Research On Provisional Arrangements Of The United Nations Convention On The Law Of The Sea

This paper discusses the provisions of the interim arrangements in the United Nations Convention on the Law of the Sea and their application in the east China Sea.Firstly,the article discusses the concept and nature of the interim arrangement clause from the background of the emergence of the interim arrangement clause,combining with the international practice cases.Practicality,transition and independence are the characteristics of the articles on interim arrangements.This could be done in a proactive manner,such as joint development,or by suspending or shelving activities in the disputed area.Therefore,the practicality also needs to be based on the disputed states and the specific circumstances of the disputed sea area to make a choice.The interim nature means that the interim arrangement agreement is not equal to the final maritime delimitation agreement,and can not replace the final maritime delimitation agreement,and the interim arrangement is not final.Whether the contents of the interim arrangement can be continued and confirmed in the final delimitation agreement depends on the existence of good-faith consultations between the disputing states and whether the agreement is clear.Finally,the articles of interim arrangements are independent,and the articles of interim arrangements are independent from the final agreement on delimitation of the disputed sea areas,and do not affect the negotiation of the subsequent agreement on delimitation.In addition,the application of the interim arrangement clause,especially its typical way of joint development,needs to follow the principle of good faith and reciprocity and due consideration.Secondly,since the convention does not explain the geographical scope of application of the "obligation not to endanger or obstruct",this paper summarizes and analyzes the different interpretations of the geographical scope of application of the article in practice and among different scholars.The current practice was to interpret the geographical scope of application of the obligation as applying to the disputed area.Some scholars agree with this point of view,some scholars believe that the provisions should be applied to the entire undelimited disputed sea.However,this view does not in itself resolve its challenge to the view applicable to the disputed sea areas,that is,in some cases the disputed sea areas are difficult to determine.At the same time,the parties to the dispute are not fairly bound by this provision under this view.Therefore,the view of the disputed area is more in line with practice and the provisions of the convention and is more reasonable.The disputed area in the east China Sea needs to be determined according to the claims of China and Japan.In view of the two countries' claims,this paper probes into the basis of their rights,one is the standard of equidistance,the other is the standard of natural extension.There is no hierarchical relationship between the two bases of rights,therefore,the disputed area is determined according to the bases of rights claimed by the disputing states respectively,that is,the overlapping area between the claim area put forward by China according to the natural extension criterion and the claim area put forward by Japan according to the equidistance criterion.In addition,this paper discusses the application of interim arrangements in the East China Sea,namely,the "Consensus of principles on the East China Sea Issue"(hereinafter referred to as the "consensus of principles").On the one hand,necessity and feasibility are the necessary conditions for the implementation of the regime in the east China Sea.First,China and Japan have disputes over the delimitation of the continental shelf in the east China Sea,including differences over the application of the delimitation principles,differences over sovereignty over the Diaoyu Islands,and differences over the status of the Okinawa trough.Secondly,it is quite difficult to solve the problem of maritime delimitation in a relatively short time.Third,from the implementation of the difficulty point of view,the difficulty of the East China Sea relative to the South China Sea is smaller.First,as far as the number of parties involved in the dispute is concerned,the number of parties involved in the delimitation of the sea area in the East China Sea is relatively small,and the sea area involving only China and Japan is relatively large.This enhances the possibility of the two sides reaching an agreement on joint development and carrying it out in practice,and is conducive to consultations and negotiations between the two countries on the issue of disputes.Second,in terms of the number of disputed islands,there are fewer in the sea.While both sides are sensitive to the issue of sovereignty over the part of the island,temporary arrangements for joint development can move forward as long as these issues are put on hold or resolved.Moreover,because of the relatively small number of disputed islands,the undisputed waters are relatively large,such as the joint development blocks chosen by the two sides in the consensus of principles,which do not cover the Diaoyu Islands.On the other hand,the article discusses whether the consensus of principles satisfies the principle of good faith and mutual benefit in the terms of interim arrangements.The blocks of development identified in the document remain within the geographic boundaries claimed by each party.the document is therefore in accordance with the principle of good faith.However,the Consensus of principles has not been very effective in satisfying the principle of reciprocity,especially Japan's reciprocity towards China.The immediate question about the principle of reciprocity is the location of the joint development blocks.The Eastern and western parts of the median line are covered,that is,the non-disputed areas in the western part are also covered.In the choice and delimitation of blocks,the eastern boundary should be in the area beyond 200 nautical miles from the Chinese coast to the Okinawa trough.Since Japan's claim is reflected in the document,China's natural extension claim should also be reflected in the partition of the document in accordance with the principle of reciprocity.However,the document does not reflect our country's claims.In addition,the Consensus of principles does not reflect the claims of both sides regarding the Senkaku Islands dispute and the adjacent continental shelf arising from the Senkaku Islands dispute.It can be said that the non-involvement of the Diaoyu Islands issue is more favorable to Japan's position.Hence Japan's lack of reciprocity towards China.Overall,the document is more representative of Japan's interest view.Furthermore,the provisions of the interim arrangements themselves have a limited effect and can not cover all disputed areas.The use of the interim arrangements clause is also intended to eventually facilitate the demarcation process.Therefore,while improving the use of interim arrangements,it is also necessary to consider in advance whether the dispute in the East China Sea can be resolved through delimitation.In view of the above problems,this paper puts forward some possible improvements of the articles on interim arrangements in the future.First,in the context of the follow-up negotiations,the disputed areas should be identified in order to determine the geographical scope of the obligation without jeopardizing or impeding its application.To refute Japan's argument that the natural extension criterion has no scope for application,the disputed area should be the area comprising the median line and the Okinawa trough.Secondly,attention should be paid to the coordination of interests and obligations in the negotiation of interim arrangements.The block of joint development in the current consensus of principles crosses the median line,making the western part of the sea controversial,but the impact is still limited at present.Therefore,in the follow-up negotiations,efforts should be made to extend the joint development block to the east of the median line to the area between the Okinawa Trough and 200 nautical miles from the Chinese coast,which has served the purpose of embodying our natural extension claims.At the same time,try to include a reference to Diaoyu Sovereignty in the document to prove that the part of the island is disputed over sovereignty.In addition,we will carry out concrete and in-depth consultation and negotiation on joint development issues.Learn about co-development arrangements for other well-functioning areas,especially with respect to the distribution of benefits.Furthermore,the western part of the median line is defined as the non-disputed area.China can continue to develop the waters west of the median line,further stating and insisting that the Chunxiao oilfield belongs to cooperative development,not joint development.Finally,the legal effect of the disputed islands is weakened in the joint development.That is to separate the issue of the island from the issue of joint development.Of course,the economic value of the area planned for development needs to be fully assessed Therefore,in order to ensure the economic benefits of joint development,we need to advance the planned development area for specific and adequate economic evaluation.If the co-development agreement is signed,only to find that the selected block has no real economic value,before the pay may be wasted.In addition,as mentioned earlier,the role of interim arrangements is limited,and with regard to disputes in the east China Sea,the application of the provisions of the interim arrangements should not be limited,but the issue of delimitation in the East China Sea needs further consideration.First,since the difficulty in the East China Sea dispute lies in the issue of sovereignty over the disputed islands,it is possible to set aside some of the waters of the Diaoyu Islands in an attempt to demarcate them beyond 200 nautical miles.Second,legal means do not need to be completely excluded from the settlement of disputes in the East China Sea.South Korea's legal approach to Liancourt Rocks is based on its de facto control of the island,and a lawsuit would disrupt its own jurisdiction.If Japan takes the initiative to initiate legal proceedings,its control of the Diaoyu Islands will be automatically interrupted,more conducive to China.Of course,the fact that a legal approach is not precluded in this matter does not mean that my country will accept the same solution in the case of the other islands,unless it accepts the voluntary coercive measures of the International Court of Justice.To sum up,it is necessary and feasible to carry out the interim arrangement clause and make it applicable in the east China Sea.As a result,further negotiations could be conducted on the basis of the existing cooperation,including further clarification of the disputed areas,expansion of the joint development blocks to the east of the median line,attention to the harmonization of interests and obligations,etc.,with a view to the use of the resources of the east China Sea area through the provisions of temporary arrangements,the use of joint development and other forms,to achieve a win-win situation.The system of interim arrangements can not stand in the way of the final delimitation,which is also intended to achieve it,and therefore the modalities of the delimitation need to be further considered.