Maritime Delimitation and Interim Arrangements in North East Asia (Publications on Ocean Development)

407 Pages·2004·3.4 MB·English

by  Sun Pyo Kim

MARITIME DELIMITATION AND INTERIM
ARRANGEMENTS IN NORTH EASTASIA
Publications on Ocean Development
Volume 40
A Series of Studies on
the International, Legal, Institutional and Policy Aspects
of Ocean Development
General Editor: Vaughan Lowe
Chichele Professor of Public International Law and Fellow of All Souls College,
Oxford University
The titles published in this series are listed at the end of this volume.
Maritime Delimitation
and Interim Arrangements
in North East Asia
SUN PYO KIM
MARTINUS NIJHOFF PUBLISHERS
THE HAGUE/LONDON/NEWYORK
AC.I.P. Catalogue record for this book is available from the Library of Congress.
ISBN 90-04-13669-X
Printed on acid-free paper.
All Rights Reserved
@ 2004 Koninklijke Brill NV, Leiden, The Netherlands
Brill Academic Publishers incorporates the imprint Martinus Nijhoff Publishers.
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Printed and bound in The Netherlands
PREFACE
This work will be a useful guide for those who look for rules and practice on
the relations between neighbouring States in the absence of maritime bound-
aries. The main question the author is trying to tackle is how to handle the rela-
tions between neighboring coastal States when there is no maritime boundary
in place. This book attempts to clarify the legal issues of exploitation of oil,
gas and fisheries resources, and jurisdictional conflicts with regard to marine
scientific research and protection of the marine environment in disputed areas.
This book shows numerous instances of provisional arrangements in disputed
areas around the globe together with as many as 45 valuable maps. The author,
a scholar and diplomat of Korea, gives an up-to-date and in-depth analysis of
the complicated legal issues of maritime delimitation and provisional arrange-
ments inNorth East Asia. The English texts of the provisional arrangements in
the region annexed to the book are also valuable materials.
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CONTENTS
Acknowledgements xiii
Abbreviations xv
Table of Maps xvii
Table of Cases xix
Introduction 1
Chapter 1: What Makes Maritime Delimitation Difficult? 5
1. Mare Clausum in Dispute 5
2. Inherent Difficulties in Delimiting Boundaries of the EEZ/
Continental Shelf 9
2.1. Various Factors 9
2.2. Lack of Clear Rules for Maritime Delimitation 9
2.3. Political Nature of Maritime Delimitation 12
2.4. Sovereignty Disputes over Islands 14
2.5. Inefficiency of the Dispute Settlement Procedure 15
3. Observations 17
Chapter 2: Which Law Governs in the Absence of Maritime
Boundaries? 27
1. Can a Unilateral Equidistance Line be a Solution? 27
1.1. Delimitation of Boundaries and Provisional Lines 27
1.2. Rules under the Geneva Convention on the
Continental Shelf 28
1.3. Rules under the LOS Convention 29
1.4. The Need for Searching for Rules in the Disputed Areas 30
2. Drafting History of Articles 74(3)/83(3) of the LOS
Convention 32
2.1. General Background 32
2.2. The First Discussion at the Second Session of
UNCLOS III 33
2.3. From Median Line (ISNT) to Provisional Arrangements
(RSNT) 33
viii Contents
2.4. Median Line, Moratorium, or Provisional Arrangement? 35
2.5. Consensus for Mutual Arrangements 36
3. Meaning of Articles 74(3)/83(3) of the LOS Convention 38
3.1. Provisional Measures and Provisional Arrangements 38
3.1.1. Provisional Arrangement as Provisional Measures 38
3.1.2. Provisional Arrangements by Mutual Consent 41
3.2. Legal Nature of Arrangements in Terms of the Law of
Treaties 42
3.2.1. Practice in Use of the Term “Arrangements” 42
3.2.2. Legal Nature of Arrangements in the Light of the
Drafting History 45
3.2.3. Provisional Arrangements and Treaties 46
3.3. Requirements for an Arrangement to be of a Practical
Nature 50
3.4. Obligations of Coastal States before Delimitation 53
3.4.1. Are there Any Obligations under Customary
International Law? 53
3.4.2. Obligation to Negotiate 53
3.4.3. Obligation of Mutual Restraint 57
3.5. Provisional Arrangements and Interests of Third Parties 60
4. Protection of the Marine Environment in Disputed Areas 64
5. Marine Scientific Research in Disputed Waters 66
5.1. Can a Coastal State Conduct Marine Scientific Research
in the Disputed Areas Without Consent from the Other
Coastal State? 67
5.2. Does the Marine Scientific Research Conducted by
State A, Without Any Protests, Reinforce Its Claims to the
Part of the Disputed Area or Natural Resources in the
Disputed Area? 72
5.3. Can a Third State Conduct Marine Scientific Research in
a Disputed Area Without Consent from Any of Two
Coastal States? 74
6. Observations 75
Chapter 3: Practice on Provisional Arrangements in Disputed
Areas 94
1. Possible Provisional Arrangements in Disputed Areas 94
2. Policy Option 1: Joint Development Zones 96
2.1. Kuwait-Saudi Arabia 97
2.2. South Korea-Japan 99
Contents ix
2.3. Malaysia-Thailand 99
2.4. Malaysia-Vietnam 101
2.5. Australia-Indonesia 102
2.6. United Kingdom-Argentina in the South West
Atlantic 104
3. Policy Option 2: Joint Fishing Zones 107
3.1. Grey Zones 110
3.1.1. Soviet Union and Norway in the Barents Sea 110
3.1.2. Sweden and Denmark 114
3.1.3. Denmark and Poland 115
3.1.4. Venezuela and Trinidad & Tobago 116
3.1.5. Canada and France (St. Pierre and Miquelon) 118
3.1.6. United Kingdom and Denmark (Faroe Islands) 119
3.1.7. Joint Fishing Zone between South Korea and
Japan of 1965 121
3.1.8. New Fisheries Agreements in North East Asia 121
3.2. Joint Fishing Zones Focusing on Specific Fish Stocks 121
3.2.1. Agreement between the US and Canada on the
Enforcement Measures Regarding the
Conservation of Halibut in the Northern Pacific
and Bering Sea 121
3.2.2. Denmark (Greenland), Iceland and Norway
(Jan Mayen) on Capelin Fishing 123
3.3. White Zones 123
3.3.1. Sweden and the Soviet Union in the Baltic Sea 124
3.3.2. Sweden and Poland 125
3.3.3. White Zones between Finland and the Soviet
Union and Finland and Sweden 126
4. Policy Option 3: Fisheries Arrangement on the Basis of
De Facto Boundaries 128
4.1. Fisheries Agreement between the USSR and Japan 129
4.2. Co-operative Fisheries Arrangements around the
Falkland Islands between the UK and Argentina 130
5. Policy Option 4: Comprehensive Joint Exploitation Zones 132
5.1. Iran-Sharjah (U.A.E.) 132
5.2. Colombia-Jamaica 134
5.3. Guinea-Bissau-Senegal 136
5.4. Saudi Arabia and Sudan 139
6. Policy Options 5: Single Provisional Fisheries
Boundary 140