Joint development in the South China Sea: A new approach

International Journal of Marine and Coastal Law

Volumn 21, Issue 1, 2006, Pages 83-109

  Keyuan, Zou ^a  

^a NATIONAL UNIVERSITY OF SINGAPORE   (Singapore)

Author keywords

[No Author keywords available]

Indexed keywords

ASEAN; BILATERAL AGREEMENT; LAW OF THE SEA; MARINE POLICY; MARITIME BOUNDARY; POLITICAL CONFLICT; REGIONAL SECURITY; TERRITORIAL DELIMITATION; TERRITORIAL DISPUTE;

PACIFIC ISLANDS; PACIFIC OCEAN; SOUTH CHINA SEA; SPRATLY ISLANDS;

EID: 33751079078     PISSN: 09273522     EISSN: None     Source Type: Journal    
DOI: 10.1163/157180806776639510     Document Type: Article

References (122)

1. The LOS Convention was adopted in the Third United Nations Conference on the Law of the Sea on 10 December 1982 and entered into force on 16 November 1994. Text is printed in The Law of the Sea: Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index (New York, United Nations, 1983).
2. Art. 122 of the LOS Convention.
3. In a broad sense, the Gulf of Thailand is part of the whole South China Sea. However, it is not included here due to its irrelevance to the subject matter of the present study.
4. J.R.V. Prescott, The Maritime Political Boundaries of the World (London, Methuen, 1985), p. 209.
5. According to Hungdah Chiu, there are 127 islands in the South China Sea based upon a survey conducted during 1946-1947 sponsored by the then Chinese Ministry of Internal Affairs: Hungdah Chiu, "South China Sea Islands: Implications for Delimiting the Seabed and Future Shipping Routes", (1977) China Quarterly 72, 756.
6. See Zhao Huanting et al., Geomorphology and Environment of the South China Coast and the South China Sea Islands (Beijing, Science Press, 1999) (in Chinese), p. 484.
7. For details of this line and its legal implications, see Zou Keyuan, "The Chinese Traditional Maritime Boundary Line in the South China Sea and Its Legal Consequences for the Resolution of the Dispute over the Spratly Islands", (1999) 14 International Journal of Marine and Coastal Law 1, 27-55.
8. Zhao et al., note 6 above, p. 484.
9. See "South China Sea Region", Country Analysis Briefs, September 2003, at http://www.eia.doe.gov/emeu/cabs/schina.html (accessed 4 October 2004).
10. Ibid.
11. Wilarso, "The Future of Oceanic Oil and Gas: The Case of Indonesia" in Seoung-Yong Hong, Edward L. Miles and Choon-ho Park (eds.), The Role of the Oceans in the 21st Century (University of Hawaii, Law of the Sea Institute, 1995), p. 455.
12. A main reason that there is no other claimant for the Macclesfield Bank is that this Bank is permanently submerged. Otherwise, Vietnam or the Philippines might have claimed it as well.
13. The other two factors are: Military confrontation in the Korean Peninsular, and the controversial US-Japan military alliance with Taiwan's separatist activities. See Yan Xuetong, "Co-Operation Key to Regional Peace", China Daily, 27 March 1998, p. 4.
14. "Indonesia", Country Analysis Briefs, July 2004, at http://www.eia.doe.gov/emeu/cabs/indonesa.html (accessed 4 October 2004).
15. For details, see Zou Keyuan, "The Chinese Traditional Maritime Boundary Line in the South China Sea and Its Legal Consequences for the Resolution of the Dispute Over the Spratly Islands", (1999) 14 IJCML 1, 27-55.
16. "Philippines", Country Analysis Briefs, July 2004, at http://www.eia.doe.gov/emeu/cabs/philippi.html (accessed 4 October 2004).
17. See "Sixteen Firms Want to Hunt For Oil in Philippines", Reuters, 3 March 2004, at http://www.forbes.com/business/newswire/2004/03/03/rtr1284135.html (accessed 26 March 2004).
18. "Malaysia", Country Analysis Briefs, July 2004, at http://www.eia.doe.gov/emeu/cabs/malaysia.html (accessed 4 October 2004).
19. Ibid.
20. "More Than 10 Countries Carve Up South China Sea Resources and the Chinese Government Can Do Nothing", Liaowan Dongfang, 15 January 2004, at http://peacehall.com (accessed 16 January 2004).
21. "Brunei", Country Analysis Briefs, August 2004, at http://www.eia.doe.gov/emeu/cabs/brunei.html (accessed 4 October 2004).
22. "Vietnam", Country Analysis Briefs, June 2004, at http://www.eia.doe.gov/emeu/cabs/vietnam.html (accessed 4 October 2004).
23. "China", Country Analysis Briefs, July 2004, at http://www.eia.doe.gov/emeu/cabs/china.html (accessed 4 October 2004).
24. For details, see Zou Keyuan, "China's Governance Over Offshore Oil and Gas Development and Management", (2004) 35 Ocean Development and International Law 4, 339-364.
25. Masahiro Miyoshi, "The Joint Development of Offshore Oil and Gas in Relation to Maritime Boundary Delimitation", (1999) 2 Maritime Briefing 5, 5.
26. The talk was held on 25 October 2004 without result. See "FM: Talks With Japan on Sea Border Advance", China Daily, 26 October 2004.
27. See International Law Association, (1988) Report on Joint Development of Non-Living Resources in the Exclusive Economic Zone, p. 2.
28. I.T. Gault, "Joint Development of Offshore Mineral Resources - Progress and Prospects for the Future", (1988) 12 Mineral Resources Forum 3, 275
29. cited in British Institute of International and Comparative Law, Joint Development of Offshore Oil and Gas: A Model Agreement for States for Joint Development with Explanatory Commentary (London, British Institute of International and Comparative Law, 1989), p. 43.
30. See William T. Onorato, "Apportionment of an International Common Petroleum Deposit", (1968) 17 International and Comparative Law Quarterly 85-101.
31. See William T. Onorato, "Apportionment of an International Common Petroleum Deposit", (1977) 26 International and Comparative Law Quarterly 324-337.
32. See Onorato, ibid., p. 325.
33. Miyoshi (1999), note 25 above, p. 1.
34. According to Miyoshi, joint development is defined as "an inter-governmental arrangement of a provisional nature, designed for functional purpose of joint exploration for and/or exploitation of hydrocarbon resources of the seabed beyond the territorial sea", ibid., p. 3.
35. British Institute of International and Comparative Law, note 28 above, p. 45.
36. See Miyoshi, note 25 above, p. 23.
37. See Miyoshi, note 25 above, p. 37.
38. North Sea Continental Shelf Cases, Judgment of 20 February 1969, [1969] ICJ Rep 53
39. See Ibrahim F.I. Shihata and William T. Onorato, "Joint Development of International Petroleum Resources in Undefined and Disputed Areas" in G.H. Blake, M.A. Pratt and C.H. Schofield (eds.), Boundaries and Energy: Problems and Prospects (London, Kluwer Law International, 1998), pp. 436-437.
40. Masahiro Miyoshi, "Is Joint Development Possible in the South China Sea?" in Mochtar Kusuma-Atmadja, Thomas A. Mensah and Bernard H. Oxman (eds.), Sustainable Development and Preservation of the Oceans: The Challenges of UNCLOS and Agenda 21 (Honolulu, the Law of the Sea Institute, University of Hawaii, 1997), pp. 613-614.
41. For details of some existing cases, see Miyoshi, note 25 above, pp. 7-41.
42. For details, see Shihata and Onorato, note 37 above, pp. 438-441.
43. Miyoshi, note 25 above, p. 1.
44. Miyoshi, ibid., p. 12.
45. See the Statement of the PRC Ministry of Foreign Affairs, 4 February 1974, reprinted in Law Department of Peking University (ed.), Collected Materials on the Law of the Sea (Beijing, People's Press, 1974) (in Chinese), p. 88.
46. See Zhao Lihai, Studies on the Law of the Sea (Beijing, Peking University Press, 1996) (in Chinese), p. 55.
47. See Masahiro Miyoshi, "International Maritime Boundaries and Joint Development: A Quest for a Multilateral Approach" in G.H. Blake, M.A. Pratt and C.H. Schofield (eds.), note 37 above, p. 465.
48. Hurng-yu Chen, "The Prospects for Joint Development in the South China Sea", (1991) 27 Issues and Studies 12, 122.
49. Nguyen Hong Thao, "Vietnam and Joint Development in the Gulf of Thailand", (2003) 8 Asian Yearbook of International Law 138-139.
50. Text is reprinted in Jonathan I. Charney and Lewis M. Alexander (eds.), International Maritime Boundaries (Dordrecht, Martinus Nijhoff Publishers, 1993), vol. 1, pp. 1099-1123.
51. See ibid.
52. For further details, see David M. Ong, "The 1979 and 1990 Malaysia-Thailand Joint Development Agreements: A Model for International Legal Co-Operation in Common Offshore Petroleum Deposits?", (1999) 14 IJCML 2, 207-246.
53. See Art. 7 of the 1990 Agreement.
54. See Art. 8 of the 1990 Agreement.
55. See Nguyen Hong Thao, note 47 above, p. 145.
56. See British Institute of International and Comparative Law, note 28 above, p. 160.
57. The proceedings of the two conferences were later published in (1981) 6 Energy 11 and (1985) 10 Energy 3/4 as special issues.
58. Rainer Lagoni, "Interim Measures Pending Maritime Delimitation Agreement", (1984) 78 American Journal of International Law 2, 345-368.
59. Miyoshi, note 38 above, pp. 610-624.
60. Miyoshi, note 38 above, pp. 618-620.
61. For the concept of common heritage of mankind, see Zou Keyuan, "The Common Heritage of Mankind and the Antarctic Treaty System", (1991) 38 Netherlands International Law Review 2, 173-198.
62. Robert W. Smith, "Joint (Development) Zones: A Review of Past Practice and Thoughts on the Future" in Mochtar Kusuma-Atmadja, Thomas A. Mensah and Bernard H. Oxman (eds.), note 38 above, p. 661.
63. See ibid.
64. Lian A. Mito, "The Timor Gap Treaty as a Model for Joint Development in the Spratly Islands", (1998) 13 American University International Law Review 762.
65. Others have also written on the possibility of joint development in the South China Sea, e.g., David M. Ong, "The Spratlys Dispute Over Marine Resources: Time for a New Approach?", (1994) 12 Oil & Gas Law and Taxation Review 11, 352-356
66. David M. Ong, "Joint Development of the Spratly Islands' Marine Resources: Legal Problems and Prospects for Solutions", (1993) 11 Oil & Gas Law and Taxation Review 5, 158-164.
67. Texts are reprinted in Charney and Alexander (eds.), note 48 above, pp. 1245-1328.
68. Text of the MOU and its attachment is annexed to David M. Ong, "The New Timor Sea Arrangement 2001: Is Joint Development of Common Offshore Oil and Gas Deposits Mandated Under International Law?", (2002) 17 IJMCL 1, 106-122.
69. It was signed on 20 May 2002 and came into force on 2 April 2003. Text is available at http://www.austlii.edu.au/au/other/dfat/treaties/2003/ 13.html (accessed 10 November 2004).
70. It was signed on 6 March 2003. Text is available at http://www.austlii.edu.au/au/other/dfat/treaties/notinforce/2003/6.html (accessed 10 November 2004).
71. For relevant papers, see China Institute for Marine Development Strategy, State Oceanic Administration (ed.), Selected Papers Presented to the Conference on the South China Sea (Beijing, March 1992) (in Chinese).
72. See Wu Shicun, "Certain Reflections on Joint Development in the Nansha (Spratly) Islands" in Zhong Tianxiang, Han Jia and Ren Huaifeng (eds.), Proceedings of the South China Sea Workshop (2002) (Hainan, Hainan Institute for the South China Sea, 2002) (in Chinese), p. 72.
73. Wu, ibid., p. 73.
74. See Li Guoqiang, "Preliminary Discussion on Joint Development in the South China Sea" in Zhong Tianxiang, Han Jia and Ren Huaifeng (eds.), note 67 above, p. 134.
75. See Liang Jinzhe, "Reflections on Certain Issues of Developing Disputed Areas in the South China Sea" in Zhong Tianxiang, Han Jia and Ren Huaifeng (eds.), ibid., p. 102.
76. See Liang, ibid., pp. 111-112.
77. See Liang, ibid., pp. 110-111.
78. Lin Zhong, "Scholarly Discussion on China and Joint Development", (1998) Modern Legal Science (in Chinese) 1, 75.
79. Hasjim Djalal, "The Relevance of the Concept of Joint Development to Maritime Disputes in the South China Sea", (1999) 27 Indonesian Quarterly 3, 178-186.
80. Aileen S.P. Baviera and Jay L. Batongbacal, "When Will Conditions Be Ripe? Prospects for Joint Development in the South China Sea", (1999) 4 Chronicle 1-2, http://www.up.edu.ph/cids/chronicle/articles/ chronv4n1and2/infocus08baviera_pg3.html (accessed 1 November 2004).
81. Mark J. Valencia, Jon M. Van Dyke and Noel A. Ludwig, Sharing the Resources of the South China Sea (The Hague, Martinus Nijhoff Publishers, 1997). It was later republished by the University of Hawaii Press in 1999.
82. Valencia, Van Dyke and Ludwig, ibid., p. 1.
83. Valencia, Van Dyke and Ludwig, ibid., pp. 211, 220-221.
84. Valencia, Van Dyke and Ludwig, ibid., p. 207.
85. In a document released in 2002 by the Philippines military, the Philippines realised that it could develop oil deposits in the Kalayaan Island group since "no sensible foreign investor would come in because the government cannot guarantee a climate of security to underwrite their investments". See "China Accused Over Disputed Spratly Islands", Energy Compass, 18 July 2002, at http://80-proquest.umi.com.libproxy1.nus.edu.sg (accessed 24 February 2004).
86. Text of the Declaration on the Conduct of Parties in the South China Sea is available at http://www.aseansec.org/13163.htm (accessed 2 July 2003).
87. Ibid.
88. Hasjim Djalal, note 74 above, pp. 180-181.
89. Cited in Djalal, ibid., p. 182.
90. Djalal, ibid., p. 183.
91. Djalal, ibid., p. 183.
92. Djalal, ibid., p. 185.
93. Participants in the joint development plan should be those which are directly interested parties and which are maintaining presence in the area. Djalal, ibid., p. 185.
94. See Djalal, ibid., p. 185.
95. See Djalal, ibid., p. 186.
96. The other is "one country, two systems". See Selected Works of Deng Xiaoping, vol. 3, p. 87.
97. See People's Daily (in Chinese), 14 December 1990.
98. "Wu Bangguo Proposes a Multiple Co-Operation For Oil in the Spratly Islands", Lianhe Zaobao, 1 September 2003.
99. "Chinese, Philippine Firms Join Forces to Look For Oil in South China Sea", Agence France Presse, 13 November 2003.
100. "RP-China Oil Exploration", Business World, Manila, 12 November 2003.
101. See "China and the Philippines For the First Time Jointly Explore South China Sea Resources Without Drilling and Exploitation", Jinghua Shibao (Beijing-China Times) (in Chinese), 4 September 2004, p. A02.
102. See "The Joint Communiqué of the Government of the People's Republic of China and the Government of the Republic of the Philippines", People's Daily (in Chinese), 4 September 2004, p. 3.
103. See "Ministry of Foreign Affairs: China Seriously Requests Vanuatu To Keep Its Promise on Taiwan", 18 November 2004, at http://www.people.com.cn/GB/shizheng/1027/2997844.html (accessed 19 November 2004).
104. See "China, Philippines and Vietnam Sign Agreement To Explore Oil in the South China Sea", Lianhe Zaobao, 15 March 2005, at http://www.zaobao.com/gj/yx501_150305.html (accessed 15 March 2005).
105. See Xie Ye, "Crude-Oil Quandary Causes Concern", China Daily, 24 February 2004.
106. For relevant details, see Zou Keyuan, "Sino-Vietnamese Fishery Agreement for the Gulf of Tonkin", (2002) 17 IJCML 1, 127-148
107. Zou Keyuan, "Sino-Japanese Joint Fishery Management in the East China Sea", (2003) 27 Marine Policy 2, 125-142.
108. Text is reprinted in Charney and Alexander (eds.), note 48 above, pp. 1238-1239.
109. Art. 7 of the 2000 Boundary Agreement. An unofficial English version of this Agreement is attached to Zou Keyuan, "Sino-Vietnamese Agreement on the Maritime Boundary Delimitation in the Gulf of Tonkin", (2005) 36 Ocean Development and International Law 13-24.
110. See Epsey Cooke Farrell, The Socialist Republic of Vietnam and the Law of the Sea: An Analysis of Vietnamese Behaviour within the Emerging International Oceans Regime (The Hague, Martinus Nijhoff, 1998), p. 251.
111. Baviera and Batongbacal, note 75 above, p. 3.
112. See "South China Sea Region", Country Analysis Briefs, September 2003, at http://www.eia.doe.gov/emeu/cabs/schina.html (accessed 4 October 2004).
113. Djalal, note 74 above, p. 180.
114. Hurng-yu Chen, note 46 above, p. 125.
115. See Wu Shicun, note 67 above, p. 76.
116. See People's Daily (in Chinese), 1 June 1998.
117. See "Taiwan", Country Analysis Briefs, at http://www.eia.doe.gov/emeu/cabs/taiwan.html (accessed 8 November 2004).
118. "ASEAN Declaration on the South China Sea", Manila, Philippines, 22 July 1992, at http://www.aseansec.org/5233.htm (accessed 27 October 2004).
119. "Recent Developments in the South China Sea", 18 March 1995, at http://www.aseansec.org/5232.htm (accessed 27 October 2004).
120. See Hurng-yu Chen, note 46 above, p. 125.
121. Baviera and Batongbacal, note 75 above, p. 4.
122. A moratorium for at least 50 years has been imposed within the Antarctic Treaty System through the 1991 Protocol on Environmental Protection on Mineral Resources Activities in Antarctica. For details, see Zou Keyuan, "Legal Thinking on the Comprehensive Protection for Antarctica", (1991) Peking University Law Journal (in Chinese) 4, 36-39 and 56.