On Dissection of Disputes Between China
and the United States over Military Activities
in Exclusive Economic Zone by the Law of the Sea
Jin Yongming
Abstract
In South China Sea, there are two different kinds of legal disputes between China and other counties, so different methods and solutions will be adopted to solve disputes in peaceful way. This thesis expounds the disputes between China and the USA over military activities in Exclusive Economic Zone according to regime of the Law of the Sea. Considering that China and the USA have many obstacles to make consensus by means of regime of international law, therefore they shall solve disputes through dialogue and consultation to seek common understanding based on principles of the Law of the Sea. Meanwhile, in order to prevent the marine accident, both parties shall establish communication and emergency response mechanism on marine issues, and the key point is to improve China’s policy and legal system on marine issues.
Key words : Exclusive Economic Zone, Military Survey, Military Drill,
Regime of the Law of the Sea
Recently, South China Sea issues have become hot points attracting attentions from international society and are in the trend of becoming more and more serious. On one hand, South China Sea issues are originated from unilateral actions and activities by some countries including strengthening resources development, invading and occupying parts of South China Sea islands and reeks, removing terminus set by China in South China Sea islands and reeks, trying to “safeguard” interests and rights on South China Sea by force and so on ; on the other hand, the so-called navigation freedom and safety ostensibly insisted in, joint military drill ceaselessly hosted and position on disputes resolution stood by overseas powers make South China Sea issues more serious. In other words, in South China Sea, there are two types of legal disputes. The first type is territory entitlement dispute, i. e. sovereignty adscription disputes over islands and reeks and disputes over maritime delimitation between China and some ASEAN countries ; the second type is dispute over military activities（military survey, jointly military drill and so on） between China and the USA over military activities in Exclusive Economic Zone. The USA said to maintain navigation freedom and safety in adjacent sea area of South China Sea, but in reality, it insists on the so-called military activities freedom in Exclusive Economic Zone.
Because the meaning and target of legal disputes over South China Sea are different, different solutions shall be adopted according to different types. For sovereignty adscription disputes between China and some ASEAN countries （Vietnam and the Philippines, etc）, we shall make consultation and negotiation with relevant countries and solve the problems based on international law and regional regimes ; for disputes over military activities between China and the USA, we shall review systemic provisions set forth in United Nations Convention on the Law of the Sea（hereinafter referred to as UNCLOS） including reaching consensus according to regime of Exclusive Economic Zone
and solving the problems through bilateral dialogue（Sino-USA maritime security, Sino-USA Asian-Pacific affairs consultation mechanism and so on）and consultation. However, according to international law including international systems and principles such as the United Nations Charter, UNCLOS, Declaration on the Conduct of Parties in South China Sea, we shall stick to and strive for peaceful resolutions to legal disputes over South China Sea. This thesis expounds disputes over military activities between China and USA according to regime of the Law of the Sea.
!．Is Military Survey a kind of Marine Scientific Research ?
In South China Sea, the important conflicts between China and the USA embody on the opposite opinion on whether a military survey shall get advance approval of coastal state or it can be conducted freely, and difference in whether information collection in the sky of Exclusive Economic Zone and military drill in Exclusive Economic Zone shall gain approval of costal state or they can be conducted freely. Now the author will take military survey and military drill as examples and analyze the meaning according to the law of the sea.
Because there is no such term as military survey in UNCLOS, so we can only expound it from the perspectives of peaceful uses of the sea and Marine Scientific Research.
１．Peaceful uses of the sea. In fact, the term of peaceful uses of the sea does not appear in Geneva Four Conventions on the Law of the Sea of１９５８.（１）
! Geneva Four Conventions on the Law of the Seas（１９５８）include Convention on the Territorial Sea and the Contiguous Zone, Convention on the High Seas, Convention on Fishing and Conservation of the Living Resources of the High Sea, Convention on Continental Shelf.
Although the word of peace is used in Antarctic Treaty, Moon Treaty, Seabed Arms Control Treaty and UN Assembly Resolutions and becomes a key word in discussion of international management by human beings in the field of common space, the concept of peaceful uses has not established in those treaties or resolutions.（２）
In Committee on the Peaceful uses of the Seabed and the Ocean Floor beyond the Limits of National Jurisdiction during the preparation conference on the law of the sea, there were some countries and their representatives who proposed plans on concept of peaceful uses of the sea. For example, at the conference on the law of the sea in１９７３, there was a representative making a proposal that the international seabed should be open to all countries and be used only for the peaceful purpose.（３）Such proposal is stipulated in Article８８
of UNCLOS after revised in the Conference on the Law of the Sea.（４）
Additionally, according to Paragraph２ of Article５８ of UNCLOS, the principle of peaceful uses of the sea is also applied to Exclusive Economic Zone, because it is stipulated in Paragraph２ of Article５８ that Article８８ and １１５ and other related rules of other international law are all applicable to Exclusive
! For Example, Paragraph I of Article I of Antarctic Treaty sets forth that Antarctica shall be used for peaceful purposes only. There shall be prohibited, inter alia, any measures of a military nature, such as the establishment of military bases and fortifications, the carrying out of military maneuvers, as well as the testing of any type of weapons. Paragraph２ of Article４of Moon Treaty provides for that the moon and other celestial bodies shall be used by all States Parties exclusively for peaceful purposes ; the establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military man uvres on the celestial body shall be forbidden.
" UN Doc. A/AC.１３８/SC. II/L.２７, Art.１８. Report of the Committee on the Peaceful Uses of the Sea-bed and the Ocean Floor Beyond the Limits of National Jurisdiction （１９７３）, vol. III, p.３４. Also see Ocean Policy Research Foundation, Guidelines for Navigation and Overflight in the Exclusive Economic Zone : A Commentary,２００６, pp.１６− ２１.
# Article８８ of UNCLOS stipulates that the high seas shall be reserved for peaceful purposes.
Economic Zone if they are not conflicting with this part.
Although UNCLOS stipulates the principle of peaceful uses of the sea, it fails to give details. The reasons are the following aspects : first, at that time, the USA and Soviet Union strongly required to use immense ocean space to the greatest extent to minimize the controlling space of costal states and gained common strategic interests ; second, countries had different opinions on the details on peace and military use which can be demonstrated in the fourth conference（１９７５）reviewing topic named peaceful uses of sea, peace and safety zone. In such conference, there were１７countries rendering opinions which can be divided into four types as follows :（５）
First one represented by Ecuador advocated demilitarized sea and exclusion of military activities. Secondly, Madagascar and the Philippines held that it was impossible to prohibit all military activities and unrealistic for absolute demilitarization, so they took the opposite position. Third one held the opinion to prohibit certain kinds of military activities. Madagascar and United Arab Emirates considered that drill, guided missile test and nuclear test shall be prohibited ; Iran and Pakistan advocated no offshore petrochemical facilities in Exclusive Economic Zone of a foreign country without permission. Fourthly, the USA and the Soviet Union thought that peaceful use, peace zone and military use were beyond the scope of such conference, which shall be discussed in a conference with topics such as disarmament and management of arms. Especially, the USA proposed the following warn, that is to say, if the conference of the law of the sea tried to discuss such complicated issues, it would only make the effort of consultation in Conference on the Law of the Sea end as soon as possible. Meanwhile, the USA considered that “peaceful
! See Moritaka Hayashi, Formation and Topics of Modern Law of the Sea, Shinzansya, ２００８, pp.２０６−２０７. See Official Records of the Third United Nations Conference on the
Law of the Sea, vol. V, pp.５６−６７.
use” did not prohibit military activities in general speaking, and conducting military activities for peaceful purpose was in conformity with the United Nations Charter and other international rules.
According to the aforesaid situation, the Conference on the Law of the Sea finally stipulates Article８８in UNCLOS.
In addition, in the late１９８０s, some developing countries proposed to add a general principle of nonuse of force in the law of the sea according to Paragraph４ of Article２ of the Untied Nations Charter. Such proposal was put forward again as a general principle applicable to all sea areas and finally stipulated in Article３０１of UNCLOS after amendment.（６）
In fact, international society has the following opinions on this provision, i. e., generally speaking, military activities in the high seas and Exclusive Economic Zone are not prohibited. Such opinion can be confirmed by UNCLOS. For example, Paragraph１ of Article５８ of UNCLOS stipulates that the freedom of navigation and overflight in traditional high seas can be exercised in Exclusive Economic Zone, and warship, as a part of these freedoms, customarily is permitted to conduct drill, patrol and supervision and so on in the high seas. These freedom are confirmed as freedom of the high seas by Article２of Convention on the High Seas of１９５８.（７）
Actually, Paragraph２ of Article１９ of UNCLOS does not regard any drill with arms, launching, landing or taking on board of any military device or any aircraft as innocent passage in the territorial sea. Article３０ of UNCLOS
! M. Nordquist, editor-in-chief, United Nations Convention on the Law of the Sea１９８２: A Commentary, vol. III（Dordrecht : M. Nijhoff, １９９５）, p.８９. For example, Article３０１ of UNCLOS sets forth that in exercising their rights and performing their duties under this Convention, States Parties shall refrain from any threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the principles of international law embodies in the Charter of the United Nations.
" M. Nordquist, editor-in-chief, United Nations Convention on the Law of the Sea１９８２: A Commentary, vol. V（Dordrecht : M. Nijhoff, １９８９）, pp.１５３−１５４.
stipulates that if any warship does not comply with the laws and regulations of the coastal State concerning passage through the territorial sea and disregards any request for compliance therewith which is made to it, the coastal State may require it to leave the territorial sea immediately. There is no similar provision in seas other than the territorial sea ; Article９５（Paragraph２ of Article５８）of UNCLOS stipulates that warships on the high seas have complete immunity from the jurisdiction of any state other than the flag state. In addition, Paragraph１ of Article２９８ of UNCLOS stipulates that for disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service, a State may declare in writing that it does not accept any procedure provided for by a compulsory procedures leading to binding award.
It is clear that although UNCLOS sets forth peaceful uses of the sea as a general principle and does not generally prohibit military activities in Exclusive Economic Zone except coexistence with use or threatened use of force in the United Nations Charter, not any form of military activities in any place is admitted because Exclusive Economic Zone is a kind of sea with special legal status where military activities shall be limited to some extent. The limitations are mainly as follows :
Firstly, rights and obligations of the costal State shall be due regarded ; provisions of the costal State and other laws and regulations shall be observed, for example, Paragraph３ of Article５８ of UNCLOS. But the problem is UNCLOS does not set forth details of “due regard” which becomes the disputed focus.
Secondly, the provisions on prohibition of abuse of right shall be applied. For example, Article３００ of UNCLOS provides that States Parties shall fulfill in good faith the obligations assumed under this Convention and shall exercise the rights, jurisdiction and freedoms recognized in this Convention in a
manager which would not constitute an abuse of right. In other words, the basic component for application of principle of abuse of right is that the abuse of right will cause losses to other state.
Although the USA is not a state party to UNCLOS, performance of treaty in good faith is a kind of obligation under international law, and many systems of UNCLOS have become customary rules, the USA shall observe. For example, Article２６ of Vienna Convention on the Law of Treaties sets forth that Every treaty in force is binding upon the parties to it and must be performed by them in good faith.
２．Relationship between Marine Scientific Research and Military Activities. I’d talk about the military activities by analyses the relationship between it and Marine Scientific Research.
Item F of Paragraph１ of Article８７ of UNCLOS regards freedom of Marine Scientific Research as one of freedom at the high seas. But what position Marine Scientific Research can stand in Exclusive Economic Zone is a question hard to define. The provisions relevant to Marine Scientific Research are set forth in Section１３of UNCLOS（Article２３８to Article２６５）.
In addition, UNCLOS does not define “Marine Scientific Research”. We can conclude from relevant articles, for example, Article２４３ and Paragraph３ of Article２４６, Marine Scientific Research shall be made for peaceful purpose and increasing scientific knowledge of the marine scientific research for the benefit of all mankind, the content of which includes studying the essence of phenomena and processes occurring in the marine environment and the interrelations between them.
Moreover, Item J of Paragraph２ of Article１９ of UNCLOS divides marine scientific research into research and survey activities. Item G of Paragraph１ of Article２１ of UNCLOS provides that the costal State may adopt laws and regulations relating to innocent passage through the territorial sea in respect of
marine scientific research and hydrographic surveys. The former is treated as a nocent activity and the latter is treated as an innocent activity. In other words, survey activity is treated as a nocent activity and hydrographic survey is treated as an innocent activity. Meanwhile, survey activity is a part of marine scientific research, so there are some problems in formulation and interpretation of articles which arise different opinions and practices of different countries.
Generally speaking, the so-called hydrographic survey refers to collection of information for making chart and navigation safety including collection of data in shallow sea area such as depth of water, submarine topography, velocity of seawater flow, hypo mode, danger in navigation.（８）But Section１３
of UNCLOS does not refer to survey activity, so it shall be beyond Section１３, i. e. it shall not be governed by Section１３.
The important issue in Exclusive Economic Zone is that whether the scientific research into marine natural environment except for hydrographic survey conducted by warship belongs to marine scientific research set forth in UNCLOS.
For this question, the USA, UK and some countries consider that the investigation made by a warship does not aim at military issues but marine scientific research which is different to military survey, so it is not governed by Section１３ of UNCLOS. In other words, the USA, UK and some countries separate military survey and marine scientific research and insist on principle of freedom. Most of developing countries regard military activities as a part of the whole marine scientific research and hold the opinion that these activities are certainly governed by Section１３ of UNCLOS. The specific limitations are as follows : marine scientific research shall be conducted exclusively for peaceful purposes ; marine scientific research shall not unjustifiably interfere
! J. A. Roach and R. W. Smith, Exessive Maritime Claims, International Law Studies, vol.６６, １９９４, p.２４８.
with other legitimate uses of the sea ; States and competent international organizations shall make available by publication and dissemination through appropriate channels information on proposed major programs and their objectives as well as knowledge resulting from marine scientific research ; marine scientific research in the exclusive economic zone shall be conducted with the consent of the coastal State ; and other various obligations.（９）
Publication of result of activities of warships, especially survey and gaining consent of the costal State in advance and relevant obligations are unaccepted by major marine powers, so in order to make military survey escape the regulation of Section１３ of UNCLOS, they always insist on principle of freedom. In other words, it is impossible for many marine powers to publicize survey result. It is hard for them to conduct survey with consent of the costal State in advance. They insist on principle of freedom to conduct survey. These are the main reasons why compromise on military survey can not be reached in conference on the law of the sea, so relevant issues can not be provided for.
In brief, whether military survey is included in marine scientific research is directly related to safety interest of relevant countries and has highly political nature, so it has little possibility to solve this problem within the law of the sea. However, it is a practical issue which can not be avoided, so it shall be judged according to situation of certain activities under Paragraph３ of Article５８, that is to say, whether rights and obligations of the coastal State or its safety are taken into consideration or due regarded in those activities."
! See Paragraphs１ and３ of Article２４０, Paragraph１ of Article２４４, Articles２３６ and ２５３ of UNCLOS.
" See Moritaka Hayashi, Formation and Topics of Modern Law of the Sea, Shinzansya, ２００８, pp.２２７−２２８.
!．Whether Military Drill is Peaceful Act or Provocative Act
Generally speaking, for military drill exercised in the territorial sea and exclusive economic zone in other country, we can only protest those which influence our national defense safety. As to the military drill exercised in exclusive economic zone of China, we shall express our concerns to the drill country hoping it respect our rights and interests in exclusive economic zone including national defense safety and solve the problems through dialogue and consultation.
Before military drill, the drill country is obliged to give notice on the time and areas to relevant countries through diplomatic channel. Now, the joint military drill between the USA and other countries is obviously beyond the scope of general military drill in terms of scale and frequency and has clear objectives and non-peaceful intention, so it attracts extensive attention. Especially, these military drills are near sea areas governed by China, their danger is more serious. Meanwhile, they will continue this type of drill in the future, especially this kind of act representing military power and solved by non-peaceful means seriously breaches the main aspect of consultation through dialogue and cooperation in international relations and principle of international law of settlement of disputes in a peaceful way at present. In other words, uses or threatened uses of force is unfavorable for settlement of disputes but causes the problem become more serious and settlement more difficult. This requires the USA to adopt equal attitude to negotiate and consult with relevant countries to avoid conflict more serious even arms race.
It’s a pity that there is no concept or term of military drill in the law of the sea. Still, we shall review it combining with other articles of the law of the sea. The military drill in general meaning refers to army training exercised by army troops, fleets and so on through imitating or setting actual combat. This
kind of drill needs occupy wind sea area in a certain period and excludes navigation, fishing and other activities from those sea areas during this period. The laws of the sea regulating military drill in international society are Convention on the High Seas（formulated in １９９５ and effective in １９６２）and UNCLOS（formulated in１９８２and effective in１９９４）. Article２of Convention on the High Seas stipulates that the freedoms in the high sea include freedom of navigation, freedom of fishing, freedom to lay submarine cables and pipelines, freedom to fly over the high seas besides other issues. These freedoms, and others which are recognized by the general principles of international law, shall be exercised by all States with reasonable regard to the interests of other States in their exercise of the freedom in the high seas. Article８７ of UNCLOS adds two freedoms（freedom to construct artificial islands and other installations permitted under international law, freedom of scientific research）besides the aforesaid four freedoms. It also provides that these freedoms shall be exercised by all states with due regard for the interests of other States in their exercise of the freedom in the high seas.
It is clear to see that Convention on the High Seas and UNCLOS give listed provisions on freedom in the high seas and require a state exercising such freedoms to reasonably take care of or give due regard to interests of other States in exercising of the freedom of the high seas. The so-called principle of freedoms in the high seas is just applied for protecting navigation and fishing and other interests of human being from the historical perspective, i. e. a principle formed for protecting uses of sea by human being as means of transportation or production.!
Military drill in the high seas is regarded as one of traditional freedoms in
! For content of principle of freedom in the high seas, see Order of the Law of the Sea and the International Tribunal, http://www.mofa.go.jp/nofaj/press/wakaru/topics.vol６１/index. html, visited on July２６, ２０１０.
the high seas. Its theoretical foundation is that there is no relevant provision on prohibition of military drill in the law of the sea, and the so-called non-prohibited act in the high seas is a freedom. There are also scholars holding the opinion that military drill in the high seas is not a freedom. Firstly, although military drill is exercised in fact, a consensus that it is a kind of freedom in the high seas has not formed. Secondly, military drill may influence resources of sea areas, even destroy marine environment, so it can not take into account interests of other states in exercising freedoms in the high seas. Thirdly, there already exist treaties on prohibition of military drill in certain places and mode, so military drill can be regarded as one of freedoms in the high seas.
It can clearly be seen that there are different opinions on military drill in the high seas and there lacks corresponding definite rule in international society, but in fact there are many states exercising military drill in the high seas which has become a kind of custom. Therefore, we shall pay more attention to military drill in exclusive economic zone.
For military drill in exclusive economic zone, there are three types of opinions in international society without uniform consensus. The first opinion holds that Article５８of UNCLOS principally admits military drill exercised by a foreign country in exclusive economic zone of other state without consent of the coastal state. This is the so-called freedom of behavior theory and the representative states are major marine powers. The second opinion is that whether to admit military drill shall be determined according to the nature of act. This is the so-called distinguished behavior theory which divided drills into different types. Drills launching fish torpedo, firing carronade and so on are prohibited ; military drills are construed as activities along with warships, which belongs to one of legal usage internationally ; drills using arms and explosives shall be consulted with the coastal state in advance ; and whether a
military drill and guided missile test interfere with other state’s uses of wide sea areas in a period of time. The third opinion considers that there is no definite provision on activities such as drill with arms in UNCLOS, i. e. whether it is the right of the coastal state or the using state is not defined. This is the so-called uncertain behavior theory. It is clear that there are different opinions on military drill in society, so there are different even opposite state practices.!
In the course of formulating UNCLOS, there is no discussion on military drill, so it can be reviewed from the perspective of peaceful uses of sea. The articles related to peaceful uses of sea are Article８８, Paragraph２ of Article５８ and Article３０１of UNCLOS. And as stated above, these articles do not define peaceful purpose, so clear definition has not still made. Therefore, military drill in exclusive economic zone shall be analyzed specifically according to its features and nature, especially we shall combine purpose of legislation on exclusive economic zone and relevant systems to make review and find solution.
Exclusive economic zone is a kind of special sea area between the territorial sea and the high seas and enjoys special legal status, which is reflected in jurisdiction of states. For example, the costal state has sovereign rights for purpose of exploring and developing natural resources, maintaining and managing seabed, subsoil, natural resources of their superjacent waters in exclusive economic zone, and sovereign rights of economic development and exploration in such zone such as producing energy by use of seawater, ocean current and wind power ; at the same time jurisdiction over protection and security of marine environment." Therefore, for military drill exercised by other state in exclusive economic zone of China, we shall make specific
! See Moritaka Hayashi, Formation and Topics of Modern Law of the Sea, Shinzansya, ２００８, pp.２１５−２１６.
" See Articles５５and５６of UNCLOS.
analysis on influence and nature of such drill.
From the above-mentioned information, we can learn that regime of exclusive economic zone includes the thought of uses of resources in most suitable and effective way, including bestowing sovereign rights over resources to the costal state which is obliged to give suitable maintenance and manage resources, therefore, we can analyze whether military drill imposes influence on maintenance and management of resources and marine environment to demonstrate that whether the using state gives due regard to rights and obligations of costal state.
It is remarkable that most issues related to military activities in the high seas and exclusive economic zone have political nature and most issues belong to military secret, so especially the aforesaid military powers and marine powers tried their best to avoid clear provision on military activities（including military drill）, which leads the efforts made by a part of developing countries for maximizing rights and interests in exclusive economic zone obstructed, so the relevant articles of UNCLOS have obvious deficits which lead to different interpretation and state practices. Therefore, for military drill, we shall make one judgment for an individual case according to status of nature of each military drill especially the provision set forth in Paragraph３ of Article５８ of INCLOS.!
It is gratifying that rights and obligations undistributed in exclusive economic zone even conflicts may be settled according to Article５９of UNCLOS, based on equality and by reference to all relevant situations, taking
! Paragraph３ of Article５８ of UNCLOS sets forth that in exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part.
into consideration the importance of the related interests on each party and the whole international society. This provisional article is instructive to issues on military drill with high-tech characteristics in new times.
In addition, for a dispute over military activities, a state may not accept compulsory procedure of UNCLOS through statement in writing,!so especially China and the USA shall build trust between two countries and specifically utilize marine safety consultation mechanism including conclusion of treaty like agreement on prevention of maritime accident to prevent escalation and worsen of marine disputes." During consultation, it shall be made clear that China does not intend to challenge the status of the USA and admit its effect in Asia, but China hopes the USA to understand and respect its reasonable concern to seek understanding and cooperation. The aim is to stable the Sino-US relationship and avoid conflict and confrontation.
In short, for military drill of other state in exclusive economic zone of China, our countermeasures are limited. Except for the aforesaid settlement
! See Paragraph１ of Article２９８. In addition, according to Article２９８, on Aug.２５, ２００６, China submitted a written declaration to the UN Secretary General that Chinese government does not accept any international judicial or arbitral procedure set forth in Setion２of Party XV of UNCLOS for any dispute（i. e. dispute related to ocean delimitation, territorial dispute, military activity）set forth in Item（a）,（b）and（c）of Paragraph１ of Article２９８ of UNCLOS. See China Submits Exceptions Declaration according to Article
２９８of United Nations Convention on the Law of the Sea, China Oceans Law Review２００７ （１）, p.１７８. It is clear that international judicial or artitral system is not applicable to the aforesaid ocean disputes related to China which shall be settled by related states through political methods. In other words, in case China does not withdraw the above-mentioned written declaration, related states can not apply international judicial or arbitral procedure to the aforesaid disputes.
" For example, the agreement on prevention of accident on the high seas and the sky concluded by and between the USA and Soviet Union plays an important role in guaranteeing marine safety. Later, international society concluded a lot of agreements according to this model, so in order to avoid disputes worsening and more serious, it’s important to conclude multiple and bilateral agreement on prevention of marine accident. See Moritaka Hayashi, Formation and Topics of Modern Law of the Sea, shinzansya,２００８, p.２２８.
through dialogue, China may also accumulate state practice step by step through continuing to issue strong protest and declaration to make it become hard law or unwritten law. In addition, as a state party, China may put forward amendment through simplified procedure to amend systems relevant to military drill to make the USA, a non-contracting party, embarrassed. However, although we can put forward amendment to UNCLOS through simplified procedure, the procedure on amendment is extremely demanding, so the possibility of adopting an amendment is very little.
!．Solution and China’
s Countermeasure to Dispute
over Military Activities
In view of the serious opposite position and difference between China and the USA on military activities in exclusive economic zone, we shall consider the solution to dispute over military activities and put forward specific countermeasure.
１．Solution to Dispute over military activities between China and the USA. In South China Sea, a lot of sea areas of China were delimited into exclusive economic zone of other state, and transnational enterprise from other states, EU and USA are exploring resources in South China Sea. At the same time, some ASEAN countries often illegally normal operation of our fishermen. The rich oil and gas and fishery resources in South China Sea have become objectives seized and developed by countries. According to prediction of geology department of China mainland, the storage of oil and gas in South China Sea is about４．２billion tons including ３．５billion tons in sea areas near Nansha Islands.! In addition, South China Sea is an important passage for
! See Zhao Lihai, Research into Ocean Law Issues, Peking University Press, １９９６, p.２３. ４９（４９）
important navigation because the aggregate tonnage of ships passing Nansha waters equals to half the aggregate tonnage of ships all over the world, which is twice of that in Suez Canal and triple of Panama Canal.!
It should be mentioned that maintenance the peace and stability of South China Sea especially Nansha waters is conformity with common interest of countries including the USA. Especially for Southeast Asia with its fast economic development, its demand for energy resource including marine resource is increasing day after day, so they must make cooperation to guarantee the passage transportation safety in such waters.
Interests of the USA in South China Sea are mainly reflected in military survey in and fly over exclusive economic zone, which has serious opposite stand with China. For example, military survey of a warship named Impeccable and EP-３collision are events arising from difference between China and the USA in military survey and reconnaissance in exclusive economic zone. The USA considers reconnaissance by airplane in the sky of exclusive economic zone belongs to freedom of flight among freedoms in the high seas. China regards it as unfriendly. Such reconnaissance is far beyond freedom of flight and constituting an abuse of right. Other state using sea shall take interests of the coastal state into consideration and such uses shall be for peaceful purpose. In the same way, the USA considers that military survey in exclusive economic zone of China can be exercised without consent of the coastal state in advance ; such activity is a freedom, so it is legal. China holds that survey in exclusive economic zone（no matter it is marine scientific research or military survey）must get consent of the coastal state, otherwise it is illegal. Espionage which collects information is objected for the reason of damaging defense or safety of the coastal（for example, Item C of Paragraph２
! See Jin Yongming, China Shall Handle Nanhai Issues by Different Level, Oriental Morning Post, July２９, ２０１０, A１８.
of Article１９）. At the same time, because it is a kind of activity unforeseen during period of conference of the law of the sea, relevant countries may settle it according to Article５９of UNCLOS.
It can be seen that the opposite stand and difference between China and the USA in knowledge and understanding in military activities in exclusive economic zone may be settled by use of the strength of international society including amendment of system of UNCLOS on marine scientific research, adding systemic rules on military activities and through bilateral marine safety consultation mechanism. For prevention of maritime accident, both parties shall try hard to build maritime accident prevention contact and emergency response mechanism.
２．Suggestion on China’s Solution to South China Sea issues. In the situation that the international, regional and bilateral systems on marine issues can not be created or amended, in order to handle and treat marine issues include South China Sea issues, China shall further improve its relevant marine policies and legislations by grasping the opportunity of South China issues. The specific suggestions on solution are mainly as follows :
Firstly, Suggestion on Improvement of Marine Policies. China shall make clear the legal status and nature of U-shape line delimited in South China Sea ; publicize policy documents on South China Sea ;!formulate and carry out national marine development strategy and its plan."
Secondly, Suggestion on Improvement and Amendment of Legislation.
! In order to state China’s standpoint and attitude on reform of the United Nations, China issued Document on Standpoint of China on Reform of the United Nations. The issue of such document plays an important role in helping other states understand China’s standpoint and attitude on reform of the United Nations and received a lot of praises from international society. For relevant details, see Hou Fang, etc, International Law in６０Years in New China, Shanghai Academy of Social Sciences Press, ２００９, pp.９３−９４. It is clear that there is a precedent that China issued a document stating its standpoint on reform of the United States, so it’s impossible for China to issue policy document on marine issues.
China shall publicize the baselines of territorial sea of Nansha Islands ;" formulate basic law of the sea managing marine issues including establishment of an organ like Committee on National Ocean Affairs ; enact marine safety law ; amend and improve relevant laws and regulations including Law on the Exclusive Economic Zone and the Continental Shelf and Provisions on the Administration of Foreign-related Maritime Scientific Research and so on ; formulate Cruise and Law Enforcement in Waters and so on.
Thirdly, Suggestion on Cooperation between Taiwan and China Mainland on Marine Issues（South China Sea Issues）. Because the policy and legal stands between Taiwan and China Mainland are similar and there has already been cooperation practice on marine issues, cooperation between Taiwan and
! Chapter１４ of Outline of the Twelfth Five-year Plan for National Economic and Social Development of the People’s Republic of China adopted by４thMeeting of１１th People’s
Congress sets forth Promotion of Marine Economic Development as a single chapter and clearly states that China shall plan in entity the land and the sea to formulate and carry out marine development strategy, improve marine development, control and comprehensive management capability. See http://www.gov.cn/test/２０１１-０３/１６/content_１８２５９４１_４.htm, visited on Mar.２２, ２０１１.
" Chinese government issued Declaration of Chinese Government on Baseline of the Territorial Sea of China on May１５, １９９６, declared parts of baseline of the territorial sea of China mainland and baseline of the territorial sea of Xisha Islands, but failed to declare baseline of the territorial sea of Nansha Islands. The aforesaid declaration sets forth that Chinese government will declare other baselines of the territorial sea of China again, so there is legal foundation for Chinese government to declare baseline of the territorial sea of Nansha Islands. But China shall make good coordination with Taiwan, because The First Batch of Baseline of the Territorial Sea, Edge of the Territorial Sea and Contiguous Zone publicized by Executive Yuan of Taiwan Region on Feb.１０, １９９９ has clear provision on baseline of the territorial sea of Nansha Islands that all islands and reeks of Nansha Islands within the traditional U-shape Line are the territory of China, and the baseline of the territorial sea is delimited according to straight baseline, normal baseline and combined baseline method, the related base point name, geographical coordinates and chart will be publicized additionally. It should be mentioned that China mainland and Taiwan region are able to coordinate issues on baseline of the territorial sea of Nansha Islands through communication and negotiation, because there is a precedent that China mainland and Taiwan region had good privity and cooperation on base point of the territorial sea of Diaoyu Islands and its subsidiary islands.
China Mainland on marine issues is necessary and feasible. The author suggests that Taiwan and China Mainland may make normal cooperation in fields such marine environment, marine scientific research, marine investigation, marine fishery, materials supply, marine salvage, disaster prevention, combating piracy, obey the principle of easy first and difficult later and follow in proper sequence. The specific countermeasure is to authorize Strait Exchange Foundation and Association for Relations across the Taiwan Strait to conclude cooperation frame agreement on marine issues to jointly protect marine interest of Chinese nationality.
Fourthly, Suggestion on Military Force. When disputes over South China Sea can not be settled by peaceful means, and other state challenges our marine rights and interests repeatedly and goes beyond the underline to seriously damage our marine rights and interests, China shall give appropriate counterattack by military force to protect sovereignty and integrity of territory. Therefore, China shall develop military force, meanwhile, in order to enhance mutual understanding and trust, China shall also take active part in cooperation in international marine safety.
!．Conclusion
China faces many marine issues, the settlement of which needs support from theory and system of the law of the sea. But the law of the sea is not omnipotent and the law is always hysteretic, therefore, in the situation that international, regional and bilateral agreements or systems on marine issues can not be amended or improved, it is especially important to further improve national marine policies and legislations.
As to South China Sea issues, China shall take measures to avoid its internationalization, complication and enlargement issues, therefore, it is
important to avoid worsening South China Sea before its final settlement by formulating cooperation agreement or work agreement of lower level and field based on the principle of Shelving Disputes and Joint Development, and trying hard to conclude a legally binding agreement. Meanwhile, China shall set dialogue and consultation mechanism with the USA on military issues to enhance mutual trust, seek understanding and consensus, avoid misjudgment and conflict, maintain peace and stability of South China Sea especially guarantee navigation safety and freedom in South China Sea, maintain common interests of international society.
Although China insists on peaceful means to solve dispute related to marine issues, when disputes over South China Sea issues can not be solved in peaceful means, and other state challenges China, damages our sovereignty and integrity of territory, China shall appropriately use military force. At the same time, China shall strengthen cooperation on marine issues between Taiwan and China Mainland to jointly safeguard interests of Chinese nationality.
The author considers the important task of China for marine issues is to formulate national marine development strategy and its plan, especially issue policy documents on marine issues including South China Sea issues recently, and make more publicity. Meanwhile, China shall take effective measures to strengthen cooperation on marine issues between Taiwan and China Mainland.
（Jin Yongming, Associate Professor, Institute of Law of Shanghai Academy of Social Sciences, Research Fellow of Academy of Ocean of China）
