The UN Convention on the Law of the Sea and the Maritime Disputes in the South China Sea

Robert Beckman

doi:10.5305/amerjintelaw.107.1.0142

¹ UN Convention on the Law of the Sea, opened for signature Dec. 10, 1982, 1833 UNTS 397, reprinted in 21 ILM 1261 (1982) [hereinafter UNCLOS]. UNCLOS entered into force on November 16, 1994. As of October 8, 2012, 163 states and the European Union are parties to the Convention. The Convention is available at http://www.un.org/Depts/los/index.htm.

² The dates of ratification of the five claimant states are as follows: Brunei Darussalam, November 5, 1996; China, June 7, 1996; Malaysia, October 14, 1996; the Philippines, May 8, 1984; and Vietnam, July 25, 1994. See United Nations Treaties Collection, Status of Treaties, at http://treaties.un.org/pages/ParticipationStatus.aspx. If the Gulf of Thailand is considered to be an arm of the South China Sea, then Cambodia and Thailand would also be bordering states, but since these two states are not involved in the territorial disputes or maritime disputes addressed herein, I have not considered them to be bordering states in this article.

³ For the action taken by Taiwan to pass legislation claiming maritime zones as provided in UNCLOS, as well as a comparison of the positions of China and Taiwan, see Yann-Huei, Song & Keyuan, Zou, Maritime Legislation of Mainland China and Taiwan: Developments, Comparison, Implications, and Potential Challenges for the United States, 31 Ocean Dev. Ȇ Int&l L. 303, 310–12 (2000).Google Scholar

⁴ Generally, under UNCLOS, coastal states can claim a territorial sea and contiguous zone (Part II), an exclusive economic zone (Part V), and a continental shelf (Part VI).

⁵ See generally UNCLOS, supra note 1, Arts. 5–14, 47. Waters on the landward side of the baselines are either internal waters or, in the case of an archipelagic states such as Indonesia and the Philippines, archipelagic waters.

⁶ See UNCLOS, supra note 1, Arts. 3 (territorial sea), 33(2) (contiguous zone), 57 (exclusive economic zone), 76 (continental shelf ).

⁷ See UNCLOS, supra note 1, Pt. XV.

⁸ Schofield, Clive, Dangerous Ground: A Geopolitical Overview of the South China Sea, in Security and International Politics in the South China Sea 18 (Batemen, Sam & Emmers, Ralf eds., 2009)Google Scholar.

⁹ See the map printed with the Editors’ Introduction, 107 AJIL 95 (2013) [hereinafter South China Sea map].

¹⁰ This compilation is based on the South China Sea map, supra note 9, as well as information provided in David Hancox & Victor Prescott, A Geographical Description of the Spratly Islands and an Account of Hydrographic Surveys Amongst Those Islands (1995).

¹¹ This figure is based on an analysis of information provided in Hancox & Prescott, supra note 10.

¹² Schofield, supra note 8, at 7–25.

¹³ South China Sea map, supra note 9.

¹⁴ Daniel J. Dzurek, The Spratly Islands Dispute: Who’s on First? 56–57 (1996).

¹⁵ Tonnesson, Stein, Why are the Disputes in the South China Sea So Intractable? A Historical Approach, 30 Asian J. Soc. Sci. 570, 574 (2002)Google Scholar.

¹⁶ See, for example, the response of the Chinese Foreign Ministry spokesperson to a question on Vietnam’s objections to Chinese military exercises around the Paracel Islands: “It is known to all that China has undeniable sovereignty over the Xisha Islands and its adjacent islets. China and Vietnam have no dispute over this issue.” Ministry of Foreign Affairs of the People’s Republic of China, Foreign Ministry Spokesperson Qin Gang’s Regular Press Conference on 27 November, 2007 (Nov. 28, 2007), at http://www.fmprc.gov.cn/eng/xwfw/s2510/t385091.htm.

¹⁷ For example, in March 2010, a Chinese patrol vessel seized a Vietnamese fishing boat and its twelve-man crew around the Paracels. See Buszynski, Leszek, The South China Sea: Oil, Maritime Claims, and U.S.-China Strategic Rivalry, 35 Wash. Q. 139, 143 (2012)Google Scholar.

¹⁸ South China Sea map, supra note 9.

¹⁹ Hancox & Prescott, supra note 10.

²⁰ China’s Ministry of Foreign Affairs acknowledged the establishment of Sansha in June 2012, see Ministry of Foreign Affairs of the People’s Republic of China, Foreign Ministry Spokesperson Hong Lei’s Regular Press Conference on June 25, 2012 (June 26, 2012), at http://www.fmprc.gov.cn/eng/xwfw/s2510/2511/t945654.htm, and local government officials took office in July, see China Establishes Sansha City, Xinhuanet Eng. News (July 24, 2012), at http://news.xinhuanet.com/english/china/2012-07/24/c_131734893.htm.

²¹ Department of Foreign Affairs, Philippine Position on Bajo de Masinloc (Scarborough Shoal) and the Waters Within Its Vicinity, Official Gazette of the Republic of the Philippines, Apr. 28, 2012, available at http://www.gov.ph/2012/04/18/philippine-position-on-bajo-de-masinloc-and-the-waters-within-its-vicinity/.

²² Zou Keyuan, Scarborough Reef: A New Flashpoint in Sino-Philippine Relations?, IBRU Boundary Security Bull., Summer 1999, at 71.

²³ See id.; Philippine Position on Bajo de Masinloc (Scarborough Shoal) and the Waters Within Its Vicinity, supra note 21, at 2.

²⁴ See UK Hydrographic Office, South China Sea (Nautical Chart 4508, Edition No. 3; 1:3,500,000) (International Chart Series May 8, 2003) [hereinafter Nautical Chart 4508].

²⁵ UNCLOS, supra note 1, Arts. 2, 3.

²⁶ Id., Arts. 33, 55, 76.

²⁷ Brunei Darussalam adopted the Territorial Waters of Brunei Act, 1982; China issued the Law on the Territorial Sea and the Contiguous Zone (Feb. 25, 1992), Declaration on the Baselines of the Territorial Sea (May 15, 1996), and Law on Exclusive Economic Zone and Continental Shelf (June 26, 1998); Indonesia issued Law No. 1/1973 Concerning Continental Shelf (Jan. 6, 1973), Law No. 5/1983 Concerning Indonesia Exclusive Economic Zone (Oct. 18, 1983), Law No. 6/1996 Concerning Indonesian Water (Aug. 8, 1996), Government Regulation No. 38/2002 on the Geographical List of Coordinates of the Indonesian Archipelagic Baselines (June 28, 2002), and Government Regulation No. 37/2008 Amending Regulations No.38/2002 (May 19, 2008); Malaysia adopted the Baselines of Maritime Zones Act 2006 (Act 660, Dec. 29, 2006), at http://faolex.fao.org/docs/texts/mal70074.doc, and the Territorial Sea Act 2012 (Act 750, June 18, 2012), at http://www.federalgazette.agc.gov.my/outputaktap/20120622_750_Bi_Act%20750%20Bi.pdf; the Philippines adopted Act No. 9522 to Amend Certain Provisions of Republic Act No. 3046, as Amended by Republic Act No. 5446, to Define the Archipelagic Baselines of the Philippines and for Other Purposes (Mar. 10, 2009); Vietnam issued the Statement on the Territorial Sea, the Contiguous Zone, the Exclusive Economic Zone and the Continental Shelf (May 12, 1977) and Statement on the Territorial Sea Baseline (Nov. 12, 1982), and adopted the Law of the Sea of Vietnam (Law No. 18/2012/QH13, June 21, 2012), at http://www.monre.gov.vn/v35/default.aspx?tabid=675&CateID=80&ID=119716&Code=X7J3119716 (unofficial English translation); and Taiwan adopted the Law on the Territorial Sea and Contiguous Zone of the Republic of China (Jan. 21, 1998), at http://www.asianlii.org/cn/legis/cen/laws/tsatcz392/, and the Law on the Exclusive Economic Zone and the Continental Shelf of the Republic of China (Jan. 26, 1998), at http://www.asianlii.org/cn/legis/cen/laws/eezatcs443/. Unless otherwise indicated, the legal instruments cited above, as well as those cited in subsequent footnotes, are available at http://www.un.org/Depts/los/Legislationandtreaties/asia.htm.

²⁸ For an analysis of the U.S. response to straight baseline claims, see J. Ashley Roach & Robert W. Smith, Excessive Maritime Claims 98 (China’s baselines), 80 (Philippines’ baselines), 82, 99–101 (Vietnam’s baselines) (3rd ed. 2012). For the U.S. Department of State analysis of the claimant’s baselines, see Bureau of Intelligence & Research, U.S. Dep’t of State, Limits in the Seas No. 33, Straight Baselines: The Philippines (1973), available at http://www.state.gov/documents/organization/61546.pdf; Bureau of Intelligence & Research, U.S. Dep’t of state, Limits in the Seas No. 99, Straight Baselines: Vietnam, available at http://www.state.gov/documents/organization/58573.pdf; Bureau of Intelligence & Research, U.S. Dep’t of State, Limits in the Seas No. 117, Straight baselineclaim: China, available at http://www.state.gov/documents/organization/57692.pdf; and Bureau of Intelligence & Research, U.S. Dep’t of State, Limits in the Seas No. 127, Taiwan’s Maritime Claims, available at http://www.state.gov/documents/organization/57674.pdf.

²⁹ Baselines of Maritime Zones Act 2006, supra note 27 (entered into force Dec. 31, 2006); see also Territorial Sea Act 2012 (Malaysia), supra note 27.

³⁰ Douglas M. Johnston & Mark J. Valencia, Pacific Ocean Boundary Problems: Status and Solutions 151–54 (1991).

³¹ Supra note 27.

³² Act No. 9522, supra note 27.

³⁴ UNCLOS, supra note 1, Art. 8(1). Pursuant to Article 35(a), the same rule applies with respect to transit passage of straits used for international navigation.

³⁵ See supra note 27 and accompanying text.

³⁶ Pursuant to UNCLOS, supra note 1, Annex II, Article 4, coastal states intending to establish the outer limits to their continental shelves beyond 200 nm are required to submit particulars of such limits to the CLCS within ten years of the entry into force of UNCLOS. In 2008, states parties agreed to amend the requirement to allow states to meet the time-period requirement by submitting preliminary information to the Clcs. See UN Doc. SPLOS/183 (June 20, 2008), at http://www.un.org/Depts/los/meeting_states_parties/eighteenthmeetingstatesparties.htm.

³⁷ Joint Submission by Malaysia and the Socialist Republic of Vietnam to the Commission on the Limits of the Continental Shelf, May 6, 2009, at http://www.un.org/Depts/los/clcs_new/submissions_files/submission_mysvnm_33_2009.htm.

³⁸ Submission by the Socialist Republic of Vietnam to the Commission on the Limits of the Continental Shelf (May 7, 2009) (partial submission in respect of Vietnam’s extended continental shelf north areas (VNM-N)), at http://www.un.org/Depts/los/clcs_new/submissions_files/submission_vnm_37_2009.htm.

³⁹ See Note Verbale CML/17/2009 from the Permanent Mission of the People’s Republic of China to the UN Secretary-General (May 7, 2009), at http://www.un.org/Depts/los/clcs_new/submissions_files/submission_mysvnm_33_2009.htm (objecting to the joint submission by Malaysia and Vietnam); Note Verbale CML/18/2009 from the Permanent Mission of the People’s Republic of China to the UN Secretary-General (May 7, 2009), at http://www.un.org/Depts/los/clcs_new/submissions_files/submission_vnm_37_2009.htm (objecting to the submission of Vietnam); Note Verbale No. 000818 from the Permanent Mission of the Republic of the Philippines to the UN Secretary-General (Aug. 4, 2009), at http://www.un.org/Depts/los/clcs_new/submissions_files/submission_vnm_37_2009.htm (objecting to the submission of Vietnam); Note Verbale No. 000819 from the Permanent Mission of the Republic of the Philippines to the UN Secretary-General (Aug. 4, 2009), at http://www.un.org/Depts/los/clcs_new/submissions_files/submission_mysvnm_33_2009.htm (objecting to the joint submission of Malaysia and Vietnam).

⁴⁰ Rules of Procedure of the Commission on the Limits of the Continental Shelf, UN Doc. CLCS/40/Rev.1 (Apr. 17, 2008), at http://www.un.org/Depts/los/clcs_new/commission_documents.htm#Rules of Procedure. Annex I, para. 5(a), provides:

In cases where a land or maritime dispute exists, the Commission shall not consider and qualify a submission made by any of the States concerned in the dispute. However, the Commission may consider one or more submissions in the areas under dispute with prior consent given by all States that are parties to such a dispute.

⁴¹ See Act No. 9522, supra note 27 and accompanying text.

⁴² See A Partial Submission of Data and Information on the Outer Limits of the Continental Shelf of the Republic of the Philippines Pursuant to Article 76(8) of the United Nations Convention on the Law of the Sea at 12 (Apr. 21, 2009), at http://www.un.org/Depts/los/clcs_new/submissions_files/phl22_09/phl_esummary.pdf, in which the Philippines “expressly reserves its right to make other submissions for such other areas of the continental shelf beyond 200 M at a future time in conformity with the provisions of Annex I to the Rules of Procedure of the Commission.”

⁴³ Declaration of the Government of the People’s Republic of China on the Baselines of the Territorial Sea, May 15, 1996; see also Maritime Zone Notification 7 (July 5, 1996) (communicating the deposit of lists of geographical coordinates by China), at http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/STATEFILES/CHN.htm.

⁴⁴ See Exclusive Economic Zone and Continental Shelf Act, supra note 27, Art. 2.

⁴⁵ See Song Yann-Huei & Zou Keyuan, supra note 3.

⁴⁶ See, e.g., South China Sea map, supra note 9.

⁴⁷ Agreement Between the People’s Republic of China and the Socialist Republic of Vietnam on the Delimitation of the Territorial Seas, Exclusive Economic Zones and Continental Shelves in the Beibu Gulf/Bac Bo Gulf (Gulf of Tonkin), Dec. 25, 2000 (entered into force June 30, 2004); see 5 Int’l Mar. Boundaries 3755–58 (David Colson & Robert Smith eds., 2005) (unofficial English translation). A discussion of the boundary agreement is provided in Keyuan, Zou, The Sino-Vietnamese Agreement on Maritime Boundary Delimitation in the Gulf of Tonkin, 36 Ocean Dev. & Int’l L. 13, 14 (2005)Google Scholar.

⁴⁸ In an exchange of letters dated March 16, 2009, Malaysia and Brunei Darussalam agreed to maritime boundaries for the territorial sea, the EEZ, and continental shelf out to 200 nm. Although the letters are not publicly available, the exchange was disclosed in a joint press release by the two countries. See Joint Press Statement by Leaders on the Occasion of the Working Visit of Yab Dato’ Seri Abdullah Haji Ahmad Badawi, Prime Minister of Malaysia, to Brunei Darussalam on 15–16 March 2009 (Mar. 17, 2009) at http://bn.chineseembassy.org/eng/wlxw/t542877.htm. It was also mentioned in Brunei Darussalam’s Preliminary Submission Concerning the Outer Limits of Its Continental Shelf at 3–4 (May 12, 2009), at http://www.un.org/Depts/los/clcs_new/submissions_files/preliminary/brn2009preliminaryinformation.pdf. The territorial sea and continental shelf between Brunei Darus salam and Malaysia had been delimited as far as the one hundred fathom isobath by two 1958 British orders in council, see 1 Int’l Mar. Boundaries 915–28 (Jonathon I. Charney & Lewis M. Alexander eds., 1993). The adjacent maritime boundary between the Philippines and Malaysia will be especially difficult to negotiate because of the Philippine claim to Sabah.

⁴⁹ Agreement Between the Government of the Republic of Indonesia and the Government of Malaysia Relating to the Delimitation of the Continental Shelf Between the Two Countries, Oct. 27, 1969, 9 ILM 1173 (1970) (entered into force Nov. 7 1969); Agreement Between the Government of the Socialist Republic of Vietnam and the Republic of Indonesia Concerning the Delimitation of the Continental Shelf Boundary, June 26, 2003 (entered into force May 29, 2007), at 67 Law of The Sea Bulletin 39 (2008).

⁵⁰ See the map of Indonesia’s fisheries management area (Wilayah Pengelolaan Perikanan), which appears as Appendix (Lampiran) I (on page 7) of Indonesia’s Ministry of Marine Affairs and Fisheries, Fishery Regulation No. 1, at http://www.infohukum.kkp.go.id/files_permen/Per%2001%20Men%202009.pdf. The map’s coordinates are generally indicative of Indonesia’s Eez claim.

⁵¹ See Territorial and Maritime Dispute (Nicar. v. Colom.), 2012 ICJ Rep. 1, para. 140 (Nov. 19); Delimitation of the Maritime Boundary Between Bangladesh and Myanmar in the Bay of Bengal (Bangl. v. Myan.), Itlos Case No. 16, para. 185 (Mar. 14, 2012). The judgments and decisions, as well as other materials, of the International Court of Justice are available on its website, http://www.icj-cij.org, and of the International Tribunal for the Law of the Sea, on its website, http://www.itlos.org.

⁵² Unclos, supra note 1, Art. 121(2).

⁵³ Id., Art. 13.

⁵⁴ Id., Art. 13(2).

⁵⁵ Maritime Delimitation and Territorial Questions Between Qatar and Bahrain, supra note 51.

⁵⁶ Id., para 205.

⁵⁷ Id.

⁵⁸ Id., para 206.

⁵⁹ Id., para 207.

⁶⁰ Territorial and Maritime Dispute, supra note 51, para. 26.

⁶¹ A safety zone of limited breadth, as specified in UNCLOS or applicable international regulations, may be estab lished around artificial islands, installations, and structures beyond the territorial sea. UNCLOS, supra note 1, Arts. 60(4)–(5), 147(c), 260, Annex Iii, Art. 17, para. 1(b).

⁶² Unclos, supra note 1, Arts. 60, 80. The termartificial island is not defined in UNCLOS. However, it generally refers to a feature that is above water at high tide because of land reclamation or other human activity. In other words, it fails to meet the definition of an “island” under Article 121 because it is not a “naturally formed” area of land but rather is a man-made feature. Installations and structures are also not defined, but they would refer to things like buildings, lighthouses, research stations, and oil platforms. Installations and structures are often built on low-tide elevations or submerged features.

⁶³ Id., Art. 60(1).

⁶⁴ The point being made here can be understood more concretely by referring to a map of the South China Sea— map no. 803426A1, (G02284) 1–10, published by the Office of the Geographer, U.S. Department of State in January 2010—that can be downloaded from the Centre for International Law’s website, at http://cil.nus.edu.sg/wp/wp-content/uploads/2011/06/75967_South-China-Sea-1.pdf (see insert on the map entitled “Paracel and Spratly Islands Occupation Status”).

⁶⁵ Law of the Sea of Vietnam, supra note 27, Art. 20(2).

⁶⁶ UNCLOS, supra note 1, Art. 75.

⁶⁷ Id., Art. 16.

⁶⁸ Id., Art. 75.

⁶⁹ If Malaysia and the Philippines can reach agreement on their adjacent EEZs boundary, most of the maritime space within the EEZs of Malaysia, the Philippines, and Vietnam will be clear. The only maritime areas in dispute will then be the 12 nm territorial sea surrounding the disputed islands, unless China claims EEZs and continental shelves from some or all of the islands.

⁷⁰ For excellent summaries of the historic claim of China, see Shen, Jiangming, International Law Rules and His torical Evidences Supporting China’s Title to the South China Sea Islands, 21 Hastings Int’l & Comp. L. Rev. 1 (1997–98)Google Scholar; Shen, Jiangming, China’s Sovereignty over the South China Sea Islands: A Historical Perspective, 1 Chinese J Int’l L. 94 (2002)Google Scholar.

⁷¹ See Nautical Chart 4508, supra note 24.

⁷² See Notes Verbales CML/17/2009 & CML/18/2009, supra note 39.

⁷³ Keyuan, Zou, China’s U-Shaped Line in the South China Sea Revisited, 43 Ocean Dev. & Int’l L. 18 (2012)Google Scholar; Miyoshi, Masahiro, China’s “U-Shaped Line” Claim in the South China Sea: Any Validity Under International Law?, 43 Ocean Dev. & Int’l L. 1 (2012)CrossRef Google Scholar; Thang, Nguyen-Dang & Thao, Nguyen Hong, China’s Nine Dotted Lines in the South China Sea: The 2011 Exchange of Diplomatic Notes Between the Philippines and China, 43 Ocean Dev. & Int’l L. 35 (2012)CrossRef Google Scholar; Gau, Michael Sheng-Ti, The U-Shaped Line and a Categorization of the Ocean Disputes in the South China Sea, 43 Ocean Dev. & Int’l L. 57 (2012)Google Scholar.

⁷⁴ See Jinming, Li & Dexia, Li, The Dotted Line on the Chinese Map of the South China Sea: A Note, 34 Ocean Dev. & Int’l L. 287, 289–90 (2003)CrossRef Google Scholar.

⁷⁵ See Notes Verbales CML/17/2009 & CML/18/2009, supra note 39.

⁷⁶ Article 2(1) of UNCLOS, supra note 1, states: “The sovereignty of a coastal State extends, beyond its land territory and internal waters, to an adjacent belt of sea, described as the territorial sea” (emphasis added).

⁷⁷ See id., Arts. 56, 77.

⁷⁸ Note Verbale No. 000228 from the Permanent Mission of the Republic of the Philippines to the UN Sec retary-General (Apr. 5, 2011), at http://www.un.org/Depts/los/clcs_new/submissions_files/submission_vnm_ 37_2009.htm (objecting to the statements made in China’s Notes Verbales CML/17/2009 & CML/18/2009, supra note 39, regarding the joint submission ofMalaysia and Vietnam to the CLCS, supra note 37, and the separate submission of Vietnam to the CLCS, supra note 38).

⁷⁹ Note Verbale CML/8/2011 from the Permanent Mission of the People’s Republic of China to the UN Secretary-General (Apr. 14, 2011), at http://www.un.org/Depts/los/clcs_new/submissions_files/submission_ mysvnm_33_2009.htm.

⁸⁰ Id.

⁸¹ These regulations were promulgated June 18, 1996, and effective as of October 1, 1996.

⁸² Id., Art. 2 (emphasis added).

⁸³ Id., Art. 1 (emphasis added).

⁸⁴ Surveying and Mapping Law of the People’s Republic of China (Order of the President No. 75) (adopted August 29, 2002; effective as of December 1, 2002).

⁸⁵ Id., Art. 2 (emphasis added).

⁸⁶ Id., Art. 3.

⁸⁷ See Carlyle A. Thayer, China’s New Wave of Aggressive Assertiveness in the South China Sea (paper presented at the Conference on Maritime Security in the South China Sea, sponsored by the Center for Strategic and International Studies, Washington DC (June 20–21, 2011)), at http://dotchuoinon.files.wordpress.com/2011/06/thayer-csis-south-china-sea.pdf; see also Vietnam Ministry of Foreign Affairs, Press Conference on Chinese Maritime Surveillance Vessel’s Cutting Exploration Cable of PetroViet Nam Seismic Vessel (May 29, 2012), at http://www.mofa.gov.vn/en/tt_baochi/pbnfn/ns110530220030; Vietnam Ministry of Foreign Affairs, Vietnam Oil and Gas Body Opposes Chinese Acts (June 9, 2011) at http://www.mofa.gov.vn/en/nr040807104143/nr040807105001/ns110608175949/view; Philippines Halts Tests After China Patrol Challenge (Mar. 8, 2011), at http://www.bbc.co.uk/news/world-asia-pacific-1267289); Ian Storey, China and the Philippines: Implications of the Reed Bank Incident (May 6, 2011), at http://web1.iseas.edu.sg/?p=3512.

⁸⁸ Hong Nong, Interpreting the U-shape Line in the South China Sea, China Us Focus, May 15, 2012, at http://chinausfocus.com/print/?id= 15964.

⁸⁹ China Urges Philippines Not to Escalate Tensions, Global Times, July 13, 2012, at http://www.globaltimes.cn/content/720964.shtml.

⁹⁰ See, e.g., China National Offshore Oil Corporation, Notification of Part of Open Blocks in Waters Under Jurisdiction of the People’s Republic of China Available for Foreign Cooperation in the Year of 2012 (June 23, 2012), at http://en.cnooc.com.cn/data/html/news/2012-06-22/english/322127.html.

⁹¹ See Ministry of Foreign Affairs of the People’s Republic of China, Foreign Ministry Spokesperson Jiang Yu’s Regular Press Conference on September 15, 2011 (Sept. 16, 2011), at http://www.fmprc.gov.cn/eng/xwfw/s2510/2511/t860126.htm.

⁹² Id.

⁹³ See Ministry of Foreign Affairs of the People’s Republic of China, Foreign Ministry Spokesperson Hong Lei’s Regular Press Conference on September 19, 2011 (Sept. 20, 2011), at http://www.fmprc.gov.cn/eng/xwfw/s2510/2511/t861146.htm.

⁹⁴ See, for example, the Philippines’ Note Verbale No. 000228, supra note 78, in response to the China’s Notes Verbales CML/17/2009 & CML/18/2009, supra note 39.

⁹⁵ UNCLOS, supra note 1, Arts. 56, 57.

⁹⁶ Id., Art. 62(2), (3).

⁹⁷ Ministry of Foreign Affairs of the People’s Republic of China, Set Aside Dispute and Pursue Joint Development (Nov. 17, 2000), at http://www.fmprc.gov.cn/eng/ziliao/3602/3604/t18023.htm.

⁹⁸ UNCLOS, supra note 1, Arts. 74(3), 83(3).

⁹⁹ See supra note 21; Embassy of the People’s Republic of China in the Republic of the Philippines, China has Sovereignty over Huangyan Island (June 8, 2012), at http://ph.china-embassy.org/eng/xwfb/t939694.htm.

¹⁰⁰ For a discussion of the seizure of Vietnamese fishing boats and China’s imposition of an annual unilateral fishing ban, see Carlyle A. Thayer, Recent Developments in the South China Sea: Grounds for Cautious Optimism? 24–28 (S. Rajaratnam Sch. of Int’l Stud., Singapore, Working Paper No. 220, 2010).

¹⁰¹ Such an arrangement may require Chinato employ normal baselinesin the Paracels. China currently employs straight baselines around the Paracels, connecting the outermost points of the outermost islands. Under UNCLOS the right to draw baselines encircling an island group at some distance from the mainland is reserved to archipelagic states made of exclusively of islands. See UNCLOS, supra note 1, Art. 46,

¹⁰² Id., Art. 286.

¹⁰³ Id., Art. 298(1)(a)(i).

¹⁰⁴ See China’s declaration of August 25, 2006, made after its ratification of UNCLOS, at http://www.un.org/Depts/los/convention_agreements/convention_declarations.htm#China%20after%20ratification.

¹⁰⁵ UNCLOS, supra note 1, Art. 288.

¹⁰⁶ The up-to-date official texts of declarations and statements that contain the choice of procedure under Article 287 of UNCLOS are available under “status of treaties” at http://www.un.org/Depts/los/convention_ agreements/convention_declarations.htm.

¹⁰⁷ UNCLOS, supra note 1, Art. 287(2). in any event, arbitration under Annex Vii would be the applicable procedure unless the parties to the case agreed otherwise or had both filed declarations under Article 287 accepting the International CourtofJusticeorthe International Tribunal for the Lawofthe Sea.Id., Art. 287(5). However, ITLOS may be asked to prescribe provisional measures pending the constitution of an Annex VII arbitral tribunal. Id., Art. 290(5).

¹⁰⁸ If the successors of that government in Taiwan decided to take the lead in bringing their maritime claims into conformity with UNCLOS, they might also recognize that Macclesfield Bank is not amenable to claims of sover eignty.

¹⁰⁹ See Foreign Ministry Spokesperson Jiang Yu’s Regular Press Conference on September 15, 2011, supra note 91.

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