Delimitation of The Continental Shelf in The East China Sea by H. Schulte Nordholt

DELIMITATION OF THE CONTINENTAL SHELF IN THE EAST CHINA SEA
by H. Schulte Nordholt*
1. BACKGROUND
China is one of the eighteen privileged states whose continental shelf extends
more than 200 miles beyond the base line from which the territorial sea is
measured.1 According to the Law of the Sea Convention, states have a right to a
continental shelf with its boundary positioned at a maximum width of 350 nautical
miles, measured from the base line. It is in China's interests to safeguard its conti-
nental shelf rights because the report drawn up in 1968 by the UN Economic Com-
mission for Asia and the Far East revealed that there were probably extremely rich
resources of oil beneath the continental shelf of the East China Sea and the Yellow
Sea.2 However, China is not the only state in that area to lay claim to the continen-
tal shelf of the East China Sea. Taiwan, South and North Korea and Japan have also
made claims on part of this area. The claims of the various states overlap and the
delimitation of the area is therefore necessary.
However, it is virtually out of the question for these five states to come to a
delimitation agreement because of the extremely complicated political situation
in the area.
A state exercises certain sovereign rights over the continental shelf and these
cannot be shared with a government which claims to be the only legitimate govern-
ment of the same state. For this reason China cannot negotiate either with Taiwan,
regarding the delimitation of the continental shelf, nor with South Korea, because
China considers the Government of North Korea to be the only legitimate Korean
Government.
The only state with which China can negotiate regarding the delimitation of the
continental shelf in the East China Sea is Japan, and this article is mainly concerned
with these two states. Taiwan is also dealt with, because this state instigated activi-
* H. Scholte Nordholt studied Chinese language and International Law at the University
of Leiden. He is currently working in the East Asia Division of the Ministry of Economic Af-
fairs.
1. According to B. Riister, Die Rechtsordnung des Festlandsockels (Berlin 1977) p. 182.
2. K.O. Emery et al., "Geograpliical Structure and some Water Characteristics of the East
China Sea", 2 Technical Bulletin, (1969) p. 39. The search for oil in the East China Sea and the
South China Sea, nearer to the Chinese coast, has up until now (March 1985) not been very suc-
cesful. China, however, also has other interests, e.g., political interests, to safeguard its con-
tinental shelf rights.
0028-2138/85/010123-38 $00.20/0
Martinus Nijhoff Publishers/The Hague
XXXII-NILR 1985, 123-160
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124 H. SCHULTE NORDHOLT NILR 1985
ties with regard to the continental shelf of the East China Sea in 1969-70, and
also because it was still considered by Japan to be the only legitimate Govern-
ment of China at that time. South Korea is referred to in passing, particularly with
regard to the treaty concluded by that state with Japan regarding the joint devel-
opment of the continental shelf between the two states. Finally, North Korea will
not be considered in this article. This state made only an indirect claim on the
continental shelf in the East China Sea in the form of protests against the South
Korean and Japanese treaty, and in addition, it is difficult to imagine how this state
would be able to implement its claims in the present situation because its coastline
does not border on the East China Sea at any point.3
The conclusion of an agreement between China and Japan is made more difficult
by a territorial dispute concerning eight tiny islets and rocks, situated on the edge
of the continental shelf in the East China Sea, viz., the Senkaku Islands - quite
apart from the political complications resulting from their relations with the
other states in the area. The solution of this dispute in favour of one of these coun-
tries could have enormous consequences for the delimitation of the continental
shelf. Another complicating natural factor which makes delimitation more difficult
is the presence of the Okinawa Trough, in the sense that it is not clear in law
whether this trough is the dividing line between the Ryukyu Islands and the conti-
nental shelf in the East China Sea (see Map No. I).
The purpose of the research reflected in this article is to evaluate the Chinese
and Japanese claims to the continental shelf in the East China Sea, and more in
general, their position regarding the delimitation of the continental shelf in the light
of international law. For this purpose an attempt will be made to determine the
current position of the law with regard to the delimitation of the continental shelf,
and the role played by islands in this question, taking into consideration Article 38
of the Statute of the ICJ.
In dealing with the Chinese and Japanese claims it is also necessary to examine
the claims of the two states regarding their sovereignty over the Senkaku Islands,
and these will be assessed in the light of international law.
1.1 The Convention on the Law of the Sea
Article 83.1 of the Convention on the Law of the Sea reads:
"The delimitation of the continental shelf between States with opposite or adja-
cent coasts shall be effected by agreement on the basis of international law, as re-
ferred to in Article 38 of the Statute of the International Court of Justice, in order
to achieve an equitable solution."
3. The protests date from 2 February 1974 and 7 June 1977. See Archiv der Gegenwart,
no. 18511 and no. 21062. North Korea did declare an exclusive economic zone on 21 June
1977 without specifying whether it considered this to be formally applicable from the coasts
of South Korea. For the English text, see "Daily Report. Asia & Pacific", Foreign Broadcast
Information Service, Vol. IV, no. 127 (1 July 1977), D.2.
NILR 1985 DELIMITATION OF CONTINENTAL SHELF 125
Article 38 of the Statute of the 1CJ indicates in hierarchical order which sources
should be taken into account in determining the law in relation to a particular mat-
ter. In order of precedence these are: treaties, customary law, generally recognised
principles, case law and doctrine. A striking aspect of Article 83.1 is that it refers
states to an article that, in its turn, refers states back to the Law of the Sea Con-
vention. According to Article 38 of the Statute, treaties should be the first source
to be consulted for determining the law. However, neither Article 83.1, nor any
other article in the Law of the Sea Convention, puts forward a specific criterion
which can be used for the delimitation of the continental shelf.
Justifiable criticism of the virtually meaningless text of Article 83.1 has come
from various quarters.4 Venezuela and Turkey did not sign the Law of the Sea
Convention, which does not allow any reservations, on account of this article
and other articles on delimitation.5 The International Court of Justice, in the
case concerning the continental shelf (Libya v. Tunisia) in 1982, came to the con-
clusion that the text of Article 83.1 does not give any indication to the interested
states of the specific criterion to arrive at an equitable delimitation (para. 50).6
The formulation of Article 83.1 in the draft convention of 1980 offers a firmer
guideline by referring to concepts used in bilateral treaties and in case law:
"The delimitation of the continental shelf between States with opposite or

adjacent coasts shall be effected by agreement in conformity with international
law. Such an agreement shall be in accordance with equitable principles, em-
ploying the median or equidistance line, where appropriate, and taking into
account all the circumstances prevailing in the area concerned."7
However, at the Law of the Sea Conference there was a great deal of disagree-
ment about the formulation of Article 83.1 between the protagonists of the
equidistance principle, on the one hand, and those of the "equitable principles
and relevant circumstances", on the ether. 8 Equidistance means that every
point on the delimitation line of the continental shelf is the same distance from
the nearest points of the base lines from which the territorial sea of the states con-
4. E.g., by B.H. Oxman in "The Third United Nations Conference on the Law of the Sea",
76 AJIL (1982) p. 15: "Still, one might have expected more than a text that says nothing of
significance while, worse still, trying to give a1 contrary impression by introducing unnecessary
language and avoiding recognized terminology associated with the jurisprudence and scholar-
ship on the subject."
5. K.R. Simmonds, United Nations Conference on the Law of the Sea 1982 (New York
1983), p. XXI.
6. "Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment of
24 February 1982": ICJ Rep. (1982) pp. 1-80.
7. "Draft Convention on the Law of the Sea", A/Conf. 62/W.P.10/Rev. 3, dating from 27
August 1980.
8. See, inter alia, the findings of the chairman of "Negotiating Group 7" (concerning the
delimitation of the territorial sea, the continental shelf and the exclusive economic zone) during
the seventh session (from 28 March to 19 April 1978, Official Records, Vol. X, pp. 6-10) and
the eighth session (report of 22 August 1979, Official Records, Vol. XII, p. 107). During the
seventh session twenty-two states supported the equidistance principle and twenty-nine states
supported equitable principles.
cerned is measured. On the basis of case law the application of "equitable princi-
ples" and taking into account the "relevant circumstances" means, above all,
though not exclusively, that:
- the fact that the continental shelf is the natural prolongation of the land terri-
tory should be recognised;
- there should be a measure of proportionality between the length of the coast-
line and the area of the continental shelf awarded;
- the configuration of the coastline should be taken into account.
Furthermore, it has come to mean - though this is a difficult point, and a mat-
ter of great controversy — that the law should not only be applied equitably, but
also that the result of this application should be equitable.
The protagonists of "equitable principles and relevant circumstances" at the
Law of the Sea Conference objected to the formulation of the draft convention
because it still described equidistance as the international norm,9 albeit in a
weakened form when compared to Article 6.1 of the 1958 Continental Shelf Con-
vention which reads:
"Where the same Continental Shelf is adjacent to the territories of two or more
States whose coasts are opposite each other the boundary of the continental
shelf appertaining to such States shall be determined by agreement between
them. In the absence of agreement, and unless another boundary law is justified
by special circumstances, the boundary is the median line, every point of which
is equidistant from the nearest points of the baselines from which the breadth of
the territorial sea of each State is measured. "
Despite the fact that in most bilateral treaties the equidistance principle is used
in one form or another, this practice is not reflected in the formulation of Article
83.1.
1.2 Bilateral treaties and case law
These two sources give considerably more indications about the content of the
law than the Convention on the Law of the Sea. Since 1942 more than fifty treaties
have been concluded. Thirty-nine of these were at least in part explicitly based on
the equidistance principle. These treaties involved thirty-five states.10 It is remark-
able that twenty-one of these states were not parties to the 1958 Continental Shelf
Convention and therefore had no obligation in international law to apply the equi-
distance principle. This practice reveals that states have a strong preference for the
equidistance principle. However, it does not show that the same states felt an obli-
9. Oxman, loc.cit., n. 4, p. 14.

10. Riister, op.cit., n. 1, pp. 400-401. It should be noted that his summary only goes up to
1977. However, see also the more recent conclusion of Robert W. Smith in "A Geographical
Primer to Maritime Boundary Making", Ocean Development & International Law (1982) p. 10:
"The equidistance line has been found to be acceptable in many negotiations; in some situa-
tions a multi-segmented line had been simplified, in other cases modifications have been made
to the method used to calculate an equidistance line".
gation in law to apply this practice. If this had been the case, the group of protago-
nists of the equidistance principle at the Law of the Sea Conference would have
been considerably larger.
In judicial decisions the equidistance principle has a lower status than it does in
bilateral treaties. In 1969 the International Court of Justice came to the decision in
the North Sea Continental Shelf cases n(The Netherlands v. West Germany and
Denmark v. West Germany) that no single delimitation rule is binding in all cir-
cumstances, after the court had shown at length that the equidistance principle
was not a rule of customary law.12 The court, which did not have a mandate
from the parties to determine the delimitation line itself, considered three elements
to be essential:
1) The duty to negotiate effectively;
2) the taking into account of equitable principles and relevant circumstances; and
3) the recognition that the legal concept of the continental shelf is based on the
geological concept and that it is a natural prolongation of the land territory.13
The relevant circumstances obviously differ from case to case, and according to
the court, the purpose of equity is to arrive at a correct balance of the relevant cir-
cumstances in question. In the North Sea Continental Shelf cases there were three
circumstances involved:
- the configuration of the coastlines of the parties;
- the geological structure and the natural resources of the continental shelf;
and
- the element of proportionality, taking into account existing delimitation treaties
of states in the area and any to be expected in the future (para. 101 (D)).
In the United Kingdom - France Continental Shelf Arbitration (1977), 14 the
equidistance principle was integrated in the whole body of the rules of law that
were to result in delimitation in accordance with equitable principles (para. 75).
The case between the UK and France, unlike the North Sea Continental Shelf cases,
concerned two states lying opposite each other. According to the tribunal, the
application of the equidistance principle in this sort of situation would "normally
effect a broadly equitable delimitation" (para. 95).
As the application of the principle of the natural prolongation in the case of two
states opposite each other with a continental shelf that runs from one coast to the
other is of hardly any practical guidance, a strong emphasis was placed in the
Anglo-French case on "relevant considerations of law and equity" (para. 194).
Apart from the principle of equidistance, the Tribunal considered the principle of
proportionality to be particularly important. This principle is intended to serve
as a means of assessing whether, and the extent to which the influence of geogra-
phical characteristics on the delimitation line is equitable or inequitable (para. 100).
11. ICJ Rep. (1969) from p. 4.

12. Para. 101(A) and (B).
13. Para. lOl(CAl).
14. 18 International Legal Materials (1979) pp. 397494.
128 H. SCHULTE NORDHOLT NILR1985
In the case between Libya and Tunisia (1982), the principle of natural prolonga-
tion was not considered by the court to contribute to the solution of the dispute in
question. In fact, the court even considered that in the majority of delimitation
disputes the principle does not indicate how far the continental shelf of one state
extends in comparison with the continental shelf of the other state.
In the same case little attention was paid to the principle of equidistance, which
resulted in appreciable criticism. The court determined that this principle did not
have a privileged status vis-d-vis other rules of law, nor was it necessary to apply it
as a "first step" (para. 110). However, the court did repeat the dicta put forward in
the North Sea continental shelf cases (para. 57), that the application of the princi-
ple of equidistance resulted in fewer problems in the case of states lying opposite
each other (para. 126). Because the court considered that the principles of natural
prolongation and equidistance were of little or no significance in the case between
Libya and Tunisia, the application of equitable principles became a question of
"primordial importance" (para. 72). The court indicated that the application of
equitable principles should lead to an equitable result: "It is, however, the result
which is predominant; the principles are subordinate to the goal" (para. 70). The
court emphasized that in this case equity was applied infra legem and not in the
sense of ex aequo et bono, to which the parties to a dispute (according to Article
38.2 of the Statute of the I d ) must explicitly agree.
However, in my view it has been remarked with some justification that in the
case between Libya and Tunisia the borderline between an ex aequo et bono deci-
sion and the application of equity infra legem is very vague.15 To an even greater
extent than in the case between the UK and France the decision of the ICJ in the
case between Libya and Tunisia was a compromise between the positions adopted
by the two parties. The factor of proportionality was again a striking feature of
this case. In the case between the UK and France proportionality was still applied
as a method of assessment after the delimitation line had been determined. In
the case between Libya and Tunisia it was used as a cause of law as such.16
1.3 Islands and the delimitation of the continental shelf
Article 121.3 of the Law of the Sea Convention reads:

"Rocks which cannot sustain human habitation or economic life of their own
shall have no exclusive economic zone or continental shelf."
15. See Douglas C. Hodsgon, "The Tunisian-Lybian Continental Shelf Case", 16 Case
Western Reserve Journal of International Law (1984) p. 36, and W. Wengler, "Der Internatio-
nale Gerichtshof und die Abgrenzung des Meerbodens im Mittelmeer", 35 Neue Juridische
Wochenschrift (1982) p. 1199.
16. On this question, see the critical comments by Jimenez de Arechaga in his "Separate
Opinion". He considers that proportionality may only be an ex post facto factor: ICJ Rep.
(1982) p. 124.
For Venezuela this was one of the articles which formed the reason why it did
not sign the convention.17 The UK proposed eliminating para. 3 of Article 121. 18
However controversial Article 121.3 may be, it is certainly a more accurate re-
flection of present international law than the relevant articles from the 1958 Con-
tinental Shelf Convention and the 1958 Territorial Sea Convention, according to
which islands have a right to their own continental shelf, provided they rise above
sea level at high tide.19
The bilateral treaties show that islands lying just off the coast, whether inhabited
or not, have "full effect" on determining the delimitation line of the continental
shelf.20 This is because, in accordance with Article 7 of the Law of the Sea Con-
vention, these islands are linked on the seaward side by straight base lines, and
because the territorial sea, and therefore the continental shelf, are measured from
these base lines.
According to bilateral treaty practice, larger islands, even if they are further off-
shore and therefore do not form part of the system of straight base lines, can also
have "full effect" on determining the delimitation line. Examples of this are the
Japanese island of Tsushima in the treaty between Japan and South Korea, and the
Finnish Aland Islands in the treaty between Finland and Sweden.21
If they are further offshore, islets and rocks do not influence the delimitation
line, unless these islets are very close to the delimitation line as measured from the
coast. For example, the delimitation line determined by the Italian-Yugoslav treaty
curves around the Yugoslavian islands of Pelagruz and Kajola, in favour of Yugo-
slavia.22
It is noticeable that case law attributes less influence to islands in determining
the delimitation line of the continental shelf than does bilateral treaty practice. In
the North Sea continental shelf cases reference is made in passing to the fact that
for states lying opposite each other, rocks and islets cannot influence the delimi-
tation line (para. 57).
In the United Kingdom-France continental shelf arbitration, the Channel Islands
were not awarded their own continental shelf, while the influence of the Scilly
Isles, lying South-west of the English coast, was limited to no more than a "half
effect". The Tribunal in this case considered that a greater influence of these groups
of islands would have an inequitable effect on the course of the delimitation line
(para. 100). In the case between Libya and Tunisia, the large island of Jerba —
17. See Simmonds, op.cit., p. XXI.

18. A/Conf. 62/L. 126 of 13 April 1982. The amendment was not put to a vote.
19. Art. 10 of the Territorial Sea Convention defines islands in this way, and this definition
also applies to Art. l(b) of the Continental Shelf Convention, which states that islands have a
right to their own continental shelf. For the texts of these conventions, see, inter alia, I. Brown-
lie, Basic Documents in International Law (Oxford 1972) pp. 77-115.
20. See N. Ely, "Seabed Boundaries between Coastal States: the effect to be given to Islets
as "Special Circumstances", 6 International Lawyer (1972) pp. 227-232 and Hodsgon, loc.cit.,
p. 29.
21. Kor the texts of both conventions, see B. Riister, Vertrdge und Dekhrationen fiber den
Festlandsockel (Continental Shelf) (Frankfurt 1975) pp. 160-173 and pp. 134-137.
22. Ibid., pp. 74-77.
twice the size of Malta - just off the coast of Tunisia, which has a sizeable
population, was given no effect at all. The Tunisian Kerkennah Islands - eleven
miles offshore and separated from the mainland by very shallow water - are also
inhabited and are altogether about the size of Malta. The court only awarded
a "half-effect" to these islands. The court did not put forward any arguments for
adopting this position, and this author is in full sympathy with the criticism that
has been levelled with regard to this point.23
1.4 Conclusion
Article 76.1 of the Law of the Sea Convention states that the continental shelf
is the natural prolongation of land territory. The text of this article was inspired
by the North Sea continental shelf cases. The majority of disputes and treaties
concerning the delimitation of the continental shelf show that the principle of
natural prolongation does not lend itself as a useful criterion for determining the
delimitation. This has been noted in case law, both in the case of states lying oppo-
site each other (United Kingdom-France continental shelf arbitration) and in
adjacent states (the case between Libya and Tunisia). In both cases the natural
prolongation of the land territory of the states involved concerned one and the
same continental shelf.
Increasingly, equitable principles mean not only that the existing rules of law
should be applied equitably, but also that the result of this application should be
equitable. A measure of the degree to which the result is equitable is the extent to
which the continental shelf awarded is proportional to the length of the coastlines
of the coastal states concerned. In the United Kingdom-France continental shelf
arbitration this principle of proportionality was still used as a criterion retrospecti-
vely, after the delimitation line had already been determined on other grounds.
In the case between Libya and Tunisia the principle of proportionality was one
of the factors which had to be taken into consideration in order to arrive at an
equitable delimitation.
In principle there is an infinite number of relevant circumstances which should
be taken into account, but in case law the proportionality factor seems to carry
more weight than the other circumstances. As a result, other circumstances, such as
the presence of islands and the application of the principle of equidistance, are
considered to be less relevant. In bilateral treaty practice a greater influence is
ascribed to islands than in case law. This practice is reflected fairly accurately in
Article 7 and Article 121.3 of the Law of the Sea Convention. As regards the
relevance ascribed to equidistance, state practice again differs from case law. In
fact, the relevance of equidistance is much greater in state practice. However, in
Article 83.1 of the Law of the Sea Convention, the reference to equidistance no
23. Hodsgon, loc.cit., p. 29 and the "Dissenting Opinion" by Judge Evensen, which states
that the disregard shown towards the islands of Jerba is in conflict with bilateral treaty practice,
the 1951 Fisheries Case and Art. 4.1 of the Territorial Sea Convention. For Evensen's opinion
regarding this point, see ICJ Rep. (1982) pp. 285-286.
longer appears, and the question arises to what extent the application of this
principle in practice is based on an opinio juris sive necessitatis.
2. THE CHINESE POSITION ON THE LAW OF THE SEA
According to a not too recent Chinese article, the classical law of the sea,
based on the principle of mare liberum, is a class related concept, and serves those
who stand to gain most from it: "The freedom of the High Seas, a celebrated work
by Grotius, the forefather of Bourgeois International Law, was in defence of the
Dutch Bourgeoisie at that time." 24
China was not a party to any of the four 1958 Conventions on the Law of the
Sea, though it did sign the most recent Convention. Essentially, China sees the
creation of this convention as the result of a political struggle, concerned with
safeguarding the sovereignty, security and protection of the natural resources of
small and medium-sized countries - those countries which are threatened by the
maritime hegemony of the United States and the Soviet Union.25
China has expressed its general satisfaction regarding the Law of the Sea Con-
vention. However, it has expressed regrets that, in accordance with Article 309,
it is not possible to make reservations. Amendments proposed by Turkey to
eliminate Article 309, and by Venezuela not to permit reservations except for
those regarding the three delimitation articles (Articles 15, 74 and 83), and the
article giving a further definition of islands (Article 121.3), were supported by
China.26
With regard to those aspects of the law of the sea which must necessarily be
dealt with for the purpose of this article, the position of China has evolved as fol-
lows:
2.1 The territorial sea
On 4 September 1958, China declared a territorial sea with a width of twelve

miles.27 The base lines from which the territorial sea was measured connected
the base points with straight lines. China has never published which base points
were actually used, but apparently, even the island of Tong Dao, sixty-nine
miles from the Chinese coast, is used as a base point.28 According to Article 4.1
24. Tiao Yue, "A preliminary appraisal of the Bourgeois concept of International Law",
Guoji Wenti Yanjiu (Studies in International Problems) of 3 July 1957. Translated in Union
Research Service, Vol. XVI, pp. 298-312. The quotation is on p. 303.
25. See, e.g., "Sea Law Convention Battle", Beijing Review, (27 December 1982) pp. 7-8
and the declaration of the Chinese delegate, Han Xu, during the final session in Montego Bay.
A/Conf. 62/P.V. 191, p. 11.
26. Declaration of the Chinese delegate, Shen Weiliang on 17 April 1982 during the session
in New York, (11th round). A/Conf.62/S.R.173, p. 4. The Turkish amendment (A/Conf.62/
L. 120) of 13 April 1982 was rejected after a vote was taken. China voted in favour. See
A/Conf. 62/S.R.176, pp. 6-8.
27. "Declaration Review on China's Territorial Sea", 28 Peking Review (1958) p. 21.
28. For a hypothetical representation of the Chinese base points and baselines, see Limits
of the Territorial Sea Convention, islands can be used as the base points of the
straight base lines, provided they are in the immediate vicinity of the coast. Ex-
ceptions to this rule are possible on the grounds of historically determined
economic interests.29 However, sixty-nine miles does seem to be stretching things a
bit far. At the same time the Jiongzhou Strait and the Bohai Bay were enclosed by
the straight base lines and thus gained the status of internal waters. The twelve mile
width and the fact that straight base lines had been drawn, led to immediate
protests from the UK and the United States.30 The United States argued that the
ILC had stated that a width of more than three miles did not have to be recognised
by other states, and furthermore, that the Chinese coast did not comply with the
conditions of Article 4.1 of the Convention on the Territorial Sea. The Chinese
reaction to these objections was rather detailed, using the followng legal argu-
ments: 31
"In principle every state may determine the width of its territorial sea, provided
this is reasonable."
China's twelve mile width was certainly reasonable on the grounds of economic
(fishing) and security interests. Moreover, twelve miles is not in conflict with
international law because in 1958 there were only twenty-one states which claimed
three miles. In the Fisheries case the ICJ considered that the drawing of straight
base lines was legitimate. It is significant that precisely the UK, the losing party in
the Fisheries case, contested the Chinese decision. The Bohai Bay belongs to the in-
ternal waters because the islands which lie in the mouth of the bay are nowhere more
than twenty-two miles apart at any point.32 Even if these islands are not taken into
consideration, the width of the mouth (forty-five miles) is still less than that of the
Hudson Bay (fifty miles) or Peter the Great Bay (one hundred and twenty miles).
Both of these bays are considered to be "historic bays." 33
The width of the territorial sea, which was still a point of dispute during the
1950s, has now been determined in the Law of the Sea Convention in favour of the
Chinese position: every coastal state may determine its own territorial sea, with a
maximum width of twelve miles (Article 3). China pointed to one important short-
in the Seas, no. 43, People's Republic of China, Office of the Geographer, US Department of
State, 1972.
29. Art. 4.4 of the 1958 Territorial Sea Convention. Art. 7.4 of the Law of the Sea Con-
vention has adopted this provision.
30. For the text of the American protest, see American Foreign Policy: Current
Documents 1958 (US Dept. of State, Washington 1968) p. 1198.
31. See Fu Zhu, Guanyu woguo de linghai wenti (On the question of the territorial sea of
our nation) (Peking 1959) pp. 1-26. Translated in J.A. Cohen & H. Chiu People's China and
International Law. A Documentary Study, 2 Vols. (Baltimore 1974) pp. 470-487.
32. Art. 7.4 of the 1958 Territorial Sea Convention states that the closing line at the
natural entrance of a bay may be a maximum of 24 miles.
33. According to Art. 7.6 of the same convention, the rule that stipulates a maximum
width of 24 miles does not apply in these cases. Arts. 7.4 and 7.6 can be found in the Law of
the Sea Convention in arts. 10.4 and 10.6.
coming of the articles in the Law of the Sea Convention dealing with the territorial
sea, viz., the fact that there is no provision obliging warships to request permission
for innocent passage through the territorial sea of another state. During the last
session of the Conference on the Law of the Sea the Chinese delegate actually
stated explicitly that this omission "did not prejudice the right of the coastal state
to require prior authorisation or notification for the passage of foreign warships
through the territorial sea in accordance with its laws and regulations".34
2.2 The exclusive economic zone
On 20 November 1970 China expressed its full support for the 200 mile claims
of Latin American countries for the first time.35 It reiterated this support many
times in the years that followed. Quite apart from ideological motives, this sup-
port is understandable because China, like the Latin American countries, has ex-
tremely rich fishing grounds off its coast. It is for this reason that a number of
Chinese articles and declarations have stated that 80% of the catch of all sea
fishing worldwide is from shallow coastal waters, and that the two super powers,
i.e., the Soviet Union and the United States, as well as another "distant water
fishing power", i.e., Japan, represent 70-80% of this catch.36 The size of the Chi-
nese navy and the long distance fishing fleet is not very large, so that unlike the
three countries mentioned above, it is in China's interests to have as wide as
possible national maritime jurisdiction, which limits foreign economic and mili-
tary activities to the maximum extent. Before 1973 China did not seem to make
a distinction between the territorial sea and the exclusive economic zone. In
March 1973 it made this distinction, though as yet without any juridical pre-
cision:37
"Owing to the fact that the breadth of the territorial seas varies with different
countries, we consider that it is in the exercise of the sovereignty of a state to
reasonably define, in accordance with their specific conditions and the need
for the development of their national economies, the scope of their juris-
diction over economic resources beyond their territorial seas, using the
names of exclusive economic zone, continental shelf, patrimonial sea or
fishing zone, etc."
In a "Chinese Working Paper on Sea Area within the Limits of National

Jurisdiction", drawn up for the Law of the Sea Conference and dated 16 July 1973,
a distinction is made between the exclusive economic zone and the continental
34. Shen Weiliang, A/Conf. 62/S.R.182, p. 33.

35. "Latin American countries Ranged against US Imperialist Aggression to Defend their
Territorial Sea Rights", 48 Peking Review (1970) pp. 8-10.
36. E.g., the declaration by the Chinese delegate in the Sea Bed Committee on 21 July
1972, A/AC.138/SC.II/S.R. 35, p. 16.
37. Declaration by Zhuang Yan in the Sea Bed Committee on 20 March 1973, A/AC.138/
SC.II/S.R. 55, pp. 81-86. Also in the 13 Peking Review (1973) pp. 9-12. The quotation is on
P. 11-
shelf.38 For the first time China adopted the position that the maximum width of
the Exclusive Economic Zone should be 200 nautical miles.
With regard to the Exclusive Economic Zone regime as laid down in the Law of
the Sea Convention, China did not make any objections, except with regard to the
article concerning the delimitation of the Exclusive Economic Zone. Its objections
against this article are the same as those against the delimitation article concerning
the Continental Shelf, which will be dealt with below.
It should also be mentioned that despite its fervent support for a 200 mile zone,
China has not yet proclaimed one itself. This could be related to the fact that if
China were to proclaim an Exclusive Economic Zone, Japan might react with a
similar move in the East China Sea, and that the delimitation of an exclusive eco-
nomic zone in that area (a principle based on distance) could produce a more dis-
advantageous result for China than the delimitation of a continental shelf (a prin-
ciple based on natural prolongation).
2.3 The continental shelf
In December 1970 China declared that it had jurisdiction over the natural re-
sources of the sea bed and the subsoil of the shallow waters around the Chinese
islands and near the Chinese coast.39 The term "continental shelf" was first used
officially in 1972.40 The definition given in the Chinese Working Paper men-
tioned above is interesting, and reads:
"(1) By virtue of the principle that the continental shelf is the natural pro-
longation of the continental territory, a coastal state may reasonably define,
according to its specific geographical conditions, the limits of the continental
shelf under its exclusive jurisdiction beyond its territorial sea or economic zone.
The maximum limits of such a continental shelf may be determined among
States through consultations."
This is interesting not only because the criterion of natural prolongation is used,
but also because the term "the prolongation of the continental territory" is used.
This may be correct geographically, but it is not correct juridically, because other-
wise island states such as Japan would be deprived of a continental shelf. One can
imagine that this is precisely the reason why the authors of the "Working Paper"
refer to "continental territory".
China considered the provision of the maximum limit of the continental shelf
of 350 miles in the 1980 Draft Convention to be reasonable at the time,41 though
38. A/AC. 138/SC. II/L.34.

39. Mei ri fandongpai yinmou liieduo zhong chao haidi ziyuan (Reactionary American
and Japanese cliques conspire to plunder the natural resources of the sea bed of China and
Korea): Renmin Ribao (People's Daily), (4 December 1970) p. 5.
40. In Renmin Ribao (12 December 1972) p. 6.
41. Declaration of the Chinese delegate on 8 September 1980 during the ninth session
of the third Law of the Sea Conference. A/Conf. 62/S.R. 135, p. 17.
N I L R 1985 DELIMITATION OF CONTINENTAL SHELF 135
it considered a more flexible definition to be desirable. Later, during the final

session of the Law of the Sea Conference, the Chinese delegate described the de-
finition of the continental shelf - which was no different from the Draft Conven-
tion - as one of the shortcomings of the Law of the Sea Convention.42
3. THE JAPANESE POSITION WITH REGARD TO THE LAW OF THE

SEA
Japan is a party to two of the four 1958 Conventions on the Law of the Sea,
viz., the Territorial Sea Convention and the High Seas Convention. Japanese inter-
ests are almost the exact opposite to those of China. Of all Japanese oil imports,
70% come from the Middle East and are transported through the Straits of Ma-
lacca.43 It is therefore vitally important for Japan that the right to innocent
passage through straits used for international navigation is retained, and that
straits should therefore not be under the exclusive national jurisdiction of the
coastal state. During the mid 1970s almost half of the Japanese fish catch took
place within the 200 mile zone of other states.44 In order to safeguard its fishing
interests as far as possible, Japan has put forward a number of different proposals
in the Sea-Bed Committee (the organ that prepared the Third Conference on the
Law of the Sea) and at the Conference itself.
These proposals were concerned with safeguarding the rights of those countries
which had traditionally fished within the 200 mile zone of other coastal states.
However, by its own actions, Japan has clearly shown that it accepts the new
legal developments. On 25 May 1977, the Japanese Parliament passed two laws:
the Act regarding the Territorial Sea, and the Act concerning provisional measures
relating to the fishery zone.45
With the first law Japan extended its territorial sea from 3 to 12 miles, excepting
five straits which were considered to be straits used for international navigation.
The second law set down a fishery zone of 200 miles, except in the area of the
East China Sea and in parts of the area of the Sea of Japan. The reason for this was
that Japan expected reprisals against its own fishermen fishing within the hypo-
thetical 200 mile zone offshore of China and South Korea. It was for this reason
that fishermen from these countries were even permitted to fish without restriction
in areas where Japan had in fact imposed the 200 mile limit.
42. Declaration by Han Xu. A/Conf.62/P.V. 191, p. 12.

43. The exact figures for 1982 are: Middle East: 70.4%; Asia: 23.7%; and other parts
of the world: 5.9%. In 1973 this ratio was very different: Middle East: 85.2%; Asia: 13.2%;
and other parts of the world: 1.6%. See "Energy Policies and Programmes of I.E.A. Countries",
IEA 1983 Review (Paris 1984).
44. This ratio has now changed. Of the 11 million tonnes caught in 1983, only 2 million
tonnes were caught within the 200 mile zone of other states. See G. Gregory, "Japan and the
Law of the Sea: Uncertainties of the New Order", 30 Australian Outlook (1976) p. 49, and the
Far Eastern Economic Review (2 August 1984) p. 36.
45. Respectively Acts no. 31 and no. 32. Included in the UN publication National Legis-
lation and Treaties Relating to the Law of the Sea, St./Leg./Ser.B/19, pp. 56-62 and pp. 215-
228.
With regard to the outer limit of the continental shelf, Japan also adopted a dif-
ferent position from China at the Law of the Sea Conference. Japan considered
that the criteria of depth and natural prolongation led to inequitable results
because it meant that the international area was diminished. For this reason Japan
was in favour of a maximum width of 200 miles.46 In fact, Japan had implicitly
claimed a continental shelf in 1950 by passing a Mining Act which applied to
offshore areas up to 200 metres in depth.47
Japan signed the new Law of the Sea Convention, though it found some pro-
visions difficult to accept, including the deep sea mining regime, which imposes
the duty to transfer technology. Japan considers, however, that the Convention will
have a stabilising effect and will therefore serve the long-term interests of Japan and
other states.48
4. THE DISPUTE BETWEEN CHINA AND JAPAN OVER THE SOVER-

EIGNTY AND DELIMITATION OF THE CONTINENTAL SHELF IN
THE EAST CHINA SEA
4.1 The geological and geographical situation
Fairbridge has given a compact geological description of the continental shelf in

the East China Sea:49
"The East China Sea floor is divided into two contrasting provinces: the conti-
nental shelf with a shelf break at 150-166 m and a broad trough extending from
Formosa to Kyushu along the inner side of the Rykuku island arc. For easy iden-
tification we suggest it to be referred to as the Okinawa Trough, to distinguish
it from the trench along the outer edge of the Ryukyus (Nansei Shoto), the
Ryukyu or Nansei Shoto trench (which belong in the Philippine Sea, q.v.). The
Okinawa Trough has a large area over 1000 m and a maximum depth of
2717 m. The shelf is part of one of the largest shelves in the world, extending
from the Gulf of Pohai and the Yellow Sea . . . and south through the Formosa
Strait to the South China Sea shelf and the Gulf of Tonkin."
It should be added that the Okinawa Trough is situated at an average of 350

miles from the mainland of China, and that it has an average width of 100 miles.
In the literature it is generally agreed that the Ryukyu Islands are cut off from the
continental shelf in the East China Sea by the Okinawa Trough.so
46. See "Japan: Draft Articles on the Continental Shelf", A/Conf.62/C./L.31/Rev.31 of

16 August 1974 and the declaration of the Japanese delegate at the seventh session. A/Conf.
62/S.R. 103 in Official Records Vol. 10, pp. 67-68.
47. "Mining Law no. 289", dating from 1950. Discussed in S. Oda, "The Delimitation of
the Continental Shelf in South East Asia and the Far East", 1 Ocean Management (1973)
p. 344.
48. Declaration of the Japanese delegate, Nakagawa, during the eleventh session in New
York in April 1982. A/Conf.62/S.R. 169, pp. 11-13.
49. R.W. Fairbridge, ed., The Encyclopedia of Oceanography (New York 1966) p. 239.
50. C.H. Park, "Continental Shelf Issues in the Yellow Sea and the East China Sea", Law
of the Sea Institute, University of Rhode Island, Occasional Paper no. 15, (September 1972),
From a juridical point of view, the situation is complicated by the presence of

two groups of small islands: the Japanese Danjo Gunto and the Senkaku Islands
which are disputed by China and Japan (see Map No. I). These two groups of islands
are situated on the continental shelf in the East China Sea. The Senkaku Islands,
which are the more important for the purpose of this article, consist of eight small,
uninhabited though not uninhabitable islets. The largest islet is less than a square
mile in area. They are situated 120 miles northeast of Taiwan and 100 miles north
of Ishigaki, the extreme southwest island of the Ryukyu Archipelago.
4.2 The first phase: the dispute between Taiwan and Japan
In October and November 1968, extensive geological surveys took place in the
Yellow Sea and in the East China Sea under the auspices of the United Nations
Economic Commission for Asia and the Far East, to ascertain whether oil re-
sources were present. The report on this survey stated, inter alia:
"A high probability exists that the continental shelf between Taiwan and Japan
may be one of the most prolific oil reservoirs in the world."
The immediate result of this report was that the three states in the area most
deficient in oil resources — Taiwan, South Korea and Japan — passed laws claiming
unilaterally so-called "mining blocks".51
Taiwan in particular was extremely active in its attempts to safeguard its inter-
ests. On 17 July 1969 the Executive Yuan declared that Taiwan had sovereign
rights over the natural resources of the sea-bed and subsoil adjacent to its coast and
outside the territorial sea. In the summer of 1970 the National Oil Company of
Taiwan signed four concession contracts with foreign oil companies.52 The four
blocks in which these companies were to operate comprised a total surface area of
180,000 km2 and were bordered on the seaward side by the 200 m depth line. On
p. 2.; G. Feulnei, "Delimitation of Continental Shelf Jurisdiction between States: The Effect
of Physical Irregularities in the Natural Continental Shelf", 17:1 Virginia Journal of Inter-
national law (1976) p. 102; L.F.E. Goldie, "The International Court of Justice's "Natural
Prolongation" and the Continental Shelf Problem of Islands", 4 NYIL (1973) pp. 252-254.
Also see the E.S.C.A.P. report, supra n. 2, p. 35.
51. The Korean legislation concerned the "Submarine Mineral Resources Development
Law" (Code. no. 2184) of 1 January 1970 and the Presidential Decree no. 5020 of 30 May
1970. For the English text of the act, see "The Law for the Develop^?' • Submarine Mineral
Resources" (Ministry of Commerce-Industry, Seoul 1971). The laiwanese act was the "Act on
the Exploration and Exploitation of Oil in the Sea Area", passed on 25 August 1970 and
entered into force on 3 September 1970. The act is included in the Zhonghua Minguo Xian-
xing Fagui Leibian, Liushi Nian Shubian (Collection of current laws and decrees of *he Repu-
blic of China) (1971) p. 928.
The Japanese blocks were adopted in accordance with the "Mining Law" of 1950, see supra
n.47.
52. The contracts were concluded with Amoco, Gulf, Oceanic Exploration and Clinton
respectively on 11 July, 12 July, 13 August and 24 September 1970. See C.H. Park, "Oil
under Troubled Waters: The Northeast Asia Sea-Bed Controversy", 14 Harvard International
Law Journal (1973) p. 224.
3 September 1970 Taiwan passed the "Act on the Exploration and Exploitation of
Oil in the Sea Area" to regulate the activities of the concessionaries.53 In addition,
five so-called "Reserved Offshore Petroleum Areas" were designated in pursuance
of this law on 15 October 1970. These five areas ran from the coast of the Chinese
mainland to the 200 m depth line (see Map No. II). On 14 October 1970 Taiwan
filed the documents embodying its ratification of the Continental Shelf Convention
with the Secretary-General of the United Nations, and thus became the forty-third
party to the Convention.54 Taiwan added two reservations:
"With regard to the determination of the boundary of the continental shelf as

provided in paragraphs 1 and 2 of Article 6 of the Convention, the Government
of the Republic of China considers:
(1) that the boundary of the continental shelf appertaining to two or more
States whose coasts are adjacent to and/or opposite each other shall be deter-
mined in accordance with the principle of the natural prolongation of their land
territories; and
(2) that in determining the boundary of the continental shelf of the Republic of
China, exposed rocks and islets shall not be taken into account.
It is clear that the second reservation refers to the Senkaku Islands. Even if
Japan were to decide the territorial dispute to its own advantage, the Senkaku
Islands would still not have the right to their own continental shelf, according to
the point of view of Taiwan.
Meanwhile, an open dispute had arisen over the Senkaku Islands because the
concession granted to Gulf Oil by Taiwan on 12 July 1970 covered the continental
shelf around these islands. A protest against this contract was submitted by the
Japanese Minister of Foreign Affairs, Mr. Aichi, on 18 July 197O.ss In the follow-
ing months he repeated a number of times that there was no discussion possible
about the sovereignty of the Senkaku Islands, but that Japan was prepared to nego-
tiate with regard to the delimitation of the continental shelf .S6
The sovereignty over the Senkaku Islands was hotly disputed by the two coun-
tries, and many papers were published to prove, with arguments of international
law and other arguments, that the islands were either Chinese or Japanese. In the
United States particularly many protest groups emerged consisting of Chinese
expatriates, with names like the "Concerned Chinese Association at Indiana Uni-
versity".57 However, there was no real confrontation between the two countries
53. See supra, n. 51.

54. 10 International Legal Materials (1971) p. 452.
55. T. Okuhara, "The Territorial Sovereignty over the Senkaku Islands and Problems of
the surrounding Continental Shelf, 15 JapaneseAnnual ofInternational Law (1971) p. 103.
56. On 10 September 1970 before the Committee for Foreign Affairs of the Japanese
House of Representatives, on 12 September 1970 tor the "Special Committee on Okinawa
and the Northern Territories" of the Japanese House of Representatives, and on 11 October
1970 in a speech on Okinawa. See "Japanese Practise of International Law: Territory - Legal
Status of Senkaku Islands", 19 Japanese Annual of International Law (1975) pp. 117-119
and p. 123.
57. Park,loc.cit.,n. 50, p. 40.
except for an incident on 2 September 1970 when a group of journalists from the
China Times planted a nationalist flag on the island of Uotsurijima, one of the Sen-
kaku Islands, and the Ryukyu police removed this flag and then expelled the jour-
nalists.54
Negotiations such as those proposed by Japan concerning the delimitation of
the continental shelf, started between Japan and Taiwan on 23 October 1970, but
were completely inconclusive. Dissatisfied with this state of affairs, business circles
in Taiwan, South Korea and Japan came to an agreement to co-operate in joint
development, pending an agreement between governments. For this purpose a so-
called "liaison committee" was set up by three non-governmental parties in Seoul
on 12 November 1970. The aim of this committee was to bring about the joint
development of the continental shelf by means of a joint venture.59
However, no exploitation actually took place because China broke its long
silence on 4 December 1970 to condemn the activities of the liaison committee in
a sharp protest, as an infringement of its sovereignty.60 Japan, which was also en-
gaged in preliminary discussions with Taiwan at a governmental level concerning the
exploitation in the Strait of Taiwan and around the Senkaku Islands, postponed
these discussions. At the beginning of April the Government of the United States
declared that it was "non-advisable" for American oil companies to be involved in
exploration activities in the disputed continental shelf, and that the United States
would not be able to intervene if their vessels were to be seized by China. The result
was that all the American oil companies put a temporary halt to their exploration,
but obliged by the conditions of their contracts, started exploration activities again
at the end of the summer of 1971.61
4.3 The second phase: the dispute between China and Japan
While Taiwan, as is evident from its actions, had clearly decided in favour of a
tacit compromise, or at any rate for shelving the conflict, China opted for confron-
tation. An additional factor which aggravated China was the so-called Okinawa Re-
version Treaty between Japan and the United States.62 According to Article 3 of
the 1951 Peace Treaty of San Francisco, 63 the United States acquired the right to
administer the "Nansei Shoto", i.e., the islands south of 29° latitude, including the
Ryukyu Islands. On 17 June 1971 the Okinawa Reversion Treaty was signed, with
an agreement that complete sovereignty would revert to Japan from 15 May 1972.
Because Japan exercised de facto sovereignty over the Senkaku Islands when the
United States occupied the Ryukyu Islands in 1945, and because the Senkaku and
58. See V.H. Li, "The Tiao-yu Tai Dispute", XI Stanford Journal of International Studies,
(1975) p. 146. The incident is also mentioned in supra n. 56, p. 118.
59. Park, loc.cit., n. 50, pp. 20-22.
60. In the article in Renmin Ribao, ibid in n. 39.
61. Park, loc.cit., n. 50, pp. 23-26.
62. See United Nations Treaty Series, Vol. 841, p. 249 for the text of this treaty.
63. See United Nations Treaty Series, Vol. 136, p. 45 for the text of this treaty.
the Ryukyu Islands formed a single administrative unit, the United States took over
this unit when it began its administration.
In September 1970 the United States declared that the term "Nansei Shoto",
as used in Article 3 of the treaty of San Francisco, included the Senkaku Islands.64
However, it also clearly stated that neither the administration of the islands by the
United States, nor its reverting to Japan, could have any influence on the claims of
the parties to the Senkaku Islands.65
However, because Japan considered that there could be no question but that
these islands were Japanese and found this to be self-evident, as had been demon-
strated by the statements of Mr. Aichi, it was clear that the islands would revert to
Japan de facto when the Okinawa Reversion Treaty entered into force.
China reacted strongly against this. Apart from the usual channels used for ex-
pressing dissatisfaction, the two countries also violently disagreed in the Sea-Bed
Committee. When the Japanese delegate stated that the Sea-Bed Committee was
not the proper forum for a discussion of a territorial dispute, the Chinese delegate
replied that in order to arrive at an equitable regime of the new law of the sea, it
was essential to combat aggression. The annexation of the Senkaku Islands by
Japan was considered to be an act of aggression. The Japanese "militarists" were
even said to be harbouring plans for the annexation of Taiwan.66
It is a striking fact that since the normalisation of the relationship between the
two countries in September 1972, the dispute has barely been paid any attention
by China.67
During the visit of the Japanese Prime Minister, Mr. Tanaka, to Peking during the
same month, Zhou Enlai waived aside Tanaka's request to discuss the matter.
When Deng Xiaoping visited Tokyo in October 1978 he is reputed to have
made the following remark regarding the dispute:68
64. "United States State Department Press Release" of 10 September 1970. For a dis-
cussion of the problems regarding the Okinawa Reversion Treaty, see Park, loc.cit., n. 50,
pp. 40-42, Li, loc.cit., n. 58, pp. 150-151, and T. Cheng, "The Sino-Japanese Dispute over the
Tiao-yii Tai (Senkaku Islands) and the Law of Territorial Acquisition", 14:2 Virginia Journal of
International Law (1974) p. 221.
65. During hearings before the Committee on Foreign Relations of the American Senate
of 27-29October 1970. (In Park, loc.cit., n. 50, p. 42 and p. 61.)
66. See' A/A.C./S.R.72 of 3 March 1972 and A/A.Ci/S.R. 73 of 10 March 1972 respecti-
vely on pp. 21-22 and pp. 33-34.
67. The only exception to this is a rather bizarre incident which took place in April
1978. In that month a Chinese fishing fleet of more that one hundred ships sailed into the
territorial waters of the Senkaku Islands, bearing banners and shouting slogans that the islands
were Chinese. China later declared that this protest had not been set up by the Government.
If it had been set up by the Government, it was possibly intended to express the Chinese dis-
satisfaction with the painfully slow Chinese/Japanese negotiations about a friendship treaty.
See "An 111 Wind from the Senkakus" , Far Eastern Economic Review (28 April 1978).
68. Sankei Shimbun, 26 October 1978. Quoted in C.H. Park, China and Maritime Juris-
diction: Some Boundary Issues", 22 German Yearbook of International Law (1979) p. 129.
Zhou Enlai's reaction is mentioned in H.G. Hinton, "The China Sea: The American Stake in its
Future", Agenda Paper of the National Strategy Information Centre, (New Brunswick 1980)
p. 5.
"The present generation is not wise enough to settle such a difficult issue. It
would be a good thing to count on the wisdom of the following generation to
settle it."
4.3.1 The dispute between China and Japan with regard to the treaty between
Japan and South Korea on joint development
As Map II shows, the claims of Japan and South Korea overlapped to a large
extent. The extreme limits of the Korean block no. 7, over 200 miles from the
nearest Korean territory, was justified by an appeal to the principle of natural
prolongation. From the point of view of Korea, the boundary was formed by the
Okinawa Trough. Japan relied on the equidistance principle as it had done vis-d-vis
China. Negotiations for a delimitation treaty started in November 1970 but were
totally unsuccessful, and in May 1972 Japan proposed to submit the dispute to
international arbitration, or possibly to the ICJ. South Korea was not enthusiastic
about the proposal. In September 1972 the countries agreed to keep their legal
claims in abeyance and to work on an agreement for joint development. This
resulted in the signing of two treaties:
(a) The Agreement between Japan and the Republic of Korea Concerning the Esta-
blishment of a Boundary in the Northern Part of the Continental Shelf Adjacent to
the Two Countries; and
(b) the Agreement Between Japan and the Republic of Korea Concerning Joint
Development of the Southern Part of the Continental Shelf Adjacent to the Two
Countries. (See Map No. III.)69
It took no less than four and a half years before the second of these treaties was
ratified by Japan.™
One of the reasons was that Japan felt it had granted too many concessions, as the
zone lies almost entirely within the 200 mile zone off the Japanese coast, and be-
cause it became increasingly clear during the 1970s that states certainly did not
act contrary to international law by proclaiming an exclusive economic zone.71
After the entry into force of the treaty on 22 June 1978, the implementation
committee became operative in accordance with Article 24. This committee was
responsible for allocating zones, levying payments of royalties and other matters
which were not dealt with in the treaty. On 19 May 1979 the committee had dealt
with all these matters, but drilling could not commence until May 1980 because the
Japanese and Korean fishing interests demanded a clear procedure in the event of
69. For the texts of the treaties, see B. Ruster, op.cit., n. 21, pp. 160-162 and pp. 162-173.
70. The ratification of the treaty by the Japanese Parliament took place on 12 May 1977.
See Archiv der Gegenwart, no. 20977. The exchange of the ratification documents and the
entry into force of the treaty took place in June 1978. See "Japan-R.O.K. Shelf Pact Ratified,
Effective", Japan Times Weekly, (1 July 1978).
71. For this opinion, see "Oil Pact Delay Upsets Seoul", Far Eastern Economic Review,
(13 May 1977) and Park loccit. n. 68. p. 135.
damage. The drillings, which commenced in May 1980, appear not yet to have pro-
duced any results.72
Since the treaty was signed, China has protested on a number of occasions.73
In summary the following arguments were put forward: "The treaty is seen as an
infringement of Chinese sovereignty. The continental shelf is the natural pro-
longation of the continental land mass. According to China the equidistance prin-
ciple is not a recognised principle in international law. Delimitation should be
established through mutual consultation and in agreement between the parties".
With regard to this, South Korea cannot be accused of a lack of goodwill, because it
has already made a number of offers to negotiate with China.74
China did not take up these offers — nor could it do so — because it considers
the Government of North Korea to be the only legitimate Government of Korea. It
does not seem as though this dispute will be settled in the immediate future. The
treaty between Japan and South Korea remains in force for fifty years. Obviously
the two parties could agree to alter or terminate the treaty and attempt to involve
China in the joint development. However, with the political situation being what it
is, it is difficult to imagine China being prepared to co-operate in this attempt.
5. THE C LAIMS OF THE PARTIES IN INTERNATIONAL LAW
5.1 The sovereignty over the Senkaku Islands
Both parties have published a large number of documents to show that the Sen-
kaku Islands are indisputably Chinese or Japanese respectively.75 In this dispute
72. See "South Korea poised to drill", Far Eastern Economic Review, (14 September 1979
and 9 April 1981).
73. See Wo waijiaobu fayanren fabiao shenming("Declaration made by the spokesman
for Foreign Affairs"), Renmin Ribao, (5 February 1974). Wo guo dalujia zhuquan bu rong
qinfan ("The sovereignty of our nation over the continental shelf will tolerate no infringe-
ments"), Renmin Ribao, (14 June 1977). Zhonghua renmin gongheguo waijiaobu shenming,
qianglie kangyi riben zhengfu qinfan woguo zhuquan ("Declaration of the Ministry of Foreign
Affairs of the People's Republic of China, strongly protest against the infringement of the Japa-
nese Government on the sovereignty of oui nation"), Renmin Ribao, (27 May 1978), and Jiu
riben, nanchao kaifa donghai dalujia qinfan wo zhuquan wenti wo guo zhengfu fabiao sheng
("Declaration of our Government regarding the problem of Japanese/South Korean exploita-
tion of the continental shelf in the East China Sea and the infringement on our sovereignty"),
Renmin Ribao, (8 May 1980).
74. Viz., on 20 March 1973, i.e., before the treaty was signed. The reason was a Chinese
protest against drilling by an American oil company, with the permission of South Korea, in
the continental shelf of the East China Sea. See Archiv der Gegenwart, no. 17746. South
Korea made another offer on 6 February 1974. Archiv der Gegenwart, no. 18511.
75. For the Chinese declarations see Jue bu rongxu mei ri fandongpai liieduo woguo
haidi ziyuan ("We will absolutely not tolerate reactionary Japanese and American cliques
plundering the natural resources of the sea bed of our nation"), Renmin Ribao (29 December
1970). Zhongguo lingtu zhuquan bu rong qinfan ("China's territorial sovereignty cannot tole-
rate any infringement"), Renmin Ribao, (1 May 1971). "Statement of the Ministry of Foreign
Affairs of the People's Republic of China", 1 Peking Review (1972) p. 12, and Huang Hua's
"Letter to UN Secretary General and President of the Security Council", 21 Peking Review
(1972) p. 15. For the Taiwanese declarations and discussions, Lifayuan Gongbao (Minutes of
the Legislative Yuan) of 26 and 30 September and 7 and 10 October 1970. Diaoyu Tai wenti
ziliao huibian (Compilation of material regarding the Diaoyu Tai problem)(Taipei 1971). The ming-
China and Taiwan can be considered as one party on the basis of their identical
interests. Although China considers the 1951 San Francisco Peace Treaty and the
1952 Peace Treaty between Japan and Taiwan to be invalid, 76 according to the
Sino-Japanese communique of September 1972,77 it does consider Article 8 of the
Potsdam Proclamation to be implicitly legitimate. This Article reads:
"The terms of the Cairo Declaration shall be carried out and Japanese sovereign-
ty shall be limited to the islands of Honshu, Hokkaido, Kyushu, Shikoku and
such minor islands as we determine".
The relevant passage in the Cairo Declaration reads: "It is their (i.e., the United
States, the UK and the Republic of China) purpose that Japan shall be stripped of
all islands in the Pacific which she has seized or occupied since the beginning of
the First World War in 1914, and that all the territories Japan has stolen from the
Chinese, such as Manchuria, Formosa, and the Pescadores, shall be restored to the
Republic of China. Japan will also be expelled from all other territories which she
has taken by violence or greed".
Article 2 of the San Francisco Peace Treaty and Article 2 of the Peace Treaty
between Taiwan and Japan specify the territories to be returned by Japan. Both
mention Formosa and the Pescadores (but not the Senkaku Islands).
In other words, China is in agreement with the content of these two Articles.
5.1.1 Chinese claims™
The Chinese claims can be divided into:

(a) historical claims; and
(b) claims based on treaties.
pao no. 75 of March 1972 and no. 78 of June 1972 respectively, pp. 2-16 and pp. 53-64. For
the Japanese declarations and discussions, "The Foreign Ministry's view concerning the right
of ownership over the Senkaku Islands", United States Embassy, Daily Summary of Japanese
Press, 8 March 1972, pp. 15-16. Also in Cohen & Chiu, op.cit. n. 31, pp. 351-352. Also Oku-
hara, loc.cit., n. 55 and "Japanese practice of International Law", supra n. 56.
76. For this view, see, inter alia, "Japanese People Demand Complete Return of Okinawa"
21 Peking Review (1972) p. 14.
77. See "Joint Statement of the Government of the People's Republic of China and the Go-
vernment of Japan" of 29 September 1972,40 Peking Review (1972), pp. 12-13. Article 3 reads:
"The Government of the People's Republic of China reaffirms that Taiwan is an inalienable part
of the territory of the People's Republic of China. The Government of Japan fully understands
and respects this stand of the Government of China and adheres to its stand of complying with
article 8 of the Potsdam Proclamation". Based on the Japanese recognition of article 8, China
arrived at the interpretation that: "this once again affirmed the fact that Taiwan has been
returned to China since World War II". "New Page in Annals of Sino-Japanese Relations",
Renmin Ribao, (30 September 1972). Translated in 40 Peking Review (1972) p. 14.
78. For Western discussions of the claims of the parties, see in particular Tao Cheng,
loc.cit. , n. 64. Also Li, loc.cit., n. 58; T.R. Ragland, "A Harbinger: The Senkaku Islands", 10,
no. 3 San Diego Law Review (1973) pp. 664-691. "Etat de la controverse sur l'appartenance
des iles Senkaku et la delimitation du plateau continental adjacent", 77 Revue General de droit
international public (1973) pp. 233-239 (in the section "Chronique des Faits Internationaux")
and "Senkaku oder Tiao Yu Tai?",Neue lurcher Zeitung (5 July 1974) p. 5.
5.1.1.1 Historical claims
- From 1372 to 1879 a total of twenty-four investiture missions went from

China to the Ryukyu Islands. v The records kept by these missions show that the
Senkaku Islands were used as navigation points, and that these islands did not form
part of the Ryukyu Islands.
- A sixteenth century map shows that the Senkaku Islands supported and formed
part of the defence system built up by the Ming Dynasty against Japanese pirates.80
- In 1893 an imperial edict granted three of the Senkaku Islands to Sheng Xuan-
huai. This man had an apothecary business and he collected the herb Sfiicongyong
(statice arbuscula), which has healing powers, on these islets. The Emperor's
mother, Ci Xi, had benefitted from the use of the herb and rewarded him with the
ownership of these three islets.81
- The Senkaku Islands were used for centuries by fishermen from Taiwan seeking
shelter. Thousands of fishermen from the north of Taiwan are economically depen-
dent on the fishing grounds around the islands. After a dispute between fishermen
from the Ryukyu Islands and from Taiwan in 1941, the Supreme Court of Japan
ruled that the islands fell under the prefecture of Taipei and not under the Okinawa
prefecture.82
5.1.1.2 Claims based on treaty law
Article 2 of the Shimonoseki treaty, dated 17 April 1895, provided that:
"China cedes to Japan in perpetuity and full sovereignty the following terri-
tory, together with all fortifications, arsenals, and public property thereon: . . .
(b) The Island of Formosa, together with all islands appertaining or belonging
to the said island of Formosa."
79. As a symbol that the Emperor of China was superior to the kings and rulers of the
tribute states. The Ryukyu Islands had been dominated since 1609 by the Satsuma clan from
South Kyushu, but these rulers encouraged formal obeissance to the Chinese Emperor by the
Ryukyu king on the basis of a number of trade advantages. On this, see R.K. Sakai, "The
Ryukyu Islands as a fief of Satsuma", and Ta-tuan Ch'en, "Investiture of Liu-Ch'iu Kings in
the Ch'ing Period": both in J.K. Fairbank, ed., "The Chinese World Order. Traditional China's
Foreign Relations (Cambridge, Mass. 1968) pp. 112-134 and pp. 135-164.
80. This map is included in the Chouhai tubian, dating from 1562, by the famous Ming
cartographer, Zheng Ruozong (1501-1580). The work deals with the Chinese defence system
against Japanese pirates, and, more in general, the relations between the two countries. From
1560 Zheng was the advisor of Hu Zongxian, the Commander of the Chinese coastal defence
system. T. Cheng, loc.cit.', n. 64, p. 257;.considers the Chouhai tubian to be an official document.
For a biography of Zheng, see the Dictionary of Ming Biography, Vol. I (New York 1976)
pp. 204-208.
81. For the Chinese text of the edict, see Diaoyu Tai wenti ziliao xuanji (Compilation of
material regarding the Diaoyu Tai problem) (Hong Kong 1972) p. 16, English translation, Park,
loc.cit., n. 50, p. 47.
82. Ragland, loc.cit., n. 78, pp. 667-668, and Li, loc.cit., n. 63, pp. 149-150. No written
documents of the court's decision have survived.
For the above historical reasons it is clear that the Senkaku Islands belonged to
Taiwan, and therefore to China. For this reason Japan is obliged, according to the
Cairo Declaration and the Potsdam Proclamation, which it has explicitly recognised,
to restore the Senkaku Islands to China, since these Islands were stolen from China,
together with Formosa, as is apparent from Article 2 of the Shimonoseki treaty.
5.1.2 Japanese rejoinders
The Chinese mission reports only ever mentioned the islands in passing and there
was never any intention on the part of China to take possession of the islands. Nor
can the use of the islands as a shelter for fishermen be considered as a legitimate
title of ownership. The 1893 edict was no more than an advertisement for Sheng's
apothecary business, and was certainly not a legislative act. Article 2 of the treaty
of Shimonoseki does not apply because the Japanese cabinet had already decided
to annex the islands three months before the treaty was concluded.
Finally, if the islands belonged to Taiwan, they would have been listed by name
in the treaty of Shimonoseki, as were the Pescadores.
K
5.1.3 Japanese claims
The Japanese claims can be divided into three parts:

(1) The Senkaku Islands were terra nullius when they were annexed by Japan in
1895. Between 1885 and 1895 three exploratory expeditions were sent with the in-
tention of annexing the islands. During these expeditions no trace of Chinese occu-
pation or Chinese administration was found. The expeditions did not lead to any
protests from China.
(2) The provisions in the treaties cited by China, therefore, do not apply because
the islands did not belong to Taiwan. On the other hand, Article 3 of the San Fran-
cisco Peace Treaty does apply. This stated that the Ryukyu Islands, including the
Senkaku Islands, came under American administration. When the 1952 Peace Trea-
ty was concluded between Japan and Taiwan, the latter did not request the resto-
ration of the islands or make any protests.
(3) Since 1895 Japan has clearly carried out a continuous and peaceful occupation
of the islands by granting concessions, building meteorological stations, surveying
the territory etc.
5.1.4 Chinese rejoinders
The Chinese replies can be divided into two arguments:

(1) For the above-mentioned historical reasons, the islands were not terra nullius
83. For these arguments, see the declaration of the Japanese Minister of Foreign Affairs,
supra n. 75. For an exhaustive discussion of the Japanese Government's action after 1895, see
Okuhara, loc.cit., n. 55, pp. 97-103.
and Japan knew this to be the case. On three occasions - in 1885,1890 and 1893 -
the magistrate of Okinawa requested that national markers should be established on
the islands. The Japanese Minister of Foreign Affairs advised the Minister of Inter-
nal Affairs to postpone the annexation for the time being because:*4 "the islands
involved were very small, having Chinese names, and very close to the Chinese coast."
And because: " . . . recently some Chinese newspapers had reported rumors about
a Japanese occupation of certain islands near Taiwan and urged the Ch'ing Govern-
ment to be alert." It is for this reason that the Japanese cabinet only agreed to the
annexation of the islands in January 1895, after the military defeat of China in
November 1894 in the war between China and Japan, because China was not in a
position to protest at that point.
(2) China does not contest the fact that the Japanese occupation was effective, but
Japan was never the legitimate sovereign. The administration of the United States
could not give Japan more rights than it had before 1945. The United States had
itself declared that its administration could not be considered to have any influence
on the claims of the different parties.
In view of the cold war situation and the scant economic importance of the
islands, Taiwan had not felt it necessary to protest. Moreover, it is stated in the
Island of Palmas case: 8S
"It would be entirely contrary to the principles laid down above as to territorial
sovereignty to suppose that such sovereignty could be affected by the mere
silence of the territorial sovereign as regards a treaty which has been notified to
him and which seems to dispose of a part of his territory."
5.2 The Chinese and Japanese claims and the law with regard to acquisition of
territory
In general, it is certainly justifiable to question whether international law,

which is based on the sovereign equality of states, applies to Imperial China,
which considered that there was a fundamental inequality between China and
other countries. However, because the Chinese authors used arguments of inter-
national law themselves, as stated in detail above, it does not seem relevant to
raise the question in the context of this article. Two questions of international
law require further investigation with regard to the Senkaku dispute:
(a) The acquisition of territory by the effective occupation of terra nullius; and
(b) The acquisition of territory by prescription.
84. Japanese Ministry of Foreign Affairs, 18 Foreign Affairs Report, no. 311, App. II.
(The Report of the Okinawa Magistrate to the Minister of the Interior, 22 September 1885),
pp. 573-574 (1895) and idem, no. 312 (Memorandum from the Minister of Foreign Affairs
to the Minister of the Interior, 21 October 1885), p. 575. Quoted by Cheng, loc.cit.,
n. 64, pp. 248-249.
85. Island of Palmas Case, (United States v. The Netherlands) AJIL 1928, p. 880. For the
other arguments, see Cheng, loc.cit., n. 64, pp. 248-252.
5.2.1 Acquisition of territory by the effective occupation of tern nullius
The crux of the dispute is the question whether the Senkaku Islands were ac-
tually terra nullius when they were annexed by Japan in 1895. According to legal
doctrine a state can take possession of terra nullius by carrying out two successive
steps:
(1) a symbolic act (e.g., raising a flag) by which it formally takes possession of the
territory; and
(2) the establishment of an administrative organisation within a reasonable period.86
When these two steps have been taken, a state carries out "effective occupation",
but before about 1800 the symbolic act per se was considered to be sufficient
for a legitimate claim.87 Generally speaking, this fact has led to two problems in
case law: a) intertemporal law; and b) the criteria of "effective occupation".
5.2.1.1 Intertemporal law
In the Island of Palmas case, the arbitrator, Max Huber, stated:88
"As regards the question which of different legal systems prevailing at successive
periods is to be applied in a particular case (the so-called intertemporal law), a
distinction must be made between the creation of rights and the existence of
rights. The same principle which subjects the act creative of a right to the law
in force at the time the right arises, demands that the existence of the right, in
other words, its continued manifestation, shall follow the conditions required
by the evolution of the law."
In other words, the symbolic act of before 1800 should be followed by a con-
tinuous manifestation of government action in accordance with the practice of
effective occupation after 1800.89 In fact, the requirement of the peaceful and con-
tinuous manifestation of sovereignty is used very flexibly in case law. In the Island
of Palmas case there was a lapse of one hundred years in the documentary evidence
regarding the exercise of sovereignty by The Netherlands, and in the Legal Status of
Eastern Greenland case there was even a two hundred year gap in the evidence pro-
duced by Denmark.90 In neither of these cases did this fact have a disadvantageous
influence on the claims of the two countries.
86. L. Oppenheim, International Law, A treatise, 8th edn., (London 1955), p. 555, and
I Brownlie, Principles of Public International Law (Oxford 1966) pp. 131, 138.
87. L. Oppenheim, idem, pp. 557-558, and A. Keller,, et al., Creation of Rights of Sover-
eignty through Symbolic Acts (New York 1938) p. 3.
88. Supra n. 85, p. 883.
89. Huber's point of view has been criticised because it undermines the general principle
that laws cannot be applied with retrospective effect. See R. Jennings, Acquisition of Terri-
tory in International Law (Manchester 1963), p. 28.
90. Legal Status of the Eastern Greenland Case (Denmark v. Norway), 1933 PCIJ, Ser A/B,
no. 53, p. 22.
5.2.1.2 Criteria of effective occupation
These are completely dependent on the nature of the area. In the Qipperton
Island Arbitration, the mere proclamation sufficed to establish a title, because the
islet concerned was uninhabited and the claim was not disputed by any other
power. In this case the Tribunal did not consider any form of administration to be
necessary.91 On the other hand, in the Minquiers and Ecrehos case sovereignty was
awarded to the UK on the grounds of the legislative, administrative and judicial
functions which it had exercised on these islands.92 In this context it should be
stated that whether the terra nullius is an island or part of the mainland, and
whether or not it is situated near the claiming state, is of no importance.93 In the
Minquiers and Ecrehos case it is noteworthy that the court did not consider the "in-
tention to take possession" (animus occupandi), which is expressed by the symbolic
act, as an essential requirement. This was probably because the territory concerned
was not a territory which the UK had to secure vis-a-vis other colonial powers, but
an island it had always considered as its own.94
The application to the Chinese claims of the guidelines found in such cases, leads
to the following cautious conclusions. China did not comply with the requirements
of effective occupation even if the law is not applied intertemporally, and the sym-
bolic act therefore was, and remained, sufficient. In fact, this type of act never took
place. On the other hand, there has never been any uniform practice to indicate
exactly what constitutes a "symbolic act", 95 and by analogy with the Minquiers
and Ecrehos case, China can argue that it has always acted on the assumption that
the islands were Chinese. The Qipperton Island Arbitration reinforces the Chinese
claim because the only thing France had done was to send a warship to proclaim
sovereignty over the island.
China used the islands as points of navigation, incorporated them into its
defence system, and, assuming the edict was genuine, even applied its legislation in
the islands. Before 1895 no other power had ever made a claim on the islands.
These facts seem to provide adequate evidence for the point of view that the islands
were not terra nullius when they were annexed by Japan in 1895.
5.2.2 The acquisition of territory by prescription
Even if the Senkaku Islands had indisputably been Chinese territory before they
were annexed by Japan in 1895, Japan could still have obtained a legal title by
means of prescription. Prescription, in this context, refers to the acquisition by a
state of territory which originally belonged to another state. A condition for this is
91. Affaire de l'fle de Clipperton (Mexico v. Fiance), decision of 28 January 1931, Report
of International Arbitral Awards, Vol. II, (Leiden 1949), p. 1105.
92. Minquiers and Ecrehos case (France i>. United Kingdom), 1953, ICJ Rep., p. 47.
93. See D.W. Bowett, The Legal Regime of Islands in International Law (New York 1979),
pp. 45-59. Also see the Island of Palmas Case, supra n. 85, pp. 893-894.
94. I consider Tao Cheng's opinion to be correct: loc.cit., n. 64, pp. 239-240.
95. See Keller, op.cit., n. 87, p. 143.
that a lengthy period of effective occupation has taken place without protest from
the original sovereign.96
The fact that China failed to protest against Article 3 of the San Francisco Peace
Treaty, which placed the islands under American administration, is probably the
most important point in Japan's favour. Nevertheless, there is probably no question
of prescription.
From 1895-1945, Taiwan, including the Senkaku Islands (assuming they were
not terra nullius), was occupied by Japan on the basis of a treaty which had been
procured by coercion. Prescription is a method of acquiring territory by peaceful
means, so that the period of prescription would commence only in 1951, when it
became clear that the islands would come under American administration.
Taiwan's first protest was made in 1969, when it appeared that the United States
were to restore the Ryukyu Islands to Japan.97
There is no fixed period in international law for the acquisition of territory on
the grounds of prescription, but a period of eighteen years is almost certainly too
short.98 Moreover, the Japanese claim is based on terra nullius and not on prescrip-
tion.
In the literature on this matter the Chinese claims are considered to carry more
weight on the ground that the islands are not considered to have been terra nullius
in 1895.
However, if this dispute were ever brought to an international court, there is cer-
tainly a possibility that Japan might emerge as the winning party. Particularly if
there is any uncertainty about the question whether the disputed territory was
originally terra nullius, the court will be inclined to investigate which party has
exercised the most effective occupation.99 There is absolutely no doubt that
Japan has exercised a more effective occupation than China.
5.3 The position of China and Japan with regard to the delimitation of the
continental shelf in the East China Sea
5.3.1 The Chinese position
China has consistently held that the delimitation of the continental shelf in the
East China Sea should take place by means of negotiation on the basis of equality.
The guiding principle in this should be that the continental shelf is the natural pro-
longation of the continental land mass. The equidistance principle is referred to as
a "principle that is not recognised in international law."100
96. See M. Akehurst, A Modern Introduction to International Law (London 1977), p. 143,
and Brownlie, op.cit., n. 86, pp. 143-151.
97. On 24 November 1969. On this matter and with regard to the case against the possible
future claim by Japan on the basis of prescription, see Huang Yangzhi et al. "Diaoyu Tai qian-
wan diubude" (Diaoyu Tai will never be surrendered), included in supra n. 81, pp. 29-32.
98. Akehurst, op.cit., n. 96, p. 143.
99. As in the "Legal Status of the Eastern Greenland Case", supra n. 90, p. 45.
100. In "China's Sovereignty over the East China Sea Continental Shelf", 20 Peking Review
At the Third Conference on the Law of the Sea, the Chinese delegate declared
that the equidistance principle is only legitimate if it is applied in accordance with
"equity, generally recognised in international law and confirmed in many inter-
national documents and in international jurisprudence."101 The formulation "Deli-
mitation . . . shall be effected by agreement in conformity with international law",
from the 1980 Draft Convention, was therefore considered by the Chinese delegate
to be a backward step compared with an earlier draft which did not mention the
words "international law", and merely stated: "Delimitation . . . shall be effected
by agreement in accordance with equitable principles."102 This was undoubtedly
in connection with the fact that for a number of states the application of "inter-
national law" is tantamount to the application of the equidistance principle.
The final statement of the Chinese delegate at the Third Law of the Sea Confe-
rence with regard to the delimitation article of the continental shelf, Article 83,
shows that China considers this article to be a serious shortcoming. As stated above,
the article provides merely that delimitation should take place "by agreement on
the basis of international law, as referred to in Article 38 of the Statute of the
International Court of Justice, in order to achieve an equitable solution". The refe-
rences in Article 83 of the Draft Convention to "equitable principles and relevant
circumstances" are certainly more favourable to China in view of the interpretation
of this in case law.
With regard to islands and their influence on the continental shelf assigned to
a state, Taiwan's reservat:on *o Article 6 of the 1958 Continental Shelf Conven-
tion (viz., that islets and rocks have no effect on the demarcation of the continental
shelf) is particularly significant.
This point of view does not seem to have been expressed by China, but with
regard to the Senkaku Islands its interests are certainly the same as those of
Taiwan.103
China rejects mandatory settlement of disputes relating to delimitation, albeit
in a rather cryptic fashion:104
"Any compulsory and binding third party settlement of a dispute concerning

sea boundary delimitation must have the consent of all parties to the dispute."
(1980) p. 7.
101. Declaration by the Chinese delegate at the ninth session on 5 September 1980. A/Conf.
62/S.R. 135, p. 16.
102. "Informal Composite Negotiating Text/Rev. I" of 28 April 1978. A/Conf. 62/W.P.
10/Rev. I.
103. China admittedly supported the amendment by Venezuela, which was aimed at making
reservations possible under Art. 121.3 (so that one might deduce that China is in favour of the
greatest possible influence of islands on the continental shelf), but this amendment also made
reservations possible to the delimitation articles in the convention.
104. See the declaration of the Chinese delegate during the seventh session on 18 May 1978
(A/Conf.62/S.R.103, Official Records Vol. IX, p. 67) and during the eighth session on 25 April
1979 (A/Conf.62/S.R.112, Official Records Vol. XI, pp. 13-14).
5.3.2 The Japanese position
Despite the fact that Japan is not a party to the Continental Shelf Convention,
it is an outspoken supporter of the equidistance principle. The treaty with South
Korea relating to the delimitation of the northern part of the common continental
shelf of the two countries was concluded on the basis of this principle. At the
second session of the Third Law of the Sea Conference in Caracas in 1974, Japan
proposed the following draft Article on this matter: 105
"3 .(a). Where the coasts of two or more States are adjacent or opposite to each
other, the delimitation of the boundary of the continental shelf (the coastal
sea-bed area) appertaining to such States shall be determined by agreement be-
tween them, taking into account the principle of equidistance.
(b) Failing such agreement, no State is entitled to extend its sovereign rights over
the continental shelf (coastal sea-bed area) beyond the median line, every point
of which is equidistant from the nearest points of the baselines, continental or
insular, from which the breadth of the territorial sea of each State is measured."
At the ninth session, the Japanese delegate, unlike the Chinese delegate, con-
sidered that the article on delimitation in the 1980 Draft Convention should be re-
tained, even though Japan was not "completely satisfied".106
With regard to islands, Japan maintains the view that they have a right to their
own continental shelf, regardless of their position or size.107 At the Law of the Sea
Conference, Japan supported the British proposal to delete Article 121.3, which
imposes special criteria on islands if they are to have a continental shelf. The fol-
lowing Rumanian amendment to Article 121.3 was not acceptable to Japan for
obvious reasons:108
"Uninhabited islets should not have any effect on the maritime spaces belonging
to the main coasts of the States concerned."
In the delimitation treaty with South Korea the Japanese islands of Tsushima
and Iki were used as points of the base line and Tsushima was awarded "full effect".
Accordingly, one Japanese writer considers that the Senkaku Islands have the right
to their own continental shelf on the following grounds:109
"There is no principle of international law prohibiting the use of islands as the

base points of a continental shelf, and the Senkaku Islands are indisputably
islands.
105. See the Japanese draft articles on the continental shelf, supra n. 46.
106. Declaration of the Japanese delegate during the ninth session on 8 September 1980.
A/Conf.62/S.R. 139, p. 3.
107. See the declaration of the Japanese delegates during the second session on 26 July
1974 (A/Conf.62/C.2/S.R.17, Official Records Vol. H, pp. 147-148), and during the seventh
session on 18 May 1978 (A/Conf.62/S.R.103, Official Records Vol. X,pp. 67-68).
108. See the declaration of Nakagawa, supra n. 48.
109. Okuhara, loc.cit., n. 55, pp. 103-105.
The circumstances of the North Sea Continental Shelf cases are not applicable to
the situation in the East China Sea because the states concerned are not
adjacent, nor has one of them a concave coastline; there is no ground therefore 4
for a conclusion that the equidistance principle could result in an inequitable ef- I
feet. The principle of natural prolongation is certainly not a general principle C
because it is too disadvantageous to island states. '
It is true that a few bilateral treaties have ignored the presence of offshore i
islets, but this happened because in these treaties islets belonging to state A
threatened to cut off state B from the continental shelf between state A and its ,!
offshore islets. :
The Senkaku Islands cannot cut China off from a continental shelf because they '
are situated on the edge of the Okinawa Trough." '•
i
In practice, it is clear that Japan adopts a more flexible attitude. The islet of
Takeshima (see Map No. HI), which is disputed between Japan and South Korea, ;
did not influence the delimitation treaty between these two countries, despite the ?
fact that it has been occupied by Korea since 1970. no )
The undisputed Japanese islands of Torishima and Danjo Gunto are situated ;
southwest of Kyushu on the Chinese side of the Okinawa Trough. The treaty be- )
tween Japan and Korea relating to joint development does not influence the sover- «
eignty of the continental shelf, but apparently Japan does not consider it inequit- ;
able that the border of the development zone lies twelve miles from the coastline ;
of these islands.
Japan has more faith in the settlement of disputes by third parties, than does
China. It accepts the compulsory jurisdiction of the ICJ and initially offered to
submit the dispute with South Korea concerning the delimitation of the continental
shelf to international arbitration, or if this did not come up with a solution, to the
ICJ.111 In principle, Japan supports the view that all future disputes relating to the
interpretation and implementation of the new Law of the Sea Convention should
be settled by third parties, in particular, fishery disputes in the Exclusive Economic
Zone. Japan is also in agreement with the structure of arrangements for the
settlement of disputes in the Law of the Sea Convention.112
6. CONCLUSION AND POSSIBLE SOLUTIONS TO THE DISPUTE BE-

TWEEN CHINA AND JAPAN CONCERNING THE DELIMITATION OF
THE CONTINENTAL SHELF IN THE EAST CHINA SEA
There is very little chance that the territorial dispute over the Senkaku Islands
will ever be settled at an international level. Quite apart from the economic impli-
110. According to S. Oda in "The Continental Shelf Agreements between Japan and the
Republic of Korea", p. 254. This article is included in S. Oda, The Law of the Sea in our
time - ; New Developments, 1966-1976 (Leiden 1977). On the other hand, Bowett op.cit.
n. 93, p. 297, considers that the dispute regarding this island has hindered the extension of the
delimitation line towards the north. At first sight, a glance at the map seems to support this
view.
111. Oda, ibid, p. 253.
112. See A/Conf.62/S.R. 105 of 19 May 1978. Official Records Vol. X, p. 82.
N I L R 1985 DELIMITATION OF CONTINENTAL SHELF 153
cations relating to rights over the continental shelf, nationalist sentiments will view
the loss of these islands as a loss of face, and as a national humiliation. In view of
the recent history of bitter enmity between these two nations, these sentiments
are possibly even stronger than in other parts of the world.
Also there is virtually no chance that the dispute concerning the delimitation
of the continental shelf in the East China Sea will be settled in the context of the
Law of the Sea Convention. China rejects any form of compulsory settlement of
disputes by a third party.
Article 298 of the Law of the Sea Convention provides for a compulsory con-
ciliation procedure for disputes concerning delimitation, but if the settlement of
such disputes involves the consideration of a dispute concerning land territory,
the conciliation committee is no longer competent.
In view of the potentially extremely sensitive character of the territorial dispute
concerning the Senkaku Islands, and thus implicitly also the delimitation of the
continental shelf of the East China Sea, it is not very probable that China and
Japan will submit the question of the delimitation of the continental shelf of the
East China Sea to a judicial body in the near future. This possibility is even further
reduced because it might endanger the current process of political, and above all,
economic rapprochement.
However, assuming that the juridical dispute could be separated from the poten-
tial political dispute, there are a number of conceivable alternative solutions. These
solutions can be most clearly described on the basis of three premises:
1. The Senkaku Islands are Chinese.
2. The Senkaku Islands are Japanese.
3. Both states keep their claim to sovereignty over the Senkaku Islands in abeyance.
6.1 The Senkaku Islands are Chinese
In view of the principle of natural prolongation, and in view of the fact that the
Okinawa Trough forms a clear dividing line between the continental shelf of the
East China Sea and the Ryukyu Islands, it seems that on this premise Japan cannot
make any great claim to the continental shelf of the East China Sea.
Admittedly natural prolongation is considered, in the cases decided, to be a diffi-
cult, if not unusable concept for the purposes of delimitation, but in these cases the
disputes concerned a continental shelf which formed the natural prolongation of
both states.
In the East China Sea the geological and geomorphological situation seems to be
clearer, and this has an influence on law. As stated in the North Sea Continental
Shelf cases:
"The institution of the continental shelf has arisen out of the recognition of a
physical fact; and the link between this fact and the law, without which that
institution would never have existed, remains an important element for the
application of its legal regime." (Para. 95).
In state practice I know of two delimitation treaties in which troughs played a

role: the treaty between the UK and Norway, and the treaty between Indonesia and
Australia. In the former, the Norwegian Trough (675 m deep at the deepest point
and therefore much shallower than the Okinawa Trough) is ignored. In the latter
the boundary is formed by the 1000 m isobath, which actually means that the
Timor Trough (maximum depth 3000 m, i.e., slightly deeper than the Okinawa
Trough) forms the border. The situation in the Timor Sea is similar to that in the
East China Sea, but meanwhile the Indonesian Government has adopted with regard
to the delimitation of the remaining continental shelf (between Australia and East
Timor) a different position from that reflected in the 1972 treaty with Australia.
Delimitation of an Exclusive Economic Zone - a concept based on distance, not on
geological features - could set aside the principle of natural prolongation and use
the equidistance principle as the obvious method. However, in view of the fact
that neither China nor Japan has proclaimed a 200 mile zone in the East China
Sea area, this alternative is not yet a realistic possibility. Furthermore, according
to the Chinese Working Paper of 1973, the boundary of the Exclusive Economic
Zone should be determined in accordance with the geological and geographical
circumstances of the area concerned. Moreover, although the equidistance principle
may be an obvious one to use as a delimitation method for the exclusive economic
zone, it should be noted that Article 74 of the Law of the Sea Convention, which
deals with delimitation of the Exclusive Economic Zone, and Article 83, which
deals with the delimitation of the continental shelf, are identical. Nevertheless,
the Japanese position is certainly not a hopeless one, because the law on delimita-
tion clearly tends towards an "equitable" solution of disputes. In the North Sea
Continental Shelf cases the court considered the concave coastline of the Federal
German Republic as a natural feature with inequitable consequences for the deli-
mitation of the continental shelf (para. 89). In the United Kingdom-France Conti-
nental Shelf Arbitration the Tribunal considered that granting "full effect" to the
Scilly Isles would have an inequitable influence on determining the delimitation
line. The same applied to the Kerkennah Islands in the case between Libya and
Tunisia.
Thus it is quite reasonable to suppose that the presence of the Okinawa Trough
forms an extremely inequitable fact of nature for Japan, which must be partly or
wholly corrected if an equitable result is to be achieved.
6.2 The Senkaku Islands are Japanese
The Senkaku Islands are eight very small uninhabited islets situated on a conti-
nental shelf which is the natural prolongation of the continental shelf of another
state. The Senkaku Islands have been inhabited from time to time in the past, but
it is extremely doubtful whether they could sustain an "economic life of their
own" in the sense of Article 121.3 of the Law of the Sea Convention. Up to now
this has not been the case. The other sources of international law, in particular
bilateral treaties and case law, reject the use of this sort of island as a base point
for the continental shelf. In case law this rejection is implicit in the fact that
even much larger offshore islands with a substantial population are only awarded
a half effect or even no effect at all. The Kerkennah Islands and the island of Jerba
in the case between Libya and Tunisia are a good example of this. Bilateral treaties
reject the use of small offshore islands by ignoring such islands as the Senkaku
Islands for the purposes of delimitation. The only exception that I know of is the
1969 treaty between Indonesia and Malaysia. However, the islands concerned in
that treaty are a much greater number of offshore islands, some of which are
quite large and populated (such as Natuna).
From a survey of the first and second premises, the following conclusions may
be drawn. Whatever territorial status the Senkaku Islands acquire, their influence
on determining the delimitation line of the continental shelf in the East China Sea
will be very small, if not non-existent.
It is less certain what legal effect the Okinawa Trough will have on the delimi-
tation in the East China Sea, considering the tendency to find "equitable solu-
tions" for delimitation disputes. This increases the degree of uncertainty regarding
the extent to which natural features can influence the delimitation of a conti-
nental shelf in particular areas. Nevertheless, this author considers that any claim
by China to use the Okinawa Trough as a delimitation line of the continental shelf
will carry more weight in legal terms than other claims which might be made by
Japan.
6.3 Both states keep their claims to sovereignty in abeyance.
Under this premise, the first step would be that the Senkaku Islands are sur-
rounded by a twelve mile zone113 in accordance with Article 121.2 of the Law of
the Sea Convention, which provides that every island, regardless of its size or other
qualifications, is entitled to its own territorial sea. Furthermore, a number of dif-
ferent possible methods could be investigated regarding the delimitation or other-
wise of the continental shelf in the East China Sea, pending a solution of the terri-
torial dispute over the Senkaku Islands. A number of solutions prescribed by inter-
national law, with different degrees of emphasis, have already been outlined above,
but this does not mean that there might not be other, possibly more realistic, solu-
tions, which need certainly not conflict with international law. Three possibilities
spring to mind.
6.3.1 Delimitation on the basis of the principle of proportionality
It has been proposed that the delimitation of the continental shelf in the
East China Sea to the south of a latitude of 30° between China and Japan could
be carried out on the basis of the proportionality principle.114 In view of the
113. As happened, e.g., to the Japanese Danjo Gunto Islands in the joint development
treaty between South Korea and Japan.
114. See Ma, Y.J., "Foreign Investment in the Troubled Waters of the East China Sea"
1 China Yearbook of International law (1981) p. 69. See also Map No. III.
respective lengths of the coastlines, this would result in a division of 64% to

36% in favour of China. North of a latitude of 30° - according to this proposal -
the coastlines of China and Japan are approximately the same length, so that in this
area the equidistance principle would be the obvious one to use. Even though the
author of this proposal evades the problem of the Japanese-Korean zone for joint
development (because this zone is partially situated south of a latitude of 30°),
this solution has the practical advantage of being a simple one. Moreover, it is a
compromise between the more extreme solutions based on natural prolongation,
on the one hand, and equidistance, on the other. Delimitation to the north of a
latitude of 30° - or even anywhere in the area covered by the present Japanese-
South Korean zone for joint development - cannot be expected in the near future
in view of the present relationship between China and South Korea.
6.3.2 The establishment of a zone for joint development between China and
Japan
In the North Sea Continental Shelf cases the International Court of Justice
stated that the parts of the continental shelf which overlap on the grounds of the
different claims of the parties, should be divided . . . "unless they decide on a
regime of joint jurisdiction, user, or exploitation for the zones of overlap or any
part of them . . . " (Para. 101(CX2)).
In a number of bilateral treaties it has been agreed to explore and exploit certain
strictly defined areas with equal shares in the proceeds. The most important prece-
dent for this is obviously the treaty between Japan and South Korea. By analogy
with this treaty, the Chinese-Japanese zone would therefore be situated between
the median line (equidistance principle) dividing the Chinese mainland from Japan,
obviously including the Ryukyu Islands, and the 200 m isobath (principle of
natural prolongation), or the area where the continental shelf of the East China
Sea merges into the Okinawa Trough. The north-eastern boundary of this zone
should then coincide with the south-western boundary of the Japanese-Korean
zone. As in the treaty between Japan and South Korea, the establishment of a
Chinese-Japanese zone could not have any influence on the sovereign rights of the
two states over the continental shelf, in as much as these are vested in them ipso
facto.
6.3.3 A combination of the two former possibilities
In the delimitation case between Norway and Iceland the conciliation committee
decided on the establishment of a zone for joint development which extends
beyond the delimitation line between the Norwegian island of Jan Mayen and Ice-
land. The two countries concluded a treaty on 22 October 1981, on the basis of the
committee's recommendations.115 This treaty provided,inter alia, that the Iceland-
115. 21 International Legal Materials (1982) pp. 1222-1226.
ic share in the joint ventures operating in the Icelandic part of the joint develop-
ment zone would be 75%, while the Norwegian share would be 25%. In the Nor-
wegian part of the joint development zone, this situation would be reversed.
Perhaps this model could provide perspectives for the Chinese-Japanese situation.
The delimitation line could be drawn on the basis of the proportionality principle,
with the south-west boundary of the Japanese-South Korean zone forming the
boundary in the north-east. This would not necessarily prejudice the Chinese claims
on parts of the continental shelf where the Japanese South Korean zone is now
situated. The Chinese-Japanese zone could be established in the way described
above, extending beyond the delimitation line. The formula for establishing each
party's participation share in the joint ventures on either side of the delimitation
line could then be further agreed upon by the two parties.
Cautious suggestions for joint development of the continental shelf around the
Senkaku Islands were put forward by both China and Japan in 1979 and 1980.116
These suggestions have not yet produced any results due to China's sensitivity to
the treaty between Japan and South Korea concerning joint development and
Japan's sensitivity with regard to the territorial status of the Senkaku Islands.
Now that Chinese-Japanese cooperation in the field of offshore oil drilling is
developing to a great extent (inter alia, in Bohai Bay), it is to be hoped that suit-
able solutions can also be found in the East China Sea area to make a similar type
of development possible.
116. See the Sankei Shimbun of 2 August 1979, quoted in Park, loc.cit., n. 68, p. 139, and
"Chinese propose Joint Senkaku Oil Development", Japan Times Weekly (21 June 1980).
Apparently the joint development treaty between Japan and South Korea is an obstacle. On
this matter, see "Mission to China to explain Oil Issue", Japan Times Weekly (16 August
1980).
Map I
Sea of Japan and East China (Agreement between Japan and Republic of Korea)*
120 125 130
Takeshima Is.
o
Ullung I. . ,
— boundary line
— joint development zone
V 200 metre isobath line
Okipayy ,;
200 100 50 25
25
25 •'>../ for 25° - 30°N *
100 50 25
nautical mile
120 125 130
Source: Shitteni Oda
* Taken from Shigeru Oda, The Law of the Sea in our Time -1
New Developments 1966-1975 (Leyden 1977)
Map II
/ •'OCEANIC \ | 7
PETROLEUM CONCESSION AREAS
Republic of China
South Korea
Ryukyu
Japan
J-l Sckytfshigen Kaihotsu
J-ll Ttfi'fc^u and Gulf
J-lll — NiK»A£ekyu and Texaco
J-IV Niihinlhon Seliyu and Shan
MILES
No. 5: Unilateral claims to jurisdiction •
Taken from Choon-Ho Park, Continental Shelf Issues in the Yellow Sea
and the East China Sea (Law of the Sea Institute, Occasional Paper
No. 15 (1972)).
Map III
The Dan]o Gunto and the Tiao Yu Tai - Senkaku Islands*
* Taken from Choon-Ho Park, Continental Shelf Issues in the Yellow Sea
and the East China Sea (Law of the Sea Institute, Occasional Paper
No. 15 (1972)).

Delimitation of The Continental Shelf in The East China Sea by H. Schulte Nordholt

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Delimitation of The Continental Shelf in The East China Sea by H. Schulte Nordholt

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DELIMITATION OF THE CONTINENTAL SHELF IN THE EAST CHINA SEA

1.1 The Convention on the Law of the Sea

Article 83.1 of the Convention on the Law of the Sea reads:

"The delimitation of the continental shelf between States with opposite or

1.2 Bilateral treaties and case law

9. Oxman, loc.cit., n. 4, p. 14.

11. ICJ Rep. (1969) from p. 4.

1.3 Islands and the delimitation of the continental shelf

Article 121.3 of the Law of the Sea Convention reads:

17. See Simmonds, op.cit., p. XXI.

2. THE CHINESE POSITION ON THE LAW OF THE SEA

2.1 The territorial sea

On 4 September 1958, China declared a territorial sea with a width of twelve

2.2 The exclusive economic zone

In a "Chinese Working Paper on Sea Area within the Limits of National

34. Shen Weiliang, A/Conf. 62/S.R.182, p. 33.

2.3 The continental shelf

38. A/AC. 138/SC. II/L.34.

it considered a more flexible definition to be desirable. Later, during the final

3. THE JAPANESE POSITION WITH REGARD TO THE LAW OF THE

42. Declaration by Han Xu. A/Conf.62/P.V. 191, p. 12.

4. THE DISPUTE BETWEEN CHINA AND JAPAN OVER THE SOVER-

4.1 The geological and geographical situation

Fairbridge has given a compact geological description of the continental shelf in

It should be added that the Okinawa Trough is situated at an average of 350

46. See "Japan: Draft Articles on the Continental Shelf", A/Conf.62/C./L.31/Rev.31 of

From a juridical point of view, the situation is complicated by the presence of

"With regard to the determination of the boundary of the continental shelf as

53. See supra, n. 51.

5. THE C LAIMS OF THE PARTIES IN INTERNATIONAL LAW

5.1 The sovereignty over the Senkaku Islands

5.1.1 Chinese claims™

The Chinese claims can be divided into:

5.1.1.1 Historical claims

- From 1372 to 1879 a total of twenty-four investiture missions went from

5.1.1.2 Claims based on treaty law

Article 2 of the Shimonoseki treaty, dated 17 April 1895, provided that:

5.1.2 Japanese rejoinders

The Japanese claims can be divided into three parts:

5.1.4 Chinese rejoinders

The Chinese replies can be divided into two arguments:

In general, it is certainly justifiable to question whether international law,

5.2.1 Acquisition of territory by the effective occupation of tern nullius

5.2.1.1 Intertemporal law

In the Island of Palmas case, the arbitrator, Max Huber, stated:88

5.2.1.2 Criteria of effective occupation

5.2.2 The acquisition of territory by prescription

5.3.1 The Chinese position

"Any compulsory and binding third party settlement of a dispute concerning

5.3.2 The Japanese position

"There is no principle of international law prohibiting the use of islands as the

6. CONCLUSION AND POSSIBLE SOLUTIONS TO THE DISPUTE BE-

6.1 The Senkaku Islands are Chinese

In state practice I know of two delimitation treaties in which troughs played a

6.2 The Senkaku Islands are Japanese

6.3 Both states keep their claims to sovereignty in abeyance.

6.3.1 Delimitation on the basis of the principle of proportionality

respective lengths of the coastlines, this would result in a division of 64% to

6.3.3 A combination of the two former possibilities

115. 21 International Legal Materials (1982) pp. 1222-1226.

V 200 metre isobath line

120 125 130

Source: Shitteni Oda