Jon M. Van Dyke

Sharing the Resources of the South China Sea

I.Introductory Overview. II. The Regional Political Context of the Problem. III. Analyzing the South China Sea Claims Under International Law. IV. The Political Dimensions of the Disputes. V. Approaches and Half-Measures. VI. The Danger of the Status Quo. VII. The Allocation Option. VIII. The Regional Multilateral Cooperative Regime Option: Managed Sharing of a Regional Commons. IX. An Ideal Maritime Regime. Appendix 1: Descriptions of Spratly Features. Appendix 2: Proposals for Cooperation Emanating from the South China Sea Dialogue. List of Figures. List of Tables. List of Plates. Index. About the Authors.

The North/South Korea Boundary Dispute in the Yellow (West) Sea

North and South Korea have clashed twice over their boundary in the Yellow (West) Sea. The issue is quite complicated, resulting from differences over the validity of the Northern Limit Line (NLL) and the appropriate maritime boundary, exacerbated by competition for valuable blue crab. This paper describes the incidents and the issues, analyzes the NLL and boundary disputes, and proposes possible solutions to this dangerous situation. Although the NLL is--or was--a useful temporary conflict avoidance device, treating it as a permanent maritime boundary is not supported by legal principles and precedents. Ways forward include creating a military-free joint fishing zone with an agreed code of conduct for fishing vessels operating there.

The Rio Principles and our responsibilities of ocean stewardship

The 1992 Rio Principles confirm the responsibilities of all countries to prevent damage outside their borders, to use the precautionary approach, to internalize environmental costs, to prepare environmental impact assessments with full public participation, and to consult with other affected countries whenever planned activities may cause harm to others. These Principles are primarily procedural, however, and they ignore the need to protect biodiversity and rare and fragile ecosystems, as well as the substantive ideas encompassed in the Public Trust Doctrine. Principle 13 chides nations for their reluctance to develop mechanisms to ensure liability and facilitate compensation for environmental damage caused to areas beyond national jurisdiction. Recent initiatives at the World Bank and through NAFTA provide useful examples of how environmental concerns can be incorporated into international decision making.

Uninhabited islands: Their impact on the ownership of the oceans’ resources

Abstract Article 121 of the Draft Convention of the Third United Nations Conference on the Law of the Sea grants a 200‐mile exclusive economic zone and continental shelf to all islands, excepting only those “rocks which cannot sustain human habitation or economic life of their own.”; This provision allocates vast amounts of ocean spaces to tiny uninhabited islets scattered throughout the oceans, many of which were claimed for guano a century ago and have been largely ignored since then. Tiny Clip‐perton Island, 600 miles south of Mexico and now claimed by France, is one significant example. This article reviews all the negotiating history on Article 121 (and its counterparts in earlier treaties) and examines the proposals that have been made to amend this provision during previous negotiating sessions. The article then examines how the provision will operate with regard to dividing up the oceans’ resources among the nations during the coming generation. The authors conclude that the negotiators at the Law...

Applying the precautionary principle to ocean shipments of radioactive materials

A new regime is emerging to govern the sea transport of ultrahazardous materials such as plutonium and high‐level nuclear wastes. Building on the precautionary principle and on provisions in the 1982 United Nations Law of the Sea Convention and the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, the International Atomic Energy Agency and the International Maritime Organization are developing instruments that confirm the requirements of prior consultation on routes and emergencies and the preparation of environmental impact assessments. State practice, as reflected in the complaints voiced during the 1992 shipment of plutonium and the 1995 shipment of vitrified high‐level wastes from France to Japan, and in the acquiescence of the vessels to these complaints, indicates that the countries involved in and affected by these shipments already understand and accept the emergence of this new regime.

Legal Issues Related to Sovereignty over Dokdo and Its Maritime Boundary

This article examines the historical events relevant to the claims of sovereignty by Japan and Korea over Dokdo, the legal doctrines that have been applied by international tribunals to other disputes over remote and uninhabited territories, and the principles governing maritime boundary delimitation that are relevant to the ocean space around Dokdo. The applicable decisions of the International Court of Justice and other tribunals are examined in detail. Among the topics addressed are the methods of acquiring sovereignty over territory, the relevance of contiguity to such claims, the requirements of effective protests, and the activities and omissions that constitute acquiescence. Attention is also given to the status of this matter as a “dispute” and how closure might be brought to it.This article examines the historical events relevant to the claims of sovereignty by Japan and Korea over Dokdo, the legal doctrines that have been applied by international tribunals to other disputes over remote and uninhabited territories, and the principles governing maritime boundary delimitation that are relevant to the ocean space around Dokdo. The applicable decisions of the International Court of Justice and other tribunals are examined in detail. Among the topics addressed are the methods of acquiring sovereignty over territory, the relevance of contiguity to such claims, the requirements of effective protests, and the activities and omissions that constitute acquiescence. Attention is also given to the status of this matter as a “dispute” and how closure might be brought to it.

The Republic of Korea's Maritime Boundaries

The Republic of Korea inhabits a peninsula surrounded by the sea, but its ocean space is restricted because it has close neighbours in each direction. Although the Korean people have a long tradition of fishing in waters near and far, the ocean resources they control under the rules established by the 1982 United Nations Law of the Sea Convention1 and other principles of international law are limited because of the crowded geography of North-east Asia. This paper examines the issues related to each of South Koreas maritime boundaries, explains how the complex legal principles governing maritime boundaries might be applied in the Korean context, and analyses the options the Republic of Korea might pursue in negotiating the delimitation of its boundaries.

Sea shipment of japanese plutonium under international law

Abstract The Japanese governments shipment of plutonium from France to Japan raises a number of significant questions under international law. The first shipment, which began in November 1992 on the Akatsuki Maru, violated international law in several respects. This article analyzes the international law that governs these shipments, focusing on the rules that govern navigation on the high seas and exclusive economic zones, territorial seas, and international straits, and also addresses the question of liability for damage.

North-East Asian Seas-Conflicts, Accomplishments and the Role of the U n ited States

North-east Asia does not have a formal maritime regime, and has had to deal with its many conflicts in an ad hoc and pragmatic fashion. The region has three significant conflicts over the sovereignty of islands, numerous unresolved maritime boundary disputes, and confrontational military situations in the Korean Peninsula and the Taiwan Strait. Despite these deep differences, the strong-willed countries of this region have been able to work together to reach bilateral agreements regarding the exploitation of resources. Their fishery agreements have been creative and constructive, and zones of shared exploitation and development have been established where appropriate. The countries of the region now need to seek long-term solutions in order to provide a stable maritime regime, and to deal with the serious environmental problems of their ocean areas. The United States has been a de facto member of this region, because of its role in providing a military balance, and might be able to help mediate some of the festering disputes that interfere with the ability of the countries of North-east Asia to work constructively together.

Protected marine areas and low-lying atolls

Abstract The isolated atolls of the Pacific have been an inviting target during this century for the hazardous activities of the developed world. Bikini, Enewetak, Christmas, Johnston, Moruroa, and Fangataufa have all been used for nuclear tests, and these tests are continuing at Moruroa and Fangataufa. Johnston now contains thousands of canisters of nerve gas, and a large chemical disposal facility has been built to incinerate these substances and other chemical weapons now stored elsewhere. The small islands of Palau have been looked at as the possible site for an oil superport and may be used for a US military base in the future. Most recently, the government of the Marshall Islands has suggested that Bikini, Enewetak, and Erikub Atolls might be used as storage sites for nuclear wastes. These missions are hazardous to the marine environment and are incompatible with the protection of the unique ecosystems found at these atolls. A low-lying atoll cannot be distinguished from its surrounding marine environment and must be thought of as an inherent part of the ocean ecosystem. An atoll is inevitably subject to typhoons and tsunamis (tidal waves), and any hazardous substances on its narrow land area can be swept into the surrounding ocean system. Particularly when one is dealing with long-lived radioactive nuclides, or highly toxic chemical weapons, it is unrealistic to imagine that these materials can be separated from the ocean environment during the entire period that they present dangers. The 1982 Law of the Sea Convention and all the ‘regional seas’ treaties drafted with the assistance of the United Nations Environment Program, including the Convention for the Protection of the Natural Resources and Environment of the South Pacific Region (Article 14), require member nations to ‘take all appropriate measures to protect and preserve rare or fragile ecosystems…’ Substantial efforts are now being made at the global, regional, and national level to identify appropriate ‘specially protected areas’ and to define the types of protection that should be provided for these areas. An isolated low-lying atoll is, almost by definition, a ‘rare or fragile ecosystem’ and all these atolls should be designated as ‘specially protected areas’ deserving of careful planning, management, and protection.