| The research on the delimitation of continental shelf brings great strategic value to China. As one of the biggest ocean States, China has acquired a vast broad coastal area, whereas the delimitation of the continental shelf is in dispute with her neighboring States throughout the whole continental shelf area, from the Yellow Sea, the East Sea to the South Sea. This paper chooses the principle of delimiting the continental shelf as a primarily theoretical window. Under the auspices of analyzing the principle historic driving force as well as the practical developments, this paper intends to demonstrate the trajectory of the principle from its embryo to current status quo. With the summing up of the principle value from a series of cases tried by the International Court of Justice and ad hoc arbitral tribunals, this paper is also intended to provide some valuable ideas for contemplating China’s continental shelf delimitation activities. However, by virtue of the structure, the outer continental shelf regime has been outlined in this paper. This paper adopts the analogy, induction and deduction as a logical research approach, objectively analyzes all the cases related to the continental shelf delimitation, reveals the interior relationships between different principles and explores the influence on the continental shelf delimitation trigger by different principles.This paper consists of five chapters.The first chapter focuses on the historic scenario and development of the continental shelf legal regime, through the interpretation on its geographical concept and legal concept with the data and charts. The author arrived at the conclusion that the formation of the continental shelf is inseparable from man’s knowledge of the ocean and the increase of their technical exploitation level by exploring the historic background as well as the developing process of the continental shelf. From the fairly early stage of the Truman Proclamation to the Continental Shelf Convention to the United Nations Convention on the Laws of the Sea, the author chronologically details in the original driving forces behind the continental shelf legal regime development. In addition, during the discussion of the continental shelf legal regime, the author focuses on the distinction between the continental shelf delimitation principle and its method. It is held that the delimitation principle is able to and should only in law be the resolution to the political and legal issue, however, the delimitation method refers to the technical means of mapping methods and composition. In other words, the principles for the delimitation are legally binding to the delimitation States involved, which are able to identify, adjust and standardize the specific delimitation methods. In terms of the delimitation methods, it is merely aimed to pragmatically resolve the problem from a technical angle within the framework of the delimitation principle, which in itself lacks of any function of legal norms, and therefore it is undoubtedly in absence of any legal binding forces to the States in question.The second chapter centres on the specific analysis of the natural prolongation principle of continental shelf delimitation. By exploring and analyzing the definition, and origins of the natural prolongation principle, it concludes that the natural prolongation principle in essence belongs to the State that enjoys sovereign rights of the continental shelf. Since the late 1970s, a large number of cases and the delimitation of national practice development virtually weakened the importance of the natural prolongation principle to some extent during the continental shelf delimitation activities. For instance, in the Libya/Tunisia case (1982), the ICJ took the view that in some circumstances the distance was the right basis for coastal States, which is not within the jurisdiction of the natural prolongation. In the Libya/Malta case (1985), ICJ formally held that the distance standard had replaced natural prolongation as the right basis within 200 nautical miles of continental shelf, and within that scope all the rights allegations could only be delimited by the distance measured from the State’s coast, which was nothing to do with the geological or geomorphological features. However, the author is of the opinion that even though the status of the natural prolongation principle has undermined, it is still an important principle for the continental shelf delimitation. Natural prolongation has never been replaced by the distance of 200 nautical miles, both of which are the basic elements of the continental shelf legal norm.The third chapter describes the principle of equidistance delimitation of the continental shelf. The Article starts from the concept and the formation of equidistance in conjunction with the customary international law and State practice, and concludes that the equidistance principles are not part of the customary international law. It is the author’s view that, although from a methodological view the equidistant method to resolve the continental shelf boundaries disputes, and it also can under certain circumstances, achieve a fair result from the delimitation process. But whether the final delimitation of the continental shelf applies the equidistant method or other methods, they are all aimed to properly reflect the specific conditions in each case by the delimitation of the geographic and other special circumstances; it is entirely the embodiment of the equitable principle in the continental shelf delimitation. The equidistance principle could not be divorced from the guiding from the equitable principle, while the equity per se requests the first positive acknowledgement of the fair nature of the continental shelf during its formation, and to ensure that those characteristics and requirements are implemented during the practical delimitation activities. Any pursuit of equally delimitation by numbers but disregarding the continental shelf geographical features and others is not de facto equitable. Moreover, the equidistance principle has never been developed into a real principle under the international law, it is merely subordinated to the equitable principle, whereby it acts as a specific rule or method. Although in practice the equidistance/special circumstance principle is frequently applied, in itself it does not have any mandatory law or any special legal status. This is not on par whining comparing to the equitable principle in the delimitation of the continental shelf, both in status and effect.The fourth chapter addressed the equitable principle of the continental shelf delimitation. The Article starts with the equitable definition, the Court’s understanding process by arriving at that it is the basic principle of the continental shelf delimitation throughout the whole delimitation process. It not only determines how to select the specific method of delimitation, but also acts as a measurement criteria used to determine the delimitation outcome. The equity concept has formed as part of international law, which is not only reflected in the delimitation of the continental shelf in international conventions, but also in many coastal countries’delimitation practice. The equity could not be explained in the abstract, so it must be contemplated by interlinking with specific "relevant circumstances" factors in a view to achieve an equitable result. Delimitation of the continental shelf and the continental shelf complex and diverse characteristics are closely linked, such as the relevant coast, geological features factors, islands and equal protection of resources and other factors. Delimitation of a continental shelf by agreement is a primary obligation to maintain an equitable delimitation result; the natural prolongation principle mirrors the natural equity; the equidistance principle is per se a delimitation method to secure equity; the proportional delimitation is to ensure equitable continental shelf delimitation results as a specific test method.The most recent international judicial practice shows that ICJ is committed to taking certain measures to establish some obvious consistency as well as the mandatory measures, with the purpose of making the law transparent and predicable in some respects. Given current international law, either Article 6 of the 1958 Continental Shelf Convention, or Article 83 of the 1982 United Nations Convention on the Law of the Sea, is granted with the considerable independence. However, both of them are purported to replace the general regulation of the customary international law principle during the continental shelf delimitation. In a specific case, the debate as to whether the disputed State is a signatory State of Continental Shelf Convention or United Nations Convention on the Law of the Sea does not really matter due to the current tendency that the conventions or customary international law can be put aside when relying on the general principles of delimitation of the continental shelf. However, the recent decision issued by the ICJ reveals that the Court increasingly tends to apply the equidistance line as a temporary delimitation line between the opposite States, in fact, it shows a similar effect in line with Article 6 of the 1958 Continental Shelf Convention. Therefore, equitable/all relevant circumstance principles and the equidistance/special circumstances principle indicated an increasing convergence in practice, the principle of natural prolongation gradually weakened and downgraded to a status as the factors where the equitable principle ought to contemplated, while the equidistant/midline became a practical method under the equitable principle.With the enrichments of a single maritime boundary during the international judicial practice, the ICJ increasingly tends to draw a temporary midline as the first step after analyzing each case. Once the midline is in place, the court will combine the relevant circumstances to test whether the delimitation result is equitable, if so, then the midline will be retained; if not, the court will adjust that line until the court is satisfied. In terms of the specific adjustment methods, it may be that the middle horizontal line is adopted to close the coast towards a certain State in a view to reduce the effect triggered by the geological structure to delimitation, or stop the midline adjustment from scratch. The equidistance/special circumstances principle is a specific method to achieve an equitable delimitation result, by complying with the requirements of equity in order to ensure its objective and result.After nearly 40 years judicial practice with a dozen cases, the ICJ and arbitral tribunals have achieved a fairly reliable resolution when coping with the legal principle, the methods and the relevant factors which shall be taken into account during the continental shelf delimitation. However, it still remains somewhat ambiguous as to what types of factors ought to be contemplated and how their influence work. The author thoroughly analyzes the principles on the continental shelf delimitation, in conjunction with a series of cases tried by ICJ and the arbitral tribunal after 1969. Namely, it contains the agreement obligation, natural prolongation principle, equidistance principle and the equitable principle. The paper forges on the tendency of the principle in the ambit of international practice with the conclusion that: the ICJ tends to adjust their previous attitude towards the natural prolongation principles during their most recent cases, which reflects the grim future of the natural prolongation principle; equidistance/special circumstance principle has been significantly enriched in international law theory as well as practice, which is mirrored by the facts that the said principle has been widely applied during the coastal nations’bilateral delimitation treaties, and the ICJ and arbitral organs are inclined to affirm that principle embodied in their matured“two-stage delimitation approach”; the equitable/all relevant circumstance principle is still the cornerstone of the continental shelf delimitation, and the proportional delimitation approach becomes the overwhelming methodology; the equidistance/special circumstance principle and the equitable/all relevant circumstance principle are on the consolidation appliance tendency; a single maritime delimitation is becoming popular.The fifth chapter centers on the proper continental shelf delimitation principles for the Yellow China Sea, the East Sea and the South Sea respectively. Notably, China shall adopt the equitable/all relevant circumstance principle on the Yellow China Sea continental shelf delimitation with the Democratic People’s Republic of Korea and the Republic of Korea, whilst applying the claims of proportional coastal line as supplementary to defeat the equidistance/special circumstance principle; on the East China Sea, China shall adhere to the principles of natural prolongation and equitable/all relevant circumstances as a whole. With the supporting scientific evidence of the Okinawa Trough on geological and geomorphic characteristics, China shall firmly deny the allegation of“the same continental shelf shared by China and Japan”, consequently defeat the appliance of equidistance/special circumstance principle into the continental shelf on East China Sea. In addition, without prejudice to allegation that the sovereign of Diaoyu Island belongs to China, China could take a“zero effect”of that island during the continental shelf delimitation on a reciprocal basis, and the purpose of that proposal is to make some breakthrough for Sino-Japanese negotiation. The scientific research activities on the East China Sea shall be further intensified in a view to prepare for the proportional coastal line allegation as supplementary strategy. In terms of the South China Sea, China shall insist on the equitable/all relevant circumstance principle by the allegations on“Nine Traditional Discontinuous Boundary Lines”and the historic rights, meanwhile, it would be advisable to abandon the natural prolongation principle in the South China Sea. China shall take a more flexible attitude to various islands in the South China Sea and treat those islands with different effects on the maritime delimitation. The author disagrees with the policy of“shelving difference and seeking joint development”, by contrast, the strengthening of the administrative jurisdiction over the disputed area should be encouraged, move forward the natural resources exploitation and develop the military forces to provide necessary safeguards. |
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