EXCESSIVE MARITIME CLAIMS IN ASIA - Centre for International Law

Captain J. Ashley Roach, JAGC, USN (retired)
Global Associate
Centre for International Law
National University of Singapore
25 June 2013

OUTLINE
What are excessive maritime claims?
ASEAN + 3
Maritime zones
Baselines
Restrictions on navigation in territorial sea
Restrictions on navigation/overflight in EEZs
Archipelagos
Marine Scientific Research (MSR)
Surveying and Mapping
Restrictions on laying/maintenance of submarine cables
Underwater cultural heritage (UCH)
Compulsory Dispute Settlement (CDS)
Sources
2

Excessive Maritime Claims
Excessive maritime claims are those unilateral coastal
State claims inconsistent with the Law of the Sea
Convention by
ASEAN Members: Brunei, Cambodia, Indonesia, Laos,
Malaysia, Myanmar (Burma), Philippines, Singapore,
Thailand, Vietnam, and Timor-Leste, and by
China (including Taiwan), Japan and Korea (ROK and
DPRK)
Non-parties to LOS Convention: Cambodia, DPRK,
Taiwan
ASEAN States without any excessive maritime claims:
Brunei, Singapore, Laos (landlocked), Timor-Leste
3

U.S. Interests
Party to four 1958 Geneva Conventions on Law of
the Sea
Many provisions imported into 1982 LOS Convention
not complied with
Customary international law of the sea
Tribunal decisions
Other non-parties agree
Binding on all States
30 years of U.S. Presidential policy to abide by
traditional uses provisions
4

Territorial sea (TS)
Contiguous zone (CZ)
Maritime Zones
Exclusive economic zone (EEZ)
Continental shelf (CS)
Archipelagos
5

Baselines (1)
Three types of baselines:
normal (low-water line) (article 7)
straight baselines (article 8)
Straight archipelagic baselines (article 47)
Other straight closing lines
Mouths of rivers (article 9)
Bays (article 10)
Basepoints
Reefs (article 6)
Ports and roadsteads (articles 11-12)
Low-tide elevations (article 13)
6

Baselines (2)
“The Court [ICJ] observes that the method of straight
baselines which is an exception to the normal rules
for the determination of baselines, may only be
applied if a number or conditions are met.
“This method must be applied restrictively.
“Such conditions are primarily that either the
coastline is deeply indented and cut into, or that
there is a fringe of islands along the coast in the
immediate vicinity.”
Maritime Delimitation and Territorial Question between Qatar
and Bahrain, Merits, Judgment, 2001 ICJ Rep. 40, at 67, para.
212
7

Baselines (3)
Among ASEAN + 3 coastal States, only China does not permit
use of the normal baseline (PRC 1992 Territorial Sea Law,
article 3. Vietnam 2012 LOS Law, article 8, provides existing
baselines are straight baselines, but baselines in new areas
will be determined by the government (i.e., Gulf of Tonkin).
ASEAN + 3 coastal States that have drawn straight baselines
inconsistent with article 8:
Cambodia China
Malaysia Japan
Myanmar ROK
Thailand
Vietnam Taiwan
8

Territorial Sea (TS)
Maximum breadth of TS is 12 nm measured from
baselines determined IAW LOS Convention
No ASEAN + 3 State claims TS broader than 12 nm
As eight ASEAN + 3 States (and Taiwan) have
straight baselines not consistent with article 8, the
breadth of their TS is excessive
21

Contiguous Zone
Zone contiguous to territorial sea NTE 24 nm from
baseline from which breadth of TS is measured
Prevent or punish infringement of State’s customs, fiscal,
immigration or sanitary laws and regulations within its
territory or territorial sea
Does not include security
Security interest claimed by Burma, Cambodia, China,
Vietnam
CZ claimed by Burma, Cambodia, China, Japan, ROK,
Thailand and Vietnam are measured from straight
baselines not drawn IAW international law
22

Contiguous Zone (2)
Vietnam required
prior permission for warships to navigate in CZ
submarines required to navigate on the
surface and show flag in CZ
aircraft prohibited from being launched from or
taken aboard ships in CZ
ships to place weapons in non-operative
positions before entering contiguous zone
Decree No. 30/C, Jan. 1980
Not mentioned in 2012 Vietnam LOS Law
23

Navigation in TS
ASEAN + 3 States requiring prior permission for warships
to enter the territorial sea
Burma (1977 Territorial Sea Law, sec. 9(a))
China (1992 Territorial Sea law, article 6, 2 nd para.)
Malaysia (1996 article 310 declaration 4 applies to NPW)
Philippines (1968)
ASEAN + 3 States requiring prior notice of intention of
warships to transit the territorial sea
Indonesia (1962)
Republic of Korea (1978 Territorial Sea Act as amended,
article 4)
Vietnam (2012 LOS Law, article 12.2)
Taiwan (1998 Territorial Sea Law, article 7, 3 rd para.)
24

Navigation: EEZs
ASEAN + 3 State claiming FON in EEZ not include
military exercises or other activities which may affect the
rights or interests of the coastal State without its consent
Malaysia (article 310 declaration 3)
Thailand (article 310 declaration 4)
North Korea Military Security Zone 50 nm seaward of 12
nm TS prohibits navigation by warships and requires
prior permission for navigation by merchant ships and
civil aircraft
All surveys prohibited in DPRK EEZ by Decree Aug. 1977
Mapping and surveying in all PRC sea areas requires
prior consent. Mapping and Surveying Law, Presidential
Order No 75, article 2, effective 1 December 2002
25

Continental Shelf
China and ROK object to Japan’s extended
continental shelf claim from Okinotorishima as being
a rock under article 121(3) and thus impinges on The
Area
Malaysia claims the right to delineate the course of
submarine cables laid on the continental shelf
contrary to article 79(3) (1984 EEZ Act, sec. 22(1))
China claims the undifferentiated right to require its
authorization to lay any submarine cable on its
continental shelf (1998 Continental Shelf Act, sec.
11)
26

Archipelagos
Straight archipelagic baselines of Indonesia and
Philippines (as revised in 2009) appear consistent with
the Convention
Denying right of ASLP
Philippines (article 310 declaration 7)
Objected to by Australia, Belarus, Bulgaria, Czechoslovakia,
Russia, Ukraine, USA
Archipelagic sea lanes
Indonesia has partial designation (N-S) yet seeks to
constrain ASLP (article 53(10) + 2002 Regulation No. 37)
Not yet modified re Timor-Leste
Philippines seeks to designate 3 ASL w/o prior IMO
agreement (article 53(9) + Philippines Archipelagic Sea
Lanes Act (HB04153 (passed House 2012-01-26) +
SB2738 (hearings held 2012-04-27) 15 th Congress)
27

Philippines Draft Archipelagic Sea Lanes
29

Surveying and Mapping
China claims all surveying and mapping activities in
the territorial air, land and waters, as well as other
sea areas under PRC jurisdiction, by foreign entities
require approval
Surveying and mapping without approval is
considered a criminal offense, and violators can be
fined, ordered to leave the country, and/or
prosecuted under PRC law
China Surveying and Mapping Law, Order No. 75,
Aug. 2002,
http://www.asianlii.org/cn/legis/cen/laws/samlotproc5
06/
30

Underwater Cultural Heritage
Article 303(2) permits coastal States to extend their
CZ interests in archeological and historic objects
located in their CZ, but not seaward of the CZ (i.e.,
EEZ and CS seaward of 24 nm)
ASEAN + 3 claiming UCH in CZ
Malaysia (declaration 8 on ratification)
Taiwan (1998 TS/CZ Law, article 16)
ASEAN + 3 claiming UCH > CZ
Malaysia (declaration 8 on ratification)
31

Underwater Cultural Heritage (2)
2001 UNESCO Convention for the Protection of
Underwater Cultural Heritage (CPUCH) is
inconsistent with international law by requiring party
to exercise jurisdiction over
UCH on its continental shelf
sunken warships w/o owner State’s consent
Cambodia is only ASEAN + 3 State party to CPUCH
32

Submarine Cables (1)
Malaysia claims the right to delineate the course of
submarine cables laid on the continental shelf contrary to
article 79(3) (1984 EEZ Act, sec. 22(1))
China claims the undifferentiated right to require its
authorization to lay any submarine cable on its
continental shelf (1998 Continental Shelf Act, sec. 11)
China requires a permit for any cable ship to repair or
maintain submarine cables on its continental shelf
contrary to article 79(2)
Vietnam requires its consent to lay submarine cables in
its EEZ and on its continental shelf (2012 LOS Law,
articles 16.2, 2 nd para.; 18.4, 2 nd para.)
33

Submarine Cables (2)
Indonesia is required to permit maintenance and
repair of submarine cables
in its archipelagic waters existing at time its status as
an archipelagic State was recognized under Part IV on
prior notice (article 51(2))
On its shelf regardless of when laid (article 79(2))
Repair and maintenance of new submarine cables in
archipelagic waters and adjacent territorial sea is not
addressed in LOS Convention
In practice Indonesian permits to repair submarine
cables are excessively long in being granted
regardless of location
34

Dispute Settlement
Article 298(1) permits State party at any time to
declare it does not accept CDS with respect to
(a) sea boundary delimitation, historic bays or titles,
but must accept conciliation unless sovereignty or
other rights over continental or insular land territory
is in dispute
(b) disputes over military activities and law
enforcement activities re exercise of sovereign rights
or jurisdiction
(c) disputes of which UNSC is seized
35

Dispute Settlement (2)
ASEAN + 3 States opting out of CDS per paras. 1(a),
1(b) and 1(c) of article 298
China
ROK
Thailand
ASEAN + 3 States without article 310 declarations
Brunei Laos
Cambodia Indonesia
Japan Singapore
36

Sources
UN DOALOS National Legislation:
http://www.un.org/Depts/los/LEGISLATIONANDTRE
ATIES/asia.htm
UN DOALOS Law of the Sea Bulletin:
http://www.un.org/Depts/los/doalos_publications/los_
bult.htm
UN DOALOS Law of the Sea Information Circulars:
http://www.un.org/Depts/los/LEGISLATIONANDTRE
ATIES/losics.htm
UN DOALOS Table of Maritime Claims
http://www.un.org/Depts/los/LEGISLATIONANDTRE
ATIES/claims.htm
37

ASEAN LOS Legislation
Brunei
Territorial Waters of Brunei Act, 1982
Cambodia
Decree of the Council of State of 13 July 1982
Indonesia
Act No. 5 of 1983 on the Indonesian exclusive economic zone, 18
October 1983
Act No. 6 of 8 August 1996 regarding Indonesian Waters
Government Regulation No. 61 of 1998 on the list of geographical
coordinates of the base points of the archipelagic baselines of
Indonesia in the Natuna Sea
Indonesian Government Regulation No. 37 on the Rights and
Obligations of Foreign Ships and Aircraft Exercising the Right of
Archipelagic Sea Lane Passage through Designated Archipelagic
Sea Lanes, 28 June 2002
Laos (none – landlocked)
38

ASEAN LOS Legislation (2)
Malaysia
Exclusive Economic Zone Act, 1984, Act No. 311 -
An Act pertaining to the exclusive economic zone
and certain aspects of the continental shelf of
Malaysia and to provide for the regulations of
activities in the zone and on the continental shelf
and for matters connected therewith
Myanmar (Burma)
Law applicable to innocent passage through the
territorial sea (Territorial Sea and Maritime Zones
Law (Pyithu Hluttaw Law No. 3 of 1977))
Law Amending the Territorial Sea and Maritime
Zones Law of 5 December 2008 (The State Peace
and Development Council Law No. 8/2008)
39

ASEAN LOS Legislation (3)
Philippines
Presidential Decree No. 1599 of 11 June 1978 establishing an Exclusive Economic
Zone and for other purposes
Republic Act No. 9522: An Act 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 (2009)
Philippine Archipelagic Sea Lanes Act and Philippine Maritime Zones Act (pending)
Singapore
No. 1485-SINGAPORE MARITIME ZONES (Government Gazette of 30 May 2008)
Thailand
See http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/STATEFILES/THA.htm
Vietnam
Law of the Sea of Viet Nam, No. 18/2012/QH13, 21 June 2012
Timor-Leste
Law No. 7/2002: Maritime Borders of the Territory of the Democratic Republic of Timor-
Leste, 23 July 2002
40

China
+ 3 LOS Legislation
Law on the Territorial Sea and the Contiguous Zone of 25
February 1992
Declaration of the Government of the People's Republic of
China on the baselines of the territorial sea, 15 May 1996
Exclusive Economic Zone and Continental Shelf Act of 26
June 1998
Survey and Mapping Law of PRC, Order No. 75, effective
Dec. 1, 2002
Japan
Law on the Territorial Sea and the Contiguous Zone (Law
No. 30 of 1977, as amended by Law No. 73 of 1996)
Law on the Exclusive Economic Zone and the Continental
Shelf (Law No. 74 of 1996)
41

+ 3 LOS Legislation (2)
Republic of Korea
Territorial Sea and Contiguous Zone Act Law No. 3037,
Promulgated on 31 December 1977, Amended by Law No.
4986, which was promulgated on 6 December 1995
DPRK
Decree by the Central People's Committee establishing the
Economic Zone of the People's Democratic Republic of
Korea, 21 June 1977
Taiwan
Taiwan’s Maritime Claims, Limits in the Seas No. 127
(2005)
42

Limits in the Seas series
http://www.state.gov/e/oes/ocns/opa/c16065.htm:
Straight Baselines: Burma (No. 14, 1970)
Straight Baselines: People's Republic of China (No. 43, 1978)
Straight Baselines Claim: China (No. 117, 1996)
Straight Baselines: Indonesia (No. 35, 1971)
Straight Baseline and Territorial Sea Claims: Japan (No. 120,
1998)
Straight Baselines: Republic of Korea (No. 82, 1979)
Straight Baseline and Territorial Sea Claims: South Korea (No.
121, 1998)
Straight Baselines: Philippines (No. 33, 1973)
Straight Baselines: Thailand (No. 31, 1971)
Thailand Straight Baseline Claims (No. 122, 2000)
Straight Baselines: Vietnam (No. 99, 1983)
43

MCRM
US DOD Maritime Claims Reference Manual
Maritime claims of coastal States
http://www.jag.navy.mil/organization/code_10_mcrm.ht
m
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