Research On The Cooperation Regime In The Enclosed Or Semi-enclosed Seas

The booming growth of world population and the degradation of land resources has made the exploration and exploitation of marine resources a general trend nowadays.Ocean has become an important space and resource base for the economic and social development of all countries in the world.Enshrined in the Part IX of the United Nations Convention on the Law of the Sea(hereinafter referred to as “UNCLOS” or “the Convention”).Part IX is composed by two articles,the definition and cooperation of States bordering enclosed or semi-enclosed seas,respectively.Focusing on the enclosed or semi-enclosed seas,this dissertation summaries the origin and development of cooperation regime in the enclosed or semi-enclosed seas and analyzes the nature and status of this regime,as well as its application in the typical enclosed or semi-enclosed seas in the world.The final purpose of this dissertation is to apply the cooperation regime and the positive experiences gained in its application worldwide to the South China Sea,with the expectation that the cooperation of States bordering the South China Sea could become a successful model of enclosed or semi-enclosed seas regional cooperation.This dissertation divides into five chapters except the introduction,discoursing on the definition of enclosed or semi-enclosed seas in international law,the establishment and influence of cooperation regime in the enclosed or semi-enclosed seas,the nature and status of cooperation regime in the enclosed or semi-enclosed seas,the case analysis on the cooperation regime in the enclosed or semi-enclosed seas,and the application of cooperation regime in the enclosed or semi-enclosed seas to the South China Sea.The introductory part discusses the origin,significance,current research status both in China and abroad,methodology and innovation of the topic discussing in this dissertation.An enclosed or semi-enclosed sea is a special kind of sea zone in respect of its geological and ecological circumstances.In most cases,States bordering enclosed or semi-enclosed seas have complex disputes with each other concerning territorial and maritime delimitation.Besides,they are also confronted with issues related to marine environmental pollution,marine living resources depletion and marine scientific research.South China Sea,defined as a typical semi-enclosed sea in accordance with the UNCLOS,faces the challenges of all the above-mentioned problems.China should fully recognize the opportunities,legally and institutionally,of regional cooperation and development in the South China Sea brought aboutby the cooperation regime of bordering States in the enclosed or semi-enclosed seas.As one of the most influencing bordering States in the South China Sea region,China should make the utmost use of the cooperation regime in the enclosed or semi-enclosed seas in order to mitigate the conflicts between the bordering States in the South Chin Sea region and promote regional cooperation.To begin with,this dissertation analyzes historically the origin and establishment of enclosed or semi-enclosed seas cooperation regime.Then,it conducts the research on the application of cooperation regime in the typical enclosed or semi-enclosed seas in the world,by means of comparative study on a case-by-case basis.Lastly,this dissertation,in a pragmatic way,offers some feasible advice on the development of regional cooperation in the South China Sea.The First Chapter examines the definition of enclosed or semi-enclosed seas in international law,UNCLOS specifically.The idea of enclosed or semi-enclosed seas was drawn attention for the first time during the First United Nations Conference on the Law of the Sea,which was about a piece of advice suggesting the establishment of a special navigation regime in some certain sea areas with a relatively enclosed nature.However,the advice failed to acquire supports by most countries.During the Third United Nations Conference on the Law of the Sea,States participating the conference reached a consensus on the legal definition of the enclosed or semi-enclosed seas.The definition was codified in the Article 122 of the UNCLOS entitled as Definition.In accordance with this Definition,a sea constitutes an enclosed or semi-enclosed sea under the UNCLOS shall meet the following requirements.Firstly,multiplicity of riparian states,which means that an enclosed or semi-enclosed sea shall be surrounded by at least two states.Secondly,small area,which means that an enclosed or semi-enclosed sea shall be a gulf,basin or sea,instead of an ocean.Thirdly,relatively enclosed nature,which means that an enclosed sea shall be connected to other seas or oceans by a narrow outlet.Or fourthly,high percentage of coverage of sea areas under the jurisdiction of riparian states,i.e.,a semi-enclosed sea shall be consisting entirely or primarily of the territorial seas and exclusive economic zones of the riparian states.Among those,the third and fourth requirement are in a selective relationship.In other words,any sea area,as long as its geological circumstances meets the first,second and third requirement constitutes an enclosed sea.For those whose geological circumstances meet the first,second and fourth requirement constitute semi-enclosed seas.The Definition clause of enclosed or semi-enclosed seas indicates some particularities in respect of its title,position in theConvention,introductory clause and structure.The Second Chapter illustrates the establishment and influence of cooperation regime in the enclosed or semi-enclosed seas.The maritime cooperation has been developed as the emergence of increasingly serious marine crises.An enclosed or semi-enclosed sea is a particular sea area delineating by its geological circumstances instead of the distance measured from the baselines.This kind of seas shares the similar characteristics including small and relatively enclosed sea area,a large number of riparian states,high population density in the coastal area and busy marine transportation function,which generates a series of special marine crises,e.g.,fragile marine ecological system,heavy marine environmental pollution and fierce conflicts in territorial and maritime disputes.States participating the Third United Nations Conference on the Law of the Sea had different opinions over the question that whether or not a special regime different from the general rules of the Convention shall be set up in the enclosed or semi-enclosed seas.After several sessions of discussions and negotiations,Article 123 cooperation of States bordering enclosed or semi-enclosed seas has finally come to its conformation.Both the general and cooperative contents are embedded in the Cooperation clause.The general content reveals that other than the establishment of special rules in the enclosed or semi-enclosed seas,the general rules articulated in other Parts of the Convention are applied equitably thereto.The cooperative content indicates that States bordering enclosed or semi-enclosed seas should cooperate when exercising and performing their rights and obligations under the Convention.The Third Chapter investigates the nature and status of cooperation regime in the enclosed or semi-enclosed seas.It is a controversial issue that whether the nature of cooperation between States bordering enclosed or semi-enclosed seas is an international obligation,or merely an exhortative suggestion.After the application of treaty interpretation rules stipulated in the Vienna Convention on the Law of Treaties,the cooperation of States bordering enclosed or semi-enclosed seas is not an international obligation with binding effect.However,since the general rules articulated in other Parts of the Convention are applied equitably to the enclosed or semi-enclosed seas,cooperation of bordering States in the field of marine living resources preservation,marine environmental protection and marine scientific research,leads to certain legal implications.In addition,bordering States undertake the obligation of coordination in the preservation of marine living resources,protection of marine environment and marine scientific research,which are in low-sensitivity but related to thecommon interests of all bordering States,with the purpose of promoting cooperation.The obligation to coordinate simply requires States bordering enclosed or semi-enclosed seas to make their best efforts to the realization of cooperation.During this process,bordering States have to comply with the principle of good faith in international law.In accordance with pacta tertiis nec nocent nec prosunt,there is no doubt that the cooperation regime is legally binding on the State Parties of the UNCLOS,while it cannot create either rights or obligations to the non-contracting States.However,for the consideration of national interests and the common interests of the region as a whole,non-contracting States bordering enclosed or semi-enclosed seas might voluntarily participate in the regional cooperation in the governance of enclosed or semi-enclosed seas.The Fourth Chapter demonstrates the case analysis on the cooperation regime in the enclosed or semi-enclosed seas.The application of cooperation regime in the enclosed or semi-enclosed seas is implemented on both the global and regional level.On the global level,it is important to put emphasis on the overall coordinating and governing function of the United Nations in the battle against marine crises.On the regional level,considerations should be given to the essential function of marine regional cooperation in the special area of enclosed or semi-enclosed seas.In comparison with international cooperation on the global level,regional cooperation,which is a crucial method in governing the enclosed or semi-enclosed seas,shows its advantages in the following grounds.Firstly,geological vicinity easily generates mental recognition.Secondly,common interests of the region easily facilitate cooperation.Thirdly,regional cooperation is more controllable and well-directed.Fourth,respect to the geology and ecology integrity.In the support and coordination by the United Nations and its affiliated institutions,several effective and fruitful regional cooperation programmes have been developed by the bordering States in some enclosed or semi-enclosed seas concerning marine environmental protection,marine living resources preservation and marine scientific research.This programmes include Regional Seas Programme by the United Nations Environment Programme,Fisheries preservation and management projects by United Nations Food and Agriculture Organization,and marine scientific research coordination conducted by the Intergovernmental Oceanographic Commission of the United Nations Educational,Scientific and Cultural Organization.The Mediterranean and the Baltic have established a rather sophisticated legal regime regulating regional cooperation in the field of marine environmental protection and marine living resources preservation and management.These cooperation practices could be treated as references to other enclosed or semi-enclosed seas.Taking into account that the distinction between marine scientific research and military surveys is quite vague and blurred in the enclosed or semi-enclosed seas,it is of great necessity to promote the cooperation between bordering States and States bordering enclosed or semi-enclosed seas and non-bordering States in the marine scientific research activities.Only by this means can the misunderstandings be eliminated and mutual complementarity be achieved by win-win cooperation.The Fifth Chapter highlights the application of cooperation regime in the enclosed or semi-enclosed seas to the South China Sea.South China Sea is a typical semi-enclosed sea defined by the UNCLOS,which is confronted with a series of problems including disputes between bordering States in territorial and maritime delimitation,pollution of marine environment,depletion of marine living resources especially fisheries,and malicious involvements of extraterritorial powers.Although some bordering States in the South China Sea have concluded some preliminary bilateral agreements and cooperation willingness dealing with the marine environment and fisheries,more well-directed and legally binding international and regional treaties are still in demand in the South China Sea in respect of marine environmental protection,marine living resources preservation and marine scientific research.The cooperation between the bordering States in the South China sea is of necessity and feasibility.In this process,it is primary to borrow the positive experiences gained during the regional cooperation practices in some other enclosed or semi-enclosed seas.Then combines the positive experiences mentioned-above with the actual circumstances of the South China Sea.When developing South China Sea regional cooperation,different patterns and levels of cooperation are applied to different waters within the nine-dash line based on their different legal status.Furthermore,In the premise of compliance with international law including the UNCLOS,in accordance with the principle of gradual and orderly progress,South China Sea regional cooperation is proceeding from preliminary phrase to the medium developing phrase,and finally to the full realization of cooperation in the region.China should act in good faith and play a leading role in the development of regional cooperation in the South China Sea.