Boundaries, in id. at 297. These maritime boundaries are as follows.

1. Brunei/Malaysia (1958), Rep. No. 5-2, id. at 915. These boundaries were established by the United Kingdom for its colonial possessions and were carried forward upon independence. They are in the South China Sea and are lateral boundaries that make no seaward closure for Brunei in the area of the southern Sprady Islands. The boundaries delimit only the territorial sea and continental shelf and do not extend far into the South China Sea. They are based on equidistance and a perpendicular to the general direction of the coast. See also R. HALLER-TROST, THE BRUNEI-MALAYSIA DISPUTE OVER TERRITORIAL AND MARITIME CLAIMS IN INTERNATIONAL LAW (International Boundaries Research Unit, University of Durham, UK, Maritime Briefing No. 3, 1994).

2. Indonesia-Malaysia (1969), Rep. No. 5-9(1), MARITIME BOUNDARIES, supra, at 1019. This boundary in the southern South China Sea concerns only the continental shelf. It is a set of lateral boundaries delimited according to equidistance; some islands are given full effect and others only partial effect. These lines also extend a limited distance into the South China Sea but do not converge to close off the delimited area.

3. Japan/South Korea (1974), Rep. No. 5-12, id. at 1057. This is a continental shelf boundary through the Korean Strait (Tsushima Strait) north of Tsushima Island (Japan). (See map 1.) It is based on equidistance in an opposite coasdine situation. Large and small islands were used as base points. The delimitation terminates where the disputed island of Dokto begins to influence the equidistant line. This dispute and others between Japan and South Korea have prevented delimitation of the remainder of the boundary. The boundary agreement was negotiated concurrendy with the establishment of the Japan/Korea joint development zone in the East China Sea, which provides for the sharing of costs and revenues from hydrocarbon development in the area. As of this date, creation of the zone has resulted in no production and no profits. The two states originally invited China to participate in the zone as a means of dealing with the maritime boundary dispute, but it declined.

4. North Korea/Russia (territorial sea, exclusive economic zone [EEZ], and continental shelf) (1985, 1986, 1990), Rep. Nos. 5-15(1) and (2), id. at 1135, 1145; Agreement concerning the Regime of the Soviet-Korean State Frontier, Sept. 3, 1990, N. Korea-USSR, UNITED NATIONS, LAW OF THE SEA BULLETIN, Jan. 1993, at 6 [hereinafter LOS BULL.]. By agreements in 1985, 1986 and 1990, these states negotiated most, if not all, of their lateral maritime boundary for the territorial sea, EEZ and continental shelf in the northern Sea of Japan. Both states claim very long straight baselines adjacent to the area. The Russian baseline claim is based on a historic bay claim to Peter the Great Bay, which apparendy is not disputed by the parties. The North Korean baseline claim is a matter of serious controversy since it neither closes a historic bay nor appears to meet the criteria necessary for a system of straight baselines. See infra note 137. The maritime boundary is in the vicinity of the equidistant line drawn from these baselines but may slighdy favor North Korea when it crosses the equidistant line. In part, it may have been established to provide Soviet (now Russian) support for the North Korean baseline.

In the Bering Sea, the maritime boundary for all purposes between the United States and the Russian Federation was also settled by agreement. Agreement on the Maritime Boundary, June 1, 1991, U.S.-USSR, S. TREATY DOC. No. 22, 101st Cong., 2d Sess. (1990), reprinted in 29 ILM 941 (1990), Rep. No. 1-6, MARITIME BOUNDARIES, supra, at 447.

2 For an annotated bibliography, see MARITIME BOUNDARY DELIMITATION 123 (Ted L. McDorman, Kenneth P. Beauchamp & Douglas M.Johnston eds., 1983).

3 See text at notes 151–64 infra. See also, e.g., Mark J. Valencia, The South China Sea: Prospects for Marine Regionalism, MARINE POL’Y, Apr. 1978, at 87; Yu Hui, Joint Development of Mineral Resources—An Asian Solution? (unpublished manuscript by a former legal officer, State Oceanic Administration of China) (on file with author).

4 United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, UN Doc. A/CONF.62/ 122 (1982), reprinted in UNITED NATIONS, OFFICIAL TEXT OF THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA WITH ANNEXES AND INDEX, UN Sales No. E.83.V.5 (1983), 21 ILM 1261 (1982) [hereinafter LOS Convention]; Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, GA Res. 48/263, annex (July 28, 1994), 33 ILM 1309 (1994). For a list of the 67 ratifications, accessions and successions to the LOS Convention as of November 16, 1994, see Status of the Convention and of the Agreement Relating to the Implementation of Part XI ofthe United Nations Convention on the Law of the Sea of 10 December 1982, as of Nov. 16, 1994, LOS BULL., Special Issue No. IV, Nov. 1994, at 29 [hereinafter Status of Convention]. By the end of 1994, there were 71 parties. U.S. DEP’T OF STATE, LIMITS IN THE SEAS, NATIONAL CLAIMS TO MARITIME JURISDICTION, No. 36, Jan. 11, 1995, at 171 [hereinafter LIMITS IN THE SEAS, NATIONAL CLAIMS]. As of August 14, 1995, there were 81 parties. Law of the Sea: Status of UNCLOS and the Agreement, UNCLOS Ratifications, Successions, Accessions, search of Internet, GOPHER.UN.ORG (Aug. 14, 1995).

5 See text at notes 146–50 infra.

6 See Jonathan I. Charney, Progress in International Maritime Boundary Delimitation Law, 88 AJIL 227 (1994); MARITIME BOUNDARIES, supra note 1.

7 LOS Convention, supra note 4, Arts. 74, 83. The article on the maritime boundary of the territorial sea is somewhat different, including the equidistance-special circumstances language, although it may not constitute a normative difference:

Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. The above provision does not apply, however, where it is necessary by reason of historic tide or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith.

Id., Art. 15. See Charney, supra note 6, at 244.

8 See Charney, supra note 6, at 227; and Jonathan I. Charney, Introduction to MARITIME BOUNDARIES, supra note 1, at xxiii, xxviii–xxix.

9 See LOS Convention, supra note 4, Arts. 46–54 (archipelagic states), 121 (islands) and 279–99 (dispute settlement).

10 The Philippines ratified the LOS Convention on May 8, 1984. Status of Convention, supra note 4, at 36. Indonesia ratified on February 3, 1986. Id. at 33. Vietnam ratified on July 25, 1994. Id. at 39.

11 Brunei, China, Indonesia, Malaysia, Japan, South Korea, Vietnam and Russia have signed the LOS Convention. List of signatures, ratifications, accessions and successions, LOS BULL., June 1994, at 1. Today Taiwan (the Republic of China) is not considered to be a state and does not appear to be eligible to be a party to the Convention. LOS Convention, supra note 4, Arts. 305–07. On July 28, 1994, when the UN General Assembly called on states to ratify the Convention, all of these states, with the exception of Russia, voted in favor. The resolution was proposed by Fiji and a long list of cosponsors. The vote was 121 states in favor, 0 opposed, with 7 abstentions (Colombia, Nicaragua, Panama, Peru, Russia, Thailand and Venezuela). GA Res. 48/263, supra note 4. Russia subsequently modified its position. See Moritaka Hayashi, Implementing the United Nations Convention on the Law of the Sea, 7 GEO. INTL L. REV. (forthcoming 1995).

12 Jonathan I. Charney, Universal International Law, 87 AJIL 529 (1993).

13 LOS Convention, supra note 4, Arts. 286–87, but states may choose to opt out of this procedure. Id., Art. 298, para. 1(a)(i).

14 See Indonesia-Malaysia maritime boundary, supra note 1; JEANETTE GREENFIELD, CHINA’S PRACTICE IN THE LAW OF THE SEA 151 (1992).

15 See ATLAS FOR MARINE POLICY IN SOUTHEAST ASIAN SEAS 42 (Joseph Morgan & Mark J. Valencia eds., 1983) [hereinafter ATLAS] . See also]. R. V. PRESCOTT, MARITIME JURISDICTION IN SOUTHEAST ASIA: A COMMENTARY AND MAP 32–33, 41 (East-West Environment and Policy Institute Research Report No. 2, 1981); Andrew Pollack, U.S. Companies Sign Big Indonesian Gas Deal, N.Y. TIMES, Nov. 17, 1994, at C4; Ismail Kassim, Islands Claimed by KL “not part of Spratlys,” STRAITS TIMES (Singapore), Oct. 27, 1994, at 8.

16 See GREENFIELD, supra note 14, at 150; Failure to resolve marine boundary disputes raises tensions in SE Asia, MARINE POL’Y, Nov. 1992, at 488; Steven Kuan-tsyh Yu, Who Owns the Paracels and the Spratlys? An Evaluation of the Nature and Legal Basis of the Conflicting Territorial Claims, in FISHING IN TROUBLED WATERS 48 (R. D. Hill, Norman G. Owen & E. V. Roberts eds., 1991); HANNS J. BUCHHOLZ, LAW OF THE SEA ZONES IN THE PACIFIC OCEAN 42—49 (1989); Choon-ho Park, The South China Sea Disputes: Who Owns the Islands and the Natural Resources?, 5 OCEAN DEV. & INT’L L. 27, 30 (1978); Valencia, supra note 3; Tao Cheng, The Dispute over the South China Islands, 10 TEX. INTL L.J. 265 (1975); Hungdah Chiu & Choon-ho Park, Legal Status of the Paracel and Spratly Islands, 3 OCEAN DEV. & INTL L. 1 (1975).

17 For a brief history of the origin of the dispute, see Tsuneo Akaha, From Conflict to Cooperation: Fishery Relations in the Sea offapan, 1 PAC. RIM L. & POLY J. 225, 228–29 (1992). For maps, see J. R. V. PRESCOTT, MARITIME JURISDICTION IN EAST ASIAN SEAS 59, 62 (East-West Environment and Policy Institute Occasional Paper No. 4, 1987).

18 See Pyong-choo Hahm, A Korean Perspective on the Law of the Sea: A Private View, 8 L. SEA INST. WORKSHOP 138 (1987). These rocks are located in the Sea of Japan west of South Korea and north of the southern portion of the main Japanese island of Honshu.

19 Comment, The East China Sea: The Role of International Law in the Settlement of Disputes, 1973 DUKE L.J. 823, 847 n.79; Victor H. Li, China and Off-Shore Oil: The Tiaoyö Tai Dispute, 10 STAN. J. INTL STUD. 143 (1975).

20 Island of Palmas case (U.S. v. Neth.), 2 R.I.A.A. 829 (Perm. Ct. Arb. 1928); Legal Status of Eastern Greenland (Den. v. Nor.), 1933 PCIJ (ser. A/B) No. 53 (Apr. 5).

21 See Tao Cheng, The Sino-Japanese Dispute over the Tiao-yu-tai (Senkaku) Islands and the Law of Territorial Acquisition, 14 VA. J. INTL L. 221 (1974); and Georg Schwarzenberger, Title to Territory: Response to a Challenge, 51AJIL 308, 315–16 (1957), for a discussion of the relative standard. See ROBERT Y.JENNINGS, THE ACQUISITION OF TERRITORY IN INTERNATIONAL LAW 4–6, 22–23 (1963), for comment on the need for an absolute standard. For general discussion on niodes of acquisition of territory, see 1 OPPENHEIMS INTERNATIONAL LAW 677–715 (Robert Y.Jennings & Arthur Watts eds., 1992).

22 UN CHARTER Art. 2(4); for comment on the interpretation of this provision, see Oscar Schachter, International Law in Theory and Practice, 178 RECUEIL DES COURS 13, 133–43 (1982 V). For general discussion on the use of force, see IAN BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY STATES 410–23 (1963). See David Holley, Dispute over Islands Exposes Tensions Between China, Vietnam, L.A. TIMES, July 4, 1992, at A9.

23 UN CHARTER Art. 51. Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), 1986 ICJ REP. 14 (June 27) (the right of self-defense exists when a state is the “victim of an armed attack”). For discussion of an expansive concept of self-defense, see Schachter, supra note 22, at 150–60.

24 Islands of Discord, Manila and Beijing Square off in Spat over the Spratlys, ASIA WK., The Nation, Feb. 24, 1995, at 26 [hereinafter Islands of Discord]; Philip Shenon, Manila Sees Threat from China over a Reef in South China Sea, N.Y. TIMES, Feb. 19, 1995, §1, at 8; War not an option in dispute with China says Manila, Japan Economic Newswire (Kyodo News Service), Feb. 13, 1995, available in LEXIS, World Library, Curnws File; Patrick E. Tyler, China Revamps Forces with Eye to Sea Claims, N.Y. TIMES, Jan. 2, 1995, at 2; Philip Shenon, China Sends 2 Warships to Vietnamese Oil Site, N.Y. TIMES, July 21, 1994, at A7; Barry Wain, Beijing and Hanoi Play with Fire in South China Sea, ASIAN WALL ST. J., July 20, 1994, at Al; Zhiguo Gao, The South China Sea: From Conflict to Cooperation?, 25 OCEAN DEV. & INTL L. 345, 346–49 (1994); Seamus McElroy & Landell Mills, Failure to resolve maritime boundary disputes raises tensions in SE Asia, MARINE POLY, Nov. 1992, at 488. See supra note 22.

25 Gao, supra note 24, at 346; Peter Kien-hong Yu, Issues on the South China Sea: A Case Study, 11 CHINESE Y.B. INTL’L. & AFF. 138 (1991–92); Steven Yu, supra note 16; R. HALLER-TROST, THE SPRATLY ISIANDS (Centre of South-East Asian Studies Occasional Paper No. 14, University of Kent at Canterbury, 1990); BUCHHOLZ, supra note 16, at 36; PRESCOTT, supra note 15, at 13–45; Valencia, supra note 3, at 92; Cheng, Supra note 16, at 270–72.

26 See Island of Palmas case, supra note 20; The Anna, 165 Eng. Rep. 809 (1805), 5 C. Robinson 373, 1 Eng. Pr. Cas. 499.

27 The Philippine Government, shortly after gaining independence from the United States in 1946, made its first claim over the Spratly Islands in 1947. In 1991 the Philippines again asserted this claim by making a formal request for the removal of a Chinese garrison from the island of Itu Aba. Discovery and sovereignty over the archipelagic baselines encompassing the Spratly group were the legal bases for the claim. See Cheng, supra note 16, at 270–71.

28 Convention on the Territorial Sea and the Contiguous Zone, Apr. 29, 1958, 15 UST 1606, 516 UNTS 205.

29 LOS Convention, supra note 4, Art. 121, para. 1.

30 Id., Art. 121, para. 2.

31 The claim of North Korea is based on its assertion of a “50-mile military boundary zone” that encompasses these offshore islands. CHOON-HO PARK, The 50-Mile Military Boundary Zone of North Korea, in EAST ASIA AND THE LAW OF THE SEA 163, 165, 173 n.9 (1983).

32 Id.; Armistice Agreement, July 27, 1953, N. Korea-UN, 29 DEP’T ST. BULL. 132 (1953); Jung-Gun Kim, Reflections on the Attitude of North Korea Towards the Law of the Sea Treaty (UNCLOS III), in THE LAW OF THE SEA: PROBLEMS FROM THE EAST ASIAN PERSPECTIVE 212, 219–22 (Choon-ho Park & Jae Kyu Park eds., 1987) [hereinafter EAST ASIAN PERSPECTIVE] ; NK Zone Won’t Affect Operations of UNC, S. KOREA TIMES (Hankook Ilbo), Aug. 3, 1977, at 1.

33 Case concerning the Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland, and the French Republic, 18 R.I.A.A. 3, paras. 178–203 (1977 & 1978), 18 ILM 397 (1979) [hereinafter Anglo-French Award]; Delimitation of the Maritime Areas between Canada and France (St. Pierre & Miquelon) (1992), 31 ILM 1149, paras. 67–69 (1992) [hereinafter St. Pierre & Miquelon].

34 See Derek W. Bowett, Islands, Rocks, Reefs, and Low-tide Elevations, in MARITIME BOUNDARIES, supra note 1, at 131, 131–46.

35 See Charney, supra note 6, at 229–30; St. Pierre & Miquelon, 31 ILM 1149; Maritime Delimitation in the Area between Greenland and Jan Mayen (Den. v. Nor.), 1993 ICJ REP. 38 (June 14) [hereinafter Jan Mayen]. The practice of states in their maritime boundary agreements is somewhat more diverse. See Bowett, supra note 34, at 144–47.

36 Jan Mayen, 1993 ICJ REP. 38. See Charney, supra note 6, at 248–49.

37 For a map, see ATLAS, supra note 15, at 111.

38 LOS Convention, supra note 4, Art. 47.

39 Id. An archipelagic state may draw straight baselines joining the outermost points of the outermost islands and drying reefs of the archipelago, provided that included within these baselines are the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1:1 and 9:1 (id., para. 1). Limits are also placed on the length of the archipelagic baselines and their relationship to the archipelago.

40 LOS Convention, supra note 4, Art. 7.

41 The Philippine Islands consist of over 7,100 islands and islets spanning 1,850 km. from north to south and 1,125 km. from east to west at their maximum extension. 9 NEW ENCYCLOPEDIA BRITANNICA 382 (Philip W. Goetz ed., 1990). The Philippines has established archipelagic baselines around the archipelago. UNITED NATIONS, THE LAW OF THE SEA: BASELINES: NATIONAL LEGISLATION WITH ILLUSTRATE MAPS 250, UN Sales No. E.89.V.10 (1989) [hereinafter BASELINES]. Australia, Bulgaria, Czechoslovakia, Ukraine, the USSR and the United States protested aspects of this claim. U.S. DEP’T OF STATE, LIMITS IN THE SEAS, UNITED STATES RESPONSES TO EXCESSIVE NATIONAL MaRITIME CLAIMS, No. 112, Mar. 9, 1992, at 45–47 [hereinafter LIMITS IN THE SEAS, U.S. RESPONSES].

42 The LOS Convention, supra note 4, Art. 47, para. 2, permits a maximum archipelagic baseline of 125 nautical miles. The Spratly Islands are west of the Philippines.

43 The Indonesian archipelagic baselines are illustrated in LINES IN THE SEA 102–03 (Giampiero Francalanci & Tullio Scovazzi eds., 1994). See also BASELINES, supra note 41, at 187–93, 267–70, 384–87.

44 Japan does not satisfy Article 47, paragraph 1 of the LOS Convention with regard to the ratio of the area of the water to the area of the land. See note 39 supra.

45 These archipelagoes are “Danjo Gunto, Sakushima Shoto (archipelago), and the combined archipelagos called Okinawa Shoto and Anami Shoto.” PRESCOTT, supra note 17, at 26; ATLAS FOR MARINE POLICY IN EAST ASIAN SEAS 27 (Joseph Morgan & Mark J. Valencia eds., 1992).

46 BASELINES, supra note 41, at 207–09; J. R. V. PRESCOTT, THE MARITIME POLITICAL BOUNDARIES OF THE WORLD 239 (1985).

47 LOS Convention, supra note 4, Arts. 5, 6, 9–14.

48 Id., Art. 16. China publicly asserted its adoption of the straight baseline system in 1958. See 1958 Chinese Declaration on Territorial Waters, reprinted in part in GREENFIELD, supra note 14, at 64. China’s declaration, however, did not comply with the notification and publication requirements of Article 16 of the LOS Convention, or of Article 7 of the 1958 Convention on the Territorial Sea and the Contiguous Zone, supra note 28, which reflect general international law. The recent 1992 Law on the Territorial Sea brings China into greater conformity with the LOS Convention and provides for enabling legislation for a system of straight baselines yet to be delimited. See Liyu Want & Peter H. Pearse, The New Legal Regime for China’s Territorial Sea, 25 OCEAN DEV. & INT’L L. 431 (1994). The United States has protested only the aspects of the 1992 law relating to the requirement that foreign warships obtain prior permission to transit the territorial sea. LIMITS IN THE SEAS, NATIONAL CLAIMS, supra note 4, at 27.

49 LOS Convention, supra note 4, Art. 121, para. 3. The French text is: “Les rochers que ne prêtent pas à l’habitation humaine ou à une vie économique propre n’ont pas de zone économique exclusive ni de plateau continental.” The Spanish text is: “Las rocas no aptas para mantener habitatión humana o vida económica propia no tendrán zona económica exclusive ni platforma continental.”

50 The Paracel Islands consist of approximately 20 islands and numerous cays, reefs and banks. The islands produce guano, have some vegetation and are chiefly uninhabited. Chiu & Park, supra note 16, at 6–8.

The Sprady Island group consists of over five hundred separate features, many of which are submerged. They extend over 315 nautical miles from north to south and 240 nautical miles from east to west. Virtually all, if not all, of the islands are too small to sustain permanent habitation. Michael Bennett, The People’s Republic of China and the Use of International Law in the Spratly Islands Dispute, 28 STAN. J. INT’L L. 425, 429–30 (1992); PRESCOTT, supra note 15, at 29–39; Peter Yu, supra note 25, at 142–44.

The Senkaku Islands consist of eight small coral islands and three rocks that do not sustain vegetation or other life. Comment, supra note 19; Li, supra note 19, at 143.

Danjo Gunto consists of several small islets with a total area of less than 4 square miles. These islands are also uninhabited except for the caretakers of a lighthouse and a radio signal station. Donald R. Allen & Patrick H. Mitchell, The Legal Status of the Continental Shelf of the East China Sea, 51 OR. L. REV. 789, 803–04 (1972); Choon-ho Park, Oil Under Troubled Waters: The Northeast Asia Sea-Bed Controversy, in PARK, supra note 31, at 1, 24–27.

The Ryukyu Islands form an arc extending northeast to southwest of approximately 630 nautical miles. The total area of the islands is 1,338 square nautical miles and the population numbers approximately one million. Allen & Mitchell, supra, at 804–06; PARK, supra, at 31–39.

51 LOS Convention, supra note 4, Art. 121, para. 3.

52 See Bowett, supra note 34, at 136–37. See also, e.g., St. Pierre & Miquelon, 31 ILM 1149; Jan Mayen, 1993 ICJ REP. 38. For a detailed examination of these cases, see Charney, supra note 6.

53 For the view that a coral island is not a “rock” under Article 121, paragraph 3, see HALLER-TROST, supra note 1, at 45–47.

54 The negotiations at the Third United Nations Conference on the Law of the Sea (UNCLOS III) regarding this provision are collected in UNITED NATIONS, THE LAW OF THE SEA: REGIME OF ISLANDS 22–113, UN Sales No. E.87.V.H (1988) [hereinafter REGIME OF ISLANDS]. This record shows little agreement on the meaning of Article 121, paragraph 3, and little discussion of the issues likely to arise under it. Some delegations argued against the provision on the basis of its ambiguity. Id. at 97, 108.

55 See id. at 33, 66, 77,97, 111.

56 Perhaps the strongest argument of the proponents of the article was that it would be inequitable for such rocks to generate large maritime zones that would diminish the area of the deep seabed. Id. at 27, 52, 55, 61, 66, 74, 107.

57 Such extensions would not convert the feature into an artificial island. LOS Convention, supra note 4, Art. 60. The negotiators at UNCLOS III considered including a provision on islets as separate from rocks. The deletion of an islets article suggests that, geologically, the feature ought to be a rock in nature. REGIME OF ISLANDS, supra note 54, at 40–41, 48, 55, 61, 73, 75, 76, 89, 107, 113.

58 Bowett, supra note 34, at 146–51.

59 LOS Convention, supra note 4, Art. 121, para. 2.

60 Id., Arts. 7, 47.

61 Id., Art. 7, para. 3.

62 Id., Art. 47, paras. 1, 2, 3.

63 Id., Art. 121, para. 3; REGIME OF ISLANDS, supra note 54, at 52, 55, 66, 74, 77, 103.

64 LOS Convention, supra note 4, Art. 7, para. 4.

65 Id., Art. 7, para. 2.

66 Id., Art. 47, para. 4.

67 Id.

68 LOS Convention, supra note 4, Art. 13.

69 Id., Arts. 7, para. 4, 47, para. 4. See text at notes 61–65 supra.

70 See supra note 27; and Cheng, supra note 16.

71 LOS Convention, supra note 4, Art. 6.

72 GREENFIELD, supra note 14, at 165–66; PRESCOTT, supra note 15, at 38; SELIG HARRISON, CHINA, OIL AND ASIA 191 (1977); Chiu & Park, supra note 16, at 5.

73 PRESCOTT, supra note 15, at 38. See also 1 OPPENHEIMS INTERNATIONAL LAW, supra note 21, at 696-98; HIRAM W. JAYEWARDENE, THE REGIME OF ISLANDS IN INTERNATIONAL LAW 1 (1990); 1 D. P. O’CONNELL, INTERNATIONAL LAW 429, 480–81 (1970); Acquisition and Loss, 2 Whiteman, DIGEST 1084.

74 LOS Convention, supra note 4, Art. 10, para. 6.

75 Bennett, supra note 50, at 434–35; Martin H. Katchen, The Spratly Islands and the Law of the Sea: “Dangerous Ground” for Asian Peace, 17 ASIAN SURV. 1167 (1977); HARRISON, supra note 72, at 199–200; Chiu & Park, supra note 16, at 6–16. See also BUCHHOLZ, supra note 16, at 43.

76 See Jonathan I. Charney, Maritime Jurisdiction and the Secession of States: The Case of Quebec, 25 VAND. J. TRANSNATL L. 343, 402–04 (1992).

77 See Juridical Régime of Historic Waters, including Historic Bays, [1962] 2 Y.B. Int’l L. Comm’n 1, UN Doc. A/CN.4/SER.A/1962/Add.l, and other references in Charney, supra note 76, at 397 n.78. See generally LIMITS IN THE SEAS, U.S. RESPONSES, supra note 41, at 4–16.

78 The South China Sea contains three major shipping routes. Hungdah Chiu, South China Sea Islands: Implications for Delimiting the Seabed and Future Shipping Routes, 72 CHINA Q. 743, 744 (1977). The area is also an important site for many states’ fisheries activities. Valencia, supra note 3, at 89–90; BUCHHOLZ, supra note 16, at 5–6. Recently, China made clear that it does not claim the right to regulate international navigation in the South China Sea. Patrick E. Tyler, China Pledges Safe Passage for allFmeign Ships Around Contested Islands, N.Y. TIMES, May 19, 1995, at A5. See also Michael Richardson, American Commander Aims to Calm China, INT’L HERALD TRIB., July 15, 1995.

79 On the claims by Great Britain and the pope, see HUGO GROTIUS AND INTERNATIONAL RELATIONS 211 (Hedley Bull, Benedict Kingsbury & Adam Roberts eds., 1990) [hereinafter Bull, Kingsbury & Roberts]. Compare Selden’s thesis that nations could dominate and exercise sovereignty over the seas with Grotius’s thesis that the sea could not be appropriated and belonged to all nations. On the legality of these arguments, see Tommy Koh, The Origins of the 1982 Convention on the Law of the Sea, 29 MAIAYA L. REV. 1, 1–3 (1987).

80 See HUGO GROTIUS, THE FREEDOM OF THE SEAS (Mare Liberum) (Ralph Van Deman Magoffin ed. & trans., 1916) (1605). Under modern law the high seas are res communis and historic claims are limited to historic bays. Bull, Kingsbury & Roberts, supra note 79, at 216–20. Convention on the High Seas, Apr. 29, 1958, Art. 2, 13 UST 2314, 450 UNTS 82; Convention on the Territorial Sea and the Contiguous Zone, supra note 28, Art. 7, para. 6; LOS Convention, supra note 4, Arts. 3, 10, para. 6, 87.

81 Convention on the Territorial Sea and the Contiguous Zone, supra note 28, Art. 7, para. 6.

82 See Juridical Régime of Historic Waters, including Historic Bays, supra note 77.

83 LOS Convention, supra note 4, Arts. 10, 57, 76. While most historic bay claims historically pertained to very large bays, the strict geographical requirements for a juridical bay, e.g., the semicircle test, id., Art. 10, para. 2, make such claims attractive for some smaller baylike features. See Australia’s claims to Anxious, Encounter, Lacepede and Rivoli Bays. Proclamation, COMMONWEALTH OF AUSTRALIA, GAZETTE NO. S57, Mar. 31, 1987, at 2–4. The United States has protested these claims: LIMITS IN THE SEAS, U.S. RESPONSES, supra note 41, at 6. Vietnam has claimed the Gulf of Tonkin as a historic bay and Russia has claimed Peter the Great Bay as one. The United States opposes those claims. Id. at 14–17.

84 LOS Convention, supra note 4, Art. 56.

85 See Charney, supra note 76, at 366–71, 386–97, 403–17, 419–24.

86 Continental Shelf (Tunis./Libya), 1982 ICJ REP. 18, 86–89, paras. 122–29 (Feb. 24) [hereinafter Tunisia/Libya].

87 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/U.S.), 1984 ICJ REP. 246, 335–37, paras. 221–22 (Oct. 12) [hereinafter Gulf of Maine].

88 See text at note 7 supra.

89 North Sea Continental Shelf Cases (FRG v. Den.; FRG v. Neth.), 1969 ICJ REP. 3, 50–54, paras. 93–95, 97, 101 (Feb. 29) [hereinafter North Sea]. Presidential Proclamation No. 2667 (Truman Proclamation), Policy of the United States with Respect to the Natural Resources of the Subsoil and Seabed of the Continental Shelf, Sept. 28, 1945, 10 Fed. Reg. 12,303 (1945). See also The East China Sea, supranote 19. See generally Richard T. S. Hsu, A Rational Approach to Maritime Boundary Delimitation in the Yellow Sea, in THE REGIME OF THE YELLOW SEA 137–42 (Choon-ho Park ed., 1990); Park, supra note 50, at 19–21; Leonard B. Terr, “The Distance Plus Joint Development Zone” Formula: A Proposal for the Speedy and Practical Resolution of the East China and Yellow Seas Continental Shelf Oil Controversy, 7 CORNELL INT’L L.J. 49, 56–57 (1973).

90 See Charney, supra note 6, at 230–40; Keith Highet, The Use of Geophysical Factors in the Delimitation of Maritime Boundaries, in MARITIME BOUNDARIES, supra note 1, at 163, 171–77. See also Anglo-French Award, 18 ILM at 428, para. 107; Tunisia/Libya, 1982 ICJ REP. at 48–58, paras. 48–68; Mark B. Feldman, The Tunisia-Libya Continental Shelf Case: Geographic Justice or Judicial Compromise?, 77 AJIL 219 (1983).

91 Anglo-French Award, supra note 33 (distinct features in geomorphology of the continental shelf were not considered in the delimitation of the continental shelf boundary); Tunisia/Libya, 1982 ICJ REP. at 49–58, paras. 51-68 (geomorphological evidence discarded); Continental Shelf (Libya/Malta), 1985 ICJ REP. 13, 33–34, 39, 46, 55–57, paras. 33–35, 39, 61, 77, 79 (June 3) (geological and geomorphological characteristics are immaterial in boundary delimitations within 200 nautical miles of the coastline) [hereinafter Libya/Malta].

92 Gulf of Maine, 1984 ICJ REP. at 273, 342, paras. 44, 237 (geophysical component of the case was disregarded); Jan Mayen, 1993 ICJ REP. at 73–74, para. 80 (delimitation based on coastal geography only).

93 Charney, supra note 8, at xl-xlii; Highet, supra note 90, at 176–77. See also Libya/Malta, 1985 ICJ REP. at 48–56, paras. 65–77.

94 Rep. No. 6-2(5), in MARITIME BOUNDARIES, supra note 1, at 1245, 1246–47; see Highet, supra note 90, at 186–88; East Timor (Port. v. Ausd.), 1995 ICJ REP., paras. 18, 25, 27, 28 (June 30).

95 There is arguably a limited space for a continental shelf in a narrow north-south corridor beyond the 200-nautical-mile zone in the South China Sea west of Scarborough Reef between the Pratas Islands and the northern Philippines. (See map 1.) This could include an area of approximately 5,300 square nautical miles. J. R. V. Prescott, Sharpening the Geographical and Legal Focus on the Potential Regional Conflict in the Spratly Islands, in MARITIME PROBLEMS INVOLVING ISLANDS (Richard Schofield ed., forthcoming). This conclusion depends on the elevation of features on Scarborough Reef. If there are islands, which is most likely, such an enclave would not exist.

96 1993 ICJ REP. at 56–59, 61–62, 69–70, 79, paras. 41–48, 52–53, 71, 90; Charney, supra note 6, at 246–47.

97 LOS Convention, supra note 4, Arts. 74, 83.

98 Id., Art. 76, para. 10.

99 Id., Arts. 57, 76. See Libya/Malta, 1985 ICJ REP. at 33–34, 39, 46, 55–57, paras. 33–35, 39, 61, 77, 79. See also Charney, supra note 6, at 236.

100 On Japanese and Chinese claims to the Senkaku Islands, see Li, supra note 19, at 147–56; Cheng, supra note 21, at 244–63; Park, supra note 50, at 31–39. On claims to the Ryukyu Islands, see id. at 9–10, On claims to Goto Retto, see Allen & Mitchell, supra note 50, at 802–07.

101 On claims to Danjo Gunto and Tori Shima, see Allen & Mitchell, supra note 50, at 795, 802–07; Park, supra note 50, at 10–11, 24–27.

102 See Charney, supra note 6, at 241–43; St. Pierre & Miquelon, 31 ILM 1149; Jan Mayen, 1993 ICJ REP. 38.

103 Charney, supra note 6, at 237–49; St. Pierre & Miquelon, 31 ILM at 1169–71, paras. 66–74; Jan Mayen, 1993 ICJ REP. at 79–80, para. 92.

104 See Highet, supra note 90, at 179–83.

105 GREENFIELD, supra note 14, at 126–27.

106 Id. at 95–101.

107 North Sea, 1969 ICJ REP. at 50–51, paras. 94–95. See Highet, supra note 90, at 195; CHOUNG IL CHEE, KOREA AND INTERNATIONAL LAW 14–18 (1993).

108 See Choon-ho Park, China and Maritime Jurisdiction, in PARK, supra note 31, at 245, 255–64.

109 Bowett, supra note 34, at 131.

110 States at UNCLOS HI took the view that very small islands far from the mainland ought not to affect the maritime boundary delimitation significantly. REGIME OF ISLANDS, supra note 54, at 24, 30, 50, 77, 98–99, 111.

111 See text at notes 49–71 supra.

112 North Sea, 1969 ICJ REP. at 49, para. 89.

113 See the illustrative map entitled Regional Overview, North and West Europe, Region Number 9, in MARITIME BOUNDARIES, supra note 1, at 343; Rep. Nos. 9-8, 9-11, id. at 1801, 1834.

114 Maritime Boundary (Guinea/Guinea-Bissau) (1985), 25 ILM 252, 294–95, paras. 102–04 (1986), 77 ILR 636, 680–82 (1988).

115 1985 ICJ REP. at 50, para. 69.

116 18 ILM at 422, 424, 426, paras. 161–79, 186, 188, 197–202.

117 SEE Charney, supra note 6, at 249–51.

118 Id. at 247–54.

119 See supra note 113.

120 18 ILM at 442, 444, 445, paras. 188, 197, 198, 202.

121 St. Pierre & Miquelon, 31 ILM at 1169–71, paras. 66–74. See Charney, supra note 6, at 230, 231, 247.

122 Land, Island and Maritime Frontier Dispute (El Sal./Hond.: Nicar. intervening), 1992 ICJ REP. 351, 606–09, paras. 415–20 (Sept. 11). See Charney, supra note 6, at 229, 230, 247.

123 Jan Mayen, 1993 ICJ REP. at 79–81, paras. 91–92. See Charney, supra note 6, at 230, 232, 248–49.

124 See Charney, supra note 6, at 247–49.

125 MARITIME BOUNDARIES, supra note 1, at 269–367.

126 Id. at 283.

127 Id. at 319.

128 Id. at 329.

129 Id. at 343.

130 Id. at 367.

131 Id. at 295.

132 Id. at 291.

133 See Chile-Peru, Rep. No. 3–5, id. at 792; Colombia-Ecuador, Rep. No. 3–7, id. at 808; Ecuador-Peru, Rep. No. 3-9, id. at 828; The Gambia-Senegal, Rep. No. 4-2, id. at 848; Kenya-Tanzania, Rep. No. 4-5, id. at 875; Mauritania-Morocco, Rep. No. 4-6, id. at 885; Mozambique-Tanzania, Rep. No. 4-7, id. at 893.

134 Regional Overview Map, Middle America and the Caribbean, Region Number 2, in id. at 282; Colombia-Panama, Rep. No. 2-5, id. at 518; Costa Rica-Panama, Rep. No. 2-6, id. at 537.

135 Regional Overview Map, Indian Ocean/S.E. Asia, Region Number 6, in id. at 313; Burma (Myanmar)-India, Rep. No. 6-3, id. at 1329; Burma (Myanmarj-Thailand, Rep. No. 6-4, id. at 1341; India-Indonesia-Thailand, Rep. No. 6–7, id. at 1379; Indonesia-Malaysia-Thailand, Rep. No. 6-12, id. at 1443.

136 LOS Convention, supra note 4, Arts. 3, 5, 7, 9, 10, 33, 47, 56, 57, 76.

137 This claim runs for over 300 nautical miles from Kosong to Najuir, enclosing a shallow indentation of the North Korean coasdine. Choon-ho Park, North Korea-Soviet Union, Rep. No. 5-15(1), in MARITIME BOUNDARIES, supra note 1, at 1133, 1137; Park, supra note 31, at 163–74; Tsueno Akaha, From Conflict to Cooperation, 1 PAC. RIM L. & POL’Y J. 225 (1992); Jin-Hyun Paik, Some Legal Issues Relating to Maritime Jurisdictions of North Korea, in INTERNATIONAL IMPLICATIONS OF EXTENDED MARITIME JURISDICTION IN THE PACIFIC 94 (John P. Craven, Jan Schneider, & Carol Stimson eds., 1989) [hereinafter EXTENDED MARITIME JURISDICTION].

138 GREENFIELD, supra note 14, at 94–98; CHOON-HO PARK, FISHERIES ISSUES IN THE YELLOW SEA AND THE EAST CHINA SEA 14 (Law of the Sea Institute, University of Rhode Island, Occasional Paper No. 18, 1973).

139 GREENFIELD, supra note 14, at 74–76; PEOPLES CHINA AND INTERNATIONAL LAW 535–40 (comp. Jerome Cohen & Hungdah Chiu, 1974); CHI YOUNG PAK, THE KOREAN STRAITS 89–93 (1988). LOS Convention, supra note 4, Arts. 17–45. For analyses of these provisions and the LOS Convention, see PAK, supra, at 83–91; John R. Stevenson & Bernard H. Oxman, The Future of the United Nations Convention on the Law of the Sea, 88 AJIL 488, 493–94 (1994).

140 Japan maintains that transportation of nuclear weapons through its territorial sea is not “innocent.” See Shunji Yanai & Kuniaki Asomura, Japan and the Emerging Order of the Sea—Two Maritime Laws of Japan, 21 JAPAN. ANN. INT’L L. 48, 62 (1977); Tsuneo Akaha, Internalizing International Law: Japan and the Regime of Navigation under the UN Convention on the Law of the Sea, 20 OCEAN DEV. & INT’L L. 113 (1989); PAK, supra note 139, at 89; Chiyuki Misukami, The Relation Between International Treaties and National Regulation in East Asia and International Cooperation in Marine Pollution: Japan, in EXTENDED MARITIME JURISDICTION, supra note 137, at 90. The better view is that such passage may be innocent as well as within the regime of transit passage. John Norton Moore, The Regime of Straits and the Third United Nations Conference on the Law of the Sea, 74 AJIL 77 (1980). The legality of nuclear weapons is the subject of requests for advisory opinions submitted to the ICJ from the UN General Assembly and the World Health Organization. Legality of the Threat or Use of Nuclear Weapons, 1995 ICJ REP. 3 (Feb. 1); Request for an advisory opinion from the International Court of Justice on the legality of the threat or use of nuclear weapons, GA Res. 49/75K (Dec. 15, 1994); Legality of the Use by a State of Nuclear Weapons in Armed Conflict, 1994 ICJ REP. 109 (June 20); Legality of the Use by a State of Nuclear Weapons in Armed Conflict, 1993 ICJ REP. 467 (Sept. 13).

141 See supra note 1.

142 LOS Convention, supra note 4, Arts. 279–87.

143 Id., Art. 296.

144 Id., Art. 298, para. 1(a)(i).

145 Id.

146 Barry Buzan & Gerald Segal, Rethinking Asian Security, 23 SURVIVAL 3 (1994).

147 Seoul announces measures to boost inter-Korean cooperation, BBC Summary of World Broadcasts, Nov. 25, 1994, available in LEXIS, World Library, Curnws File [hereinafter BBC Summary]; Nancy Giges & Yoo-lim Lee, North Korea Holds New Promise for Marketers, ADVERTISING AGE, Nov. 14, 1994, at 6; Paul Blumstein, North Korea Angrily spurns South’s Proposal to Broaden Economic Relations, WASH. POST, NOV. 11, 1994, at A33; John Burton, South Korea Eyes the North’s Attractions: Economic Benefits of Seoul’s Easing of Business Links with Pyongyang, FIN. TIMES (London), Nov. 9, 1994, at 6, available in LEXIS, World Library, Curnws File; South Korea Lifts Trade Ban on Communist North Korea, CHRISTIAN SCI. MONITOR, NOV. 8, 1994, at 7; T. R. Reid, Seoul Hopes that Carter will Arrange First Summit of Korean Leaders, WASH. POST, Sept. 23, 1994, at A32; Peter Goodspeed, Seoul Keeps Its Guard up for Talks with North Korea, TORONTO STAR, June 28, 1994, at A3; North Korea Agrees to Get Rice from South, N.Y. TIMES, June 22, 1995, at A7.

148 James Sterngold, For Taiwan, Asian Games Are Just Another Way to Gain More Recognition, N.Y. TIMES, Oct. 2, 1994, at All; John Schreiner, Taiwan Still Feels Threatened by China, FIN. POST, NOV. 19, 1994, at 53; China and Taiwan Narrow their Strait, U.S. NEWS & WORLD REP., Aug. 22, 1994, at 12; David and Goliath Try to Make Nice; Taipei and Beijing Sign an Unprecedented Cooperation Pact, L.A. TIMES, Aug. 13, 1994, at B7. But see Taipei calls for calm, HONGKONG STANDARD, June 18, 1995, at 8; US-China diplomatic standoff, id. at 1; Patrick E. Tyler, China Said to Seek to Rein in Taiwan with War Games, N.Y. TIMES, Aug. 19, 1995, at A1.

149 Foreign Ministry denies holding consultations with Japan on fishing, BBC Summary, supra note 147, Sept. 24, 1994; Hokkaido and Sakhalin agree to mediate fishing disputes, id., July 18, 1994; Japanese Foreign Minister talks with Russian counterpart on Kurils, id., Mar. 24, 1994; Sander Thoenes, Moscow unmoved in Kuril talks, MOSCOW TIMES, Mar. 24,1994, available in LEXIS, World Library, Curnws File; Japanese Foreign Minister talks with Russian counterpart on Kurils, BBC Summary, supra, Mar. 24, 1994. If these islands remain under Russian control, a maritime boundary delimitation will be necessary. Resolution in favor of Japan would require a maritime boundary further north.

150 See Tyler, supra note 148 (standoff in the Yellow Sea between U.S. and Chinese warships). The Vietnamese have reacted to China’s new attitude. See Patrick E. Tyler, Vietnamese Hint the U.S. Could Use Port Again, N.Y. TIMES, Nov. 24, 1994, at A4.

151 Ian Townsend-Gault & William G. Stormont, Offshore Petroleum Joint Development Arrangements: Functional Instrument? Compromise? Obligation?, in THE PEACEFUL MANAGEMENT OF TRANSBOUNDARY RESOURCES 51 (Gerald H. Blake et al. eds., 1995); Greg Englefield, Managing Boundaries in the South China Sea, BOUNDARY & SECURITY BULL., July 1994, at 36, 37 (International Boundaries Research Unit, University of Durham, UK); Michael Richardson, China’s Neighbors Aim for a “Litmus Test” on Spratlys, INT’L HERALD TRIB., May 13–14, 1995, at 5; Alatas comments on Malaysia Dispute, Spratlys, Iraq Sanctions, SUARA KARYA (Indonesia), Mar. 1, 1995, at 1, 11, BBC Summary, supra note 147, Mar. 3, 1995, pt. 3, Asia-Pacific; Southeast Asia; Indonesia; Mochtar Kusumaat-madja, Defusing Tension in the South China Sea, BUS. TIMES, June 9, 1993, at 23; Nayan Chanda, Southeast Asia: Divide and Rule, 157 FAR E. ECON. REV. 18 (1994), available in LEXIS, World Library, Curnws File; Gao, supra note 24, at 350; Peter Yu, supra note 25, at 178–79; Patrick Tyler, China Pledges Safe Passage for All Foreign Ships Around Contested Islands, N.Y. TIMES, May 19, 1995, at A5.

152 DOUGLAS M. JOHNSTON, THE THEORY AND HISTORY OF OCEAN BOUNDARY MAKING (1988).

153 See Islands of Discord, supra note 24; Chiu & Park, supra note 16, at 6; Dalchoong Kim, Ocean Transportation and Sea Lanes of Communication of Korea, in EAST ASIAN PERSPECTIVE, supra note 32, at 52, 61–62.

154 See Choon-ho Park, Fishing Under Troubled Waters, in PARK, supra note 31, at 53, 56–59; Mark J. Valencia & Jon M. Van Dyke, Vietnam’s National Interests and the Law of the Sea, 25 OCEAN DEV. & INT’L L. 217, 229–32 (1994); Park, supra note 16, at 37–39.

155 The LOS Convention, supra note 4, Arts. 123, 124, encourages this approach. Perhaps the solutions to various environmental and fisheries development issues that were developed under the Antarctic Treaty system could provide a precedent for such efforts. Antarctic Treaty, Dec. 1, 1959, 12 UST 794, 402 UNTS 71; Protocol on Environmental Protection to the Antarctic Treaty, Oct. 4, 1991, 30 ILM 1455 (1991). See THE NEW NATIONALISM AND THE USE OF COMMON SPACES 115–332 (Jonathan I. Charney ed., 1982); INTERNATIONAL RESPONSIBILITY FOR ENVIRONMENTAL HARM 149–77 (Tullio Scovazzi & Francesco Francioni eds., 1991); INTERNATIONAL LAW FOR ANTARCTICA 55–99 (Francesco Francioni & Tullio Scovazzi eds., 1987).

156 See LOS Convention, supra note 4, Arts. 198, 199, 221. The piracy problem in the area might also be addressed at an early stage. Pirates hold up six anglers and their skipper in South China Sea, Deutsche Presse-Agentur, Apr. 27, 1995, available in LEXIS, World Library, Curnws File.

157 See LOS Convention, supra note 4, Arts. 192–208, 210–33, 235–37. See generally Jonathan I. Charney, The Marine Environment and the 1982 United Nations Convention on the Law of the Sea, 28 INT’L LAW. 879, 885–94 (1994).

158 LOS Convention, supra note 4, Arts. 56, 207, 208, 210–14, 216–20. See Charney, supra note 157, at 888.

159 LOS Convention, supra note 4, Art. 211, para. 6.

160 Id., Arts. 55–68, 116–20, 122, 123; Draft Final Act of the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, UN Doc. A/CONF.164/32 (1995). On August 4, 1995, the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks adopted the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, UN Doc. A/CONF.164/33 (1995). See generally Charney, supra note 157, at 896–901.

161 Townsend-Gault & Stormont, supra note 151; Yu Hui, supra note 3; William Martin & Dianne Pickersgill, Recent Developments, The Timor Gap Treaty, 32 HARV. INT’L L.J. 566 (1991); JOINT DEVELOPMENT OF OFFSHORE OIL AND GAS (Hazel Fox ed., 1989).

162 Richardson, supra note 151; Kusumaatmadja, supra note 151, at 23; Gao, supra note 24, at 350–52.

163 Despite considerable past optimism, the hydrocarbon resources in the area have been developed only with subsidies and the greatest potential for such development appears to be in nearshore areas. Thus, the early pressure to settle the maritime boundaries in order to assure access to valuable hydrocarbons may not be strong today, although current activities indicate continued interest in the subject. Islands of Discord, supra note 24; Simon Holberton, Survey of China, FIN. TIMES, supra note 147, Nov. 7, 1994, at II; Bloomberg, Exxon Links with Indonesia on US $40 B Gas Plan, FIN. POST, NOV. 17, 1994, at 8; Exxon, Indonesia OK Huge Gas Project, DENV. POST, NOV. 17, 1994, at C2; Englefield, supra note 151, at 36.

164 See supra note 24.

165 LOS Convention, supra note 4, Arts. 2, 4, 55, 56, 76, 77. The Convention balances the interest in resource exploitation with the interest in protecting the biosystem as a whole. The right to living resources entails rational management, which must be based on the best scientific information available so as to produce the optimum sustainable yield in light of the entire biosystem both within and outside the area. See Charney, supra note 157, at 896–97.