Declarations and statements with respect to the 1982 UNCLOS: Potential legal disputes between the United States and China after U.S. accession to the convention

Ocean Development and International Law

Volumn 36, Issue 3, 2005, Pages 261-289

  Song, Yann Huei ^a  

^a INSTITUTE OF EUROPEAN AND AMERICAN STUDIES   (Taiwan)

Author keywords

Accession; China; Law of the Sea Convention; Legal disputes; United States

Indexed keywords

CONFLICT MANAGEMENT; INTERNATIONAL RELATIONS; LAW OF THE SEA; MARINE POLICY;

ASIA; CHINA; EASTERN HEMISPHERE; EURASIA; FAR EAST; NORTH AMERICA; UNITED STATES; WESTERN HEMISPHERE; WORLD;

EID: 24344457713     PISSN: 00908320     EISSN: None     Source Type: Journal    
DOI: 10.1080/00908320591004405     Document Type: Review

References (121)

1. For the text, see UN Doc. A/Conf.62/122, October 7, 1982, 1833 United Nations Treaty Series 397.
2. For a brief historical review regarding the UN's efforts to produce the 1982 UNCLOS, see United Nations, Department of Public Information, A Quiet Revolution: The United Nations Convention on the Law of the Sea (New York: United Nations, 1984).
3. Article 310: Article 309 does not preclude a State, when signing, ratifying or acceding to this Convention, from making declarations or statements, however phrased or named, with a view, inter alia, to the harmonization of its laws and regulations with the provisions of this Convention, provided that such declarations or statements do not purport to exclude or to modify the legal effect of the provisions of this Convention in their application to that State.
4. Article 287, paragraph 1: When signing, ratifying or acceding to this Convention or at any time thereafter, a State shall be free to choose, by means of a written declaration, one or more of the following means for the settlement of disputes concerning the interpretation or application of this Convention: (a) the International Tribunal for the Law of the Sea established in accordance with Annex VI; (b) the International Court of Justice; (c) an arbitral tribunal constituted in accordance with Annex VII; (d) a special arbitral tribunal constituted in accordance with Annex VIII for one or more of the categories of disputes specified therein.
5. Article 298, paragraph 1: When signing, ratifying or acceding to this Convention or at any time thereafter, a State may, without prejudice to the obligations arising under section 1, declare in writing that it does not accept any one or more of the procedures provided for in section 2 with respect to one or more of the following categories of disputes: (a) (i) disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations, or those involving historic bays or titles, provided that a State having made such a declaration shall, when such a dispute arises subsequent to the entry into force of this Convention and where no agreement within a reasonable period of time is reached in negotiations between the parties, at the request of any party to the dispute, accept submission of the matter to conciliation under Annex V, section 2; and provided further that any dispute that necessarily involves the concurrent consideration of any unsettled dispute concerning sovereignty or other rights over continental or insular land territory shall be excluded form such submission; (ii) after the conciliation commission has presented its report, which shall state the reasons on which it is based, the parties shall negotiate an agreement on the basis of that report; if these negotiations do Dot result in an agreement, the parties shall, by mutual consent, submit the question to one of the procedures provided for in section 2, unless the parties otherwise agree; (iii) this subparagraph does not apply to any sea boundary dispute finally settled by an arrangement between the parties, or to any such dispute which is to be settled in accordance with a bilateral or multilateral agreement binding upon those parties; (b) disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service, and disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction excluded from the jurisdiction of a court or tribunal under article 297, paragraph 2 or 3; (c) disputes in respect of which the Security Council of the United Nations is exercising the functions assigned to it by the Charter of the United Nations, unless the Security Council decides to remove the matter from its agenda or calls upon the parties to settle it by the means provided for in this Convention.
6. The declarations and statements are available on the United Nations, Office of Legal Affairs, Division for Ocean Affairs and the Law of the Sea (DOALOS), website at: .
7. For the text of the Resolution of Advice and Consent to Ratification, see "United Nations Convention on the Law of the Sea," Report to Accompany Treaty Doc. 103-39, Senate, 108th Congress, 2nd Session, Exec. Rpt. 108-10. at 17-22.
8. The declarations and understandings are also reproduced as an Appendix to John A. Duff, "A Note on the United States and the Law of the Sea: Looking Back and Moving Forward," Ocean Development and International Law, Vol. 35 (2004), pp. 214-219.
9. Article 309 reads: "No reservations or exceptions may be made to this Convention unless expressly permitted by other articles of this Convention."
10. For the text, see International Legal Materials, Vol. 33 (1994), p. 1309.
11. Available on the DOALOS website, supra note 5.
12. The term "excessive maritime claims" is defined by J. Ashley Roach and Robert Smith, United States Responses to Excessive Maritime Claims (Martinus Nijhoff, The Hague, 1996), at 15, as "[c]laims by coastal States to sovereignty, sovereign rights or jurisdiction over ocean areas that are inconsistent with the terms of the LOS Convention."
13. From August 26 to September 4, t993, the United States had sent its warships and military aircraft to follow the Chinese cargo-liner Yinhe that was suspected of carrying chemical weapon precursors, thiodiglycol and thionyl chloride, bound for Iran. China issued a statement (September 4, 1993), in which the Chinese Foreign Ministry accused the United States of infringing upon China's sovereignty and its right to freedom of navigation in international waters. This incident is discussed in detail below and see Zhao Lihai, "On Legal Responsibility for the Yinhe Incident,2: Central Political Management Cadre Academy Review, 1994 (in Chinese), at 36, 40-43;
14. Li Yin, "The Yinhe Incident and International Law: On State's Sovereignty' Freedom of Navigation, and State Responsibility," Politics and Law Journal, No. 3, 1994, at 61-64 (in Chinese);
15. and Lin Fong, "The Yinhe Incident and International Law," Law Review, No. 3, 1994, at 80-81 (in Chinese).
16. In 1994, the American aircraft carrier Kitty Hawk and a Chinese nuclear submarine squared off in international waters off China's coast in the Yellow Sea in an encounter that demonstrated the potential for naval conflict between the United States and China. See "Faceoff Between U.S. Ships, Chinese Sub Is Revealed," Los Angeles Times, December 14, 1994, at A1. See also infra notes 88-89.
17. Regarding this incident, see Yann-huei Song, "The EP-3 Collision Incident, International Law and Its Implications on the U.S.-China Relations," Chinese (Taiwan) Yearbook of International Law and Affairs, Vol. 19, (2001), pp. 1-15. See also infra notes 90-94.
18. See "U.S. says Chinese vessels harassed Navy oceanographic research ship," The Detroit News, September 28, 2002, available at . See also infra notes 99-101.
19. Respecting the Proliferation Security Initiative (PSI), see "The Proliferation Security Initiative" webpage on the U.S. Department of State website dated 28 July 2004, available at . This webpage contains the "Statement of Interdiction Principles," dated 4 September 2003, which sets out the approach to be taken by states involved in the PSI regarding interdiction at sea.
20. More generally on the PSI, see Michael Byers, "Policing the High Seas: The Proliferation Security Initiative," American Journal of International Law, Vol. 98, (2004), pp. 516-525.
21. Remarks by Tommy T.B. Koh, of Singapore, President of the Third United Nations Conference on the Law of the Sea, on December 6 and 11, 1982 at the final session of the Conference at Montego Bay, Jamaica, available on the DOALOS website, supra note 5.
22. A chronological lists of ratifications of, accessions and successions to the Convention and the related Agreements is available on the DOALOS website, supra note 5.
23. Statement by President Reagan, "U.N. Convention on the Law of the Sea - 1982," available in the website of Council of Ocean Law at: http://www.oceanlaw.org/reagan82.html.
24. It is worth noting that numerous other Western industrialized states had similar concerns regarding the deep sea-bed mining regime in UNCLOS and had not up to that time become party to UNCLOS.
25. "Message from the President of the United States transmitting United Nations Convention on the Law of the Sea, with Annexes, done at Montego Bay, December 10, 1982 (the Convention) and the Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, with Annex, adopted at New York, July 28, 1994 (the Agreement), and signed by the United States, subject to ratification, on July 29, 1994." S. Treaty Doc. 39, 103d Cong., 2d session. IV (1994).
26. See "Current Status of the Convention on the Law of the Sea," Hearings before the Committee on Foreign Relations, United States Senate, 103rd Cong., 2nd sess., August 11, 1994.
27. Marjorie Ann Browne, The Law of the Sea Convention and U.S. Policy, CRS Issue Brief for Congress, Congressional Research Service, the Library of Congress, updated June 2, 2004, p. CRS-14.
28. Under Article 312, para. 1, "[a]fter the expiry of a period of 10 years from the date of entry into force of this Convention, a State Party may, by written communication addressed to the Secretary-General of the United Nations, propose specific amendments to this Convention, ... and request the convening of conference to consider such proposed amendments."
29. See Report to accompany Treaty Doc. 103-39, supra note 6.
30. See the statements made by these groups at Hearings on the U.N. Convention on the Law of the Sea (Treaty Doc. 103-39), October 14, 2003 and October 21, 2003, Annex II to Report to accompany Treaty Doc. 103-39, supra note 6.
31. Ambassador Sichan Siv, U.S. Representative on the United Nations Economic and Social Council, Statement in the General Assembly on Oceans and Law of the Sea, New York, November 27, 2001, available on the website of U.S. Department of State at: .
32. Noted in Browne, supra note 22, p. CRS-2.
33. Jim Lobe, "Right-Wing Republicans Sinking Law of the Sea, Again," Inter Press Service, August 27, 2004, available at: .
34. "Rescuing the Law of the Sea," The New York Times, August 22, 2004.
35. Prepared Statement of Senator John F. Kerry, in the Report to accompany the Treaty Doc. 103-39, supra note 6, p. 159.
36. I b i d.
37. Report to accompany Treaty Doc. 103-39, supra note 6.
38. Ibid., at 8.
39. I b i d.
40. Ibid., at 8-9.
41. Ibid., at 10.
42. I b i d.
43. Ibid., at 10-11.
44. Ibid., at 11.
45. I b i d.
46. I b i d.
47. Ibid., at 12.
48. Ibid., at 12-13.
49. Ibid., at 13.
50. I b i d.
51. I b i d.
52. I b i d.
53. Ibid., at 14.
54. I b i d.
55. Ibid., at 15.
56. Article 316, paragraph 5: "[a]ny amendment relating exclusively to activities in the Area and any amendment to Annex XI shall enter into force for all States Parties one year following the deposit of instruments of ratification or accession by three fourths of the States Parties."
57. Defined in Article 1, paragraph 1 as: "the sea-bed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction."
58. Annex VI contains the Statute of the International Tribunal for the Law of the Sea.
59. Report to accompany Treaty Doc. 103-39, supra note 6, at 15.
60. Article 297, paragraph 2 relates to disputes concerning the interpretation or application of the provisions of the UNCLOS with regard to marine scientific research. Article 297, paragraph 3 relates to disputes concerning the interpretation or application of the provisions of the UNCLOS with regard to fisheries.
61. Greg Sheridan, "US 'free' to tackle N Korea," The Australian, July 9, 2003.
62. Deutsche-Presse Agentur, July 10, 2003.
63. "Beijing silent on alleged Chinese nuclear weapons designs found in Libya," Agence France Presse, February 17, 2004.
64. Foreign Ministry Spokesperson Zhang Qiyue's Press Conference on 4 November 2004, available on the website of Ministry of Foreign Affairs of the People's Republic of China at .
65. "The United Nations Convention on the Law of the Sea," Hearings before the Committee on International Relations, House of Representatives, 108th Congress, 2nd session, May 12, 2004, at 23.
66. "Foreign Ministry statement on Yinhe affairs; public apology from USA demanded," BBC Summary of World Broadcasts (LexisNexis News on-line search), September 6, 1993. For a detailed discussion on the incident, see Zhao Lihai, supra note 11;
67. Li Yin, supra note 11
68. and Lin Fong, supra note 11. and Lin Fong, "The Yinhe Incident and International Law," Law Review, No. 3, 1994, at 80-81 (in Chinese).
69. See Article 19 (2)(a)-(k).
70. Article 19 (2)(1) reads that "any other activity not having a direct bearing on passage." See R.R. Churchill and A. V. Lowe, The Law of the Sea (Manchester University: Juris Publishing, 1999, 3rd edition), at 85. The 1958 Geneva Convention on the Territorial Sea and Contiguous Zone, 516 United Nations Treaty Series 205.
71. Report to accompany Treaty Doc. 103-39, supra note 6, at 18.
72. Ibid., at 9.
73. Supra note 63.
74. Report to accompany Treaty Doc. 103-39, supra note 6, at 9.
75. Rear Admiral Schachte's statement, supra note 60, at 20. Greg Sheridan, "US 'free' to tackle N Korea," The Australian, July 9, 2003.
76. Prepared Statement of the Honorable William H. Taft, Legal Adviser, U.S. Department of State, "Accession to the 1982 Law of the Sea Convention and Ratification of the 1994 Agreement Amending Part Xi Of The Law of the Sea Convention," Senate Treaty Document 103-39;
77. Senate Executive Report 108-10, cited in "The United Nations Convention on the Law of the Sea," Hearings before the Committee on International Relations, supra note 60, at 40.
78. The declaration is reproduced in Myron H. Nordquist and Choon Ho Park, eds. North America and Asia-Pacific and the Development of the Law of the Sea: Treaties and National Legislation (London/Rome/New York: Oceana Publications, Inc., 1981) at 6. The document can also be found in International Boundary Study, Series A, Limits in the Seas, No. 43: Straight Baselines: People's Republic of China (The Geographer, Office of the U.S. Geographer, Bureau of Intelligence and Research).
79. Noted in Liyu Wang and Peter H. Pearse, "The New Legal Regime for China's Territorial Sea," Ocean Development and International Law, Vol. 25 (1994), p. 438.
80. The text of the law can be found in United States Office of Ocean Affairs, Bureau of Oceans and International Environmental and Scientific Affairs, U.S. Department of State, Limits in the Seas, No. 117, Straight Baseline Claim: China. July 9, 1996, Annex 2, at 11-14.
81. I b i d.
82. For the Chinese declaration, see the DOALOS website, supra note 5.
83. See Roach and Smith, supra note 10, at 260-263.
84. Srikanth Kondapalli, "Han-Class Submarine Incident: Portends for China-Japan Relations and Beyond," Institute for Defence Studies and Analyses, New Delhi, India, available at: www. peaceforum.org.tw.
85. Report to accompany Treaty Doc. 103-39, supra note 6, at 9.
86. Prepared Statement of the Honorable William H. Taft, supra note 69, at 40.
87. Report to accompany Treaty Doc. 103-39, supra note 6, at 18.
88. See William S. Cohen, Secretary of Defense, Annual Report to the President and the Congress, 1999, Appendix I (Freedom of Navigation). For the report and the appendix, visit the Department's web site at: .
89. See generally Zou Keyuan, "Redefining the Legal Status of the Taiwan Strait," International Journal of Marine and Coastal Law, Vol. 15 (2000), 245.
90. Respecting the Regional Maritime Security Initiative, see "RMSI: The Idea, The Facts" webpage on the website of the U.S. Navy Pacific Command at www.pacom.mil/rmsi/.
91. Ji Guoxing, "U.S. RMSI Contravenes UN Convention on the Law of the Sea," PacNet 29, July 8, 2004.
92. See S.H. Lay, R. Churchill, et al., eds. New Directions in the Law of the Sea, Vol. III (New York: Oceana Publications, 1973), at 320;
93. and UN Doc/A/AC/SC II/SR 36, 1973, at 21 and UN Doc/A/AC/138/SC II/L 34, 1973, cited in Zhiguo Gao, "China and the LOS Convention," Marine Policy, Vol. 15, (1991), at 204.
94. B. A. Hanizah, "NO basis for US patrols," New Straits Times (Malaysia), July 31, 2004, at 8.
95. Report to accompany Treaty Doc. 103-39, supra note 6, at 19.
96. Article 58 is reproduced below.
97. See Antonio Kamiya, "U.S. carrier, Chinese sub play cat and mouse in Yellow Sea," Japan Economic Newswire, December 15, 1994
98. and Nick Rufford, "Militant China rises fears of new cold war," Sunday Times, December 18, 1993.
99. Noted in Patrick E. Tyler, "As Deng Fades, China's Leaders Tighten Crip on Power," New York Times, December 19, 1994, at A3.
100. Elisabeth Rosenthal and David E, Sanger, "U.S. Plane in China after It Collides with Chinese Jet," New York Times, April 2, 2002, at A1 a
101. and John Pomfret, "U.S., Chinese Warplanes Collide over S. China Sea," Washington Post, April 2, 2001, at A01.
102. "FM Spokesman gives Full Account of Air Collision," Consulate General of the People's Republic of China in Houston, April 4, 2001, available at: .
103. See Erik Eckholm, "China Faults U.S. in Incident; Suggests Release of Crew Hinges on Official Apology," New York Times, April 4, 2001, at A1.
104. See "Secretary Rumsfeld Briefs on EP-3 Collision," Defense Link of the U.S. Department of Defense, April 13, 2001, available at: .
105. See Guy Gugliotta, 2:U.S. Expects Return of Plane, Crew," Washington Post, April 2, 2001, at A14
106. and David E. Sanger, "Powell Sees No Need for Apology Bush Again Urges Return of Crew," New York Times, April 4, 2001, at A1.
107. For the Chinese text of the law, see People's Daily, June 30, 1998, at 2. An English version of the law can be found in Law of the Sea Bulletin, No. 38, 1998, at 28-31.
108. Third United Nations Conference on the Law of the Sea, Official Records (67th plenary meeting), Vol. 5, paragraph 81.
109. See U.S. Department of the Navy, The Commander's Handbook on the Law of the Naval Operations, NWP 1-14M. 1995, pp. 2-3.
110. Report accompanying Treaty Doc. 103-39, supra note 6, at 19.
111. Mark Oliva, "Before EP-3, China turned away U.S. research ship in international waters," Stars and Stripes, May 20, 2001, available at: .
112. Bill Gertz and Rowan Scarborough, "Chinese harass ship," Washington Times, September 20, 2002, at A13.
113. "Spokeswoman Says US Navy Activities Infringe Chinese Rights," BBC Monitoring International Reports, September 26, 2002.
114. See supra note 74.
115. "U.S. Warns China on Sea Expansion," International Herald Tribune, September 19, 1996.
116. I b i d.
117. Declaration of the Government of the People's Republic of China on the Baseline of the Territorial sea of the People's Republic of China on May 15, 1996 reproduced in Limits in the Sea, No. 117, supra 72, at 9-10.
118. Ibid., at 5 and 8.
119. Ibid., at 8. See also Article 46 of the UNCLOS.
120. The text of Agreement between Department of Defense of the United States of America and the Ministry of National Defense of the People's Republic of China on Establishing a Consultation Mechanism to Strengthen Military Maritime Safety can be found in the website of The Nuclear Threat Initiative (NTI) at: .
121. The first meeting of U.S.-China Military Maritime-Air Safety working group was held in Hawaii in August 2002, and the second in Qingdao, China in December 2002. Two special meetings under the U.S.-China Military Maritime Consultation Agreement were held in Guam and Shanghai in September 2001 and March 2004, respectively.