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Published online by Cambridge University Press: 17 February 2009
Until recently few international law scholars and governments have paid much attention to the special sea law problems concerning mid-ocean archipelagos. The question of whether a group of islands can be considered as a unit in delimiting territorial sea has, according to most authorities, been adequately solved by general rules concerning the delimitation of the territorial sea of the mainland or island. The 1929 Harvard Draft on the Law of Territorial Sea contains no provision relating to groups of islands or archipelagos. Article 7 of the Draft provides that the territorial sea of islands should be measured in a similar way to that of the mainland. It is a contention of this article that no different rule should be established for groups of islands or archipelagos, except that, if the outer fringe of islands is sufficiently close to form one complete belt of marginal sea, then the waters within such a belt should be considered as territorial waters.
1. See American Journal of International Law, Supplement, Vol. 23 (1929), p. 287Google Scholar.
2. League of Nations Documents, C. 351(b), M. 145(b), 1930 V. 16, p. 192.
3. Ibid. p. 200.
4. See UN Conference on the Law of the Sea, Official Records, Vol. 1 (1958), pp. 239, 15, 43Google Scholar.
5. United States Treaties and Other International Agreements, Vol. 15, p. 1606; Treaties and Other International Acts Series, p. 5639; United Nations Treaty Series (UNTS), Vol. 516, p. 205.
6. See UN Conference on the Law of the Sea, Official Records (1960), p. 51 et seq.
7. See the recent literatures cited in Knight, H. Gary, The Law of the Sea: Cases, Documents, and Readings (Washington D.C.: Nautilus Press, 1975), p. 192Google Scholar.
8. E.g. in a recent excellent study on this problem, the South China Sea Islands were not mentioned at all. See O'Connell, D. P., “Mid-ocean archipelagos in international law,” British Yearbook of International Law, Vol. 45 (1971), pp. 1–27 (1973)Google Scholar.
9. This principle means that a state may employ the method of straight base-lines joining the outermost points of the outermost islands and drying reefs of an archipelago in drawing the baselines from which the extent of the territorial sea, economic zone and other special jurisdictions are to be measured.
10. Colombos, C. John (ed.), The International Law of the Sea (New York: David McKay, 1962. 5th revision), p. 110Google Scholar.
11. UN Doc. A/CONF. 62/C.2/L.49 (9 August 1974), in Third UN Conference on the Law of the Sea, Official Records, Vol. 3 (1975), pp. 226–27Google Scholar.
12. UN Doc. A/CONF. 62/C.2/L.51 (12 August 1974), in ibid. p. 227.
13. See ibid. Vol. 2, pp. 260–73.
14. Ibid. p. 265.
15. Ibid. p. 266.
16. Ibid. p. 267.
17. In 1964 Secretary of State Rusk sent a memorandum to Attorney-General Kennedy, rejecting an archipelago formula for Hawaii. See Whiteman, M. M., Digest of International Law (Washington D.C.: Government Printing Office), Vol. 4 (1965), p. 281Google Scholar.
18. UN Doc. A/A.C. 138/SC.II/L.34 (1973), reprinted in International Legal Materials, Vol. 12 (1973), pp. 1231–234Google Scholar.
19. Third UN Conference on the Law of the Sea, Official Records, Vol. 4 (1975), p. 153Google Scholar.
20. Ibid. pp. 20–21.
21. UN Doc. A/CONF. 62/WP. 8/PARTII, in ibid. Vol. 4, p. 152 et seq.
22. Ibid. pp. 168–70.
23. Ibid. p. 170.
24. UN Doc. A/CONF. 62/WP. 8/REV. 1/PART II, in ibid. Vol. 5 (1976), p. 155 et seq.
25. See ibid. pp. 170–72.
26. Part IV (Articles 46–54) of the Text, UN Doc. A/CONF. 62/WP. 10 (15 July 1977), pp. 37–40.
27. See Chiu, Hungdah, “Chinese attitude toward continental shelf and its implication on delimiting seabed in Southeast Asia” (Baltimore: University of Maryland Law School, 1977. Occasional Papers/Reprints Series in Contemporary Asian Studies. No. 1)Google Scholar.
28. UNTS, Vol. 499, p. 311.
29. Chiu, Hungdah, “Chinese contemporary practice and judicial decisions relating to international law, 1968–1970,” The Annals of the Chinese Society of International Law, Vol. 7 (08 1970), p. 84Google Scholar, also in Free China Weekly, Vol. 9, No. 48 (20 July 1969), p. 4.
30. Li-fa yuan Kung-pao (Gazette of the Legislative Yuan) (Taipei), Vol. 59, No. 64 (22 08 1970), p. 3Google Scholar; English transl. in International Legal Materials, Vol. 10 (1971), p. 452CrossRefGoogle Scholar.
31. Federal Republic of Germany v. Denmark, Federal Republic of Germany v. The Netherlands, I.C.J. Rep. 3 (1969).
32. Chung-yang jih-pao (Central Daily News) (Taipei), 22 08 1970Google Scholar.
33. However, either the ROC or the PRC may still use the archipelago principle to claim a much larger territorial sea of these islands and therefore also the seabed of the territorial sea. Nevertheless, it should be noted the Law of the Sea Conference seems now almost definitely to limit the application of the archipelago principle only to archipelagic states. See supra, notes 23, 24 and 25, and accompanying text.
34. International Legal Materials, Vol. 10 (1971), p. 452CrossRefGoogle Scholar.
35. E.g. see Keng-sheng, Chou, “The important significance of our government's declaration concerning territorial sea,” Shih-chieh chih-shih (World Knowledge) (Peking), No. 18 (20 09 1958), p. 16Google Scholar and Chi, Kuo, “Important steps for safeguarding the sovereignty of the country,” Cheng-fa yen-chiu (Studies in Political Science and Law), No. 5 (14 10 1958), p. 10Google Scholar.
36. hsueh-yuan, Wai-chiao (Institute of Diplomacy) (ed.), Kuo-chi kung-fa ts'an-k'ao wen-chien hsuan-chi (Compilation of Reference Documents of International Law) (Peking: Shih-chieh chih-shih ch'u-pan-she, 1958), pp. 254–63Google Scholar (high seas), pp. 265–70 (territorial sea).
37. Transl. under the same title in Peking Review, Vol. 13, No. 50 (11 12 1970), p. 15Google Scholar.
38. UN Doc. A/AC. 138/SR. 72 (1972); reprinted in International Legal Materials, Vol. 11 (1972), p. 654.
39. Jen-min jih-pao (People's Daily), 12 April 1972.
40. Article 1 of the Convention provides: “For the purpose of these Articles, the term ‘continental shelf’ is used as referring (a) to the seabed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 metres or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas;(b) to the seabed and subsoil of similar submarine areas adjacent to the coasts of islands.”
41. See the excerpts of the speech reprinted in Cohen, and Chiu, , People's China and International Law (Princeton: Princeton University Press, 1974), Vol. 1 (1974), pp. 496–97Google Scholar.
42. See supra, note 18, and accompanying text.
43. On 30 January 1974, Japan and the Republic of Korea (ROK) signed at Seoul an agreement concerning the joint development of the continental shelf. On 4 February, the spokesman of the PRC Foreign Ministry issued a statement saying that “according to the principle that the continental shelf is the natural extension of the continent, it stands to reason that the question of how to divide the continental shelf in the East China Sea should be decided by China and the other countries concerned through consultations.” The statement denounced the “joint development zone” marked off by Japan and the ROK “behind China's back” as “an infringement on China's sovereignty …” Hsinhua Weekly, No. 6 (11 02 1974), p. 27Google Scholar. On 13 June 1977, upon learning of the approval of the Japanese Diet of the agreement the PRC Foreign Ministry again issued another statement, saying that: “The East China Sea continental shelf is the natural extension of the Chinese continental territory. The People's Republic of China has inviolable sovereignty over the East China Sea continental shelf … Without the consent of the Chinese Government, no country or private persons may undertake development activities on the East China Sea continental shelf. Whoever does so must bear full responsibility for all the consequences arising therefrom.” Peking Review, Vol. 20, No. 25 (17 06 1977), p. 17Google Scholar.
44. “At UN Conference on Law of the Sea, Chinese delegation leader Chai Shu-fan's speech,” Peking Review, Vol. 17, No. 28 (13 07 1974), pp. 11–12Google Scholar. PRC made a more comprehensive statement at the sixth session of the Conference to elaborate its stand outlined in the second session. See “At the UN Sea Law Conference, China's stand on the question of exploitation of international seabed,” Peking Review, Vol. 20, No. 28 (8 07 1977), pp. 22–23Google Scholar.
45. “At UN Conference,” supra, note 44, p. 12.
46. UN Doc. A/CONF. 62/WP. 10 (15 July 1977), p. 52.
47. Tzu-yueh, Cheng, Nan-hai chu-tao ti-li chih-lueh (General records on the Geography of Southern Sea Islands) (Shanghai: Shang-wu ying-shu kuan, 1948)Google Scholar.
48. Cf. Article 221 of the Informal Composite Negotiating Text, which provides, among others, for the kinds of action a coastal state may take where there are clear grounds for believing that a ship in its economic zone or territorial sea had violated anti-pollution measures in the form of “applicable international standards or national laws and regulations conforming and giving effect to such international rules or standards.” UN Doc. A/CONF. 62/WP. 10 (15 July 1977), p. 121.
49. As pointed out by O'Connell, so far no serious attention has been paid by international lawyers to the special needs of coral islands. See O'Connell, , supra, note 8, pp. 54–55Google Scholar.
50. For a study of the legal status of South China Sea Islands, see Chiu, and Park, , “Legal status of the Paracel and Spratly Islands,” Ocean Development and International Law Journal, Vol. 3 (1975), pp. 1–28CrossRefGoogle Scholar, and Heinzig, Dieter, Disputed Islands in the South China Sea – Paracels – Spratlys – Pratas – Macclesfield Bank (Institute of Asian Affairs in Hamburg, 1976)Google Scholar, and the literature cited there.
51. See supra, note 30, and accompanying text.
52. “Chinese representative speaks at ECAFE meeting,” Peking Review, Vol. 17, No. 15 (12 04 1974), pp. 6–7Google Scholar.
53. “Chinese delegation makes statement on ‘international co-operation in cartography,’“ Hsinhua Weekly, No. 19 (13 05 1974), pp. 25–26Google Scholar.
54. See supra, note 18.
55. See ibid.
56. UN Doc. A/CONF.62/WP. 10 (15 July 1977), pp. 68–69.
57. Continental Shelf Act 1966 (Act of Parliament No. 57 of 1966, 28 July 1966), in National Legislation and Treaties Relating to the Territorial Sea, the Contiguous Zone, the Continental Shelf, the High Seas and to Fishing and Conservation of the Living Resources of the Sea (UN Doc. ST/LEG/SER. B/15) (1970), p. 375.
58. See International Boundary Study, Series A, Limits in the Sea, No. 33 (Philippines) (Published by The Geographer, Bureau of Intelligence and Research, Department of State).
59. Chi-wu, Chü, Tsu-kuo ti nan-hai chu-tao (The Southern Sea Islands of the Motherland) (1954), p. 36Google Scholar.
60. On 22 December 1975, the editorial of Hanoi's authoritative newspaper, Nhan Dan, said that the Vietnamese armed forces will protect “the independence and sovereignty of Vietnam and the integrity of her territory including her territorial waters, her borders, her offshore islands and her continental shelf.” “Hanoi warns China on disputed islands,” The Sun (Baltimore), 23 12 1975, p. A2Google Scholar. Recently, it was reported that a Vietnamese map published after the fall of the RVN has included the Spratlys and the Paracels in the Vietnamese territory. See “Map of Vietnam omits north-south border,” New York Times, 2 03 1976, p. 8Google Scholar. On learning of the publication of the map by Vietnam, the ROC Foreign Ministry spokesman issued a statement on 19 March 1976, reiterating the ROC's claim to these islands. See Chung-yang jih-pao (Central Daily News) (Taipei), 20 03 1976, p. 1Google Scholar. The PRC did not publicly respond to the Vietnamese map.
61. Before the fall of the RVN, the PRC had made many statements asserting her sovereignty over the Spratlys and the Paracels; see Chiu and Park, supra, note 50. On 24 November 1975, an article entitled “South China Sea Islands, Chinese territory since ancient times,” by Shih Ti-tsu, appeared in the Kuang-ming jih-pao (Enlightenment Daily). The article was reprinted in full in Jen-min jih-pao the next day and was translated into English and published in Peking Review, Vol. 18, No. 50 (12 12 1975), pp. 10–15Google Scholar. The article was also reprinted in the Hong Kong communist newspaper with an accompanying commentary accusing the Soviet Union of trying to “stir up” Vietnam against China by backing the Vietnamese claim to the islands. See Butterfield, Fox, “China reasserts claim to islands,” New York Times, 27 11 1975, p. 10Google Scholar. Subsequently, the whole article was reprinted in Ti-li chih-shih (Knowledge of Geography), No. 9 (December 1975), pp. 1–4.
62. See Butterfield, Fox, “Spratly Islands causing concern,” New York Times, 25 01 1976, p. 17Google Scholar. Recently, upon learning a consortium of Swedish-Filipino oil exploration firms had started oil drilling operations in the area of Liletan (Reed Bank), the PRC Foreign Ministry issued a statement on 14 June 1976, reasserting its sovereignty by saying that “any foreign country's claim to sovereignty over any of the Nansha (Spratlys) Islands is illegal and null and void.” Jen-min jih-pao, 14 06 1976, p. 1Google Scholar; English transl. in Peking Review, Vol. 19, No. 25 (18 06 1976), p. 4Google Scholar. With respect to the Paracels, the PRC has in recent years stepped up its development there, e.g. see report in Li-tsu, Shih, “A trip to Hsisha (Paracels),” Ti-li chih-shih, No. 2 (02 1977), pp. 10–12Google Scholar.
63. “Taiwan oil spill fouls 50 miles of island's coast,” New York Times, 4 03 1977, p. A5Google Scholar.
