This Note addresses the ocean boundary delimitation conflict between Japan, China, Taiwan, and South Korea in the East China Sea. The author considers international law on boundary delimitation and concludes that the law is unclear on delimitations between states within four hundred nautical miles of one another. The International Court of Justice has held that equity is the norm to be applied to boundary delimitation disputes but it has not resolved the competition between the natural prolongation theory of delimitation and a theory based upon the Exclusive Economic Zone. The geology of the East China Sea brings this issue to the fore. The author concludes that regardless of how this conflict is resolved, equidistance, proportionality, and other equitable concerns will apply to any boundary delimitation. The Note accounts for the political situation in the East China Sea area and concludes that the possibility of reaching a solution is greater than it has been in the past. The author nevertheless argues that it will be necessary to look to alternatives to existing legal precedents to develop a solution to the dispute in the East China Sea. These alternatives include the creation of joint development zones, a compromise of the best legal position advanced by each side and an approach based on strict proportionality.
1International Court of Justice — Contentious jurisdiction — Provisional measures of protection — Circumstances in which Court will indicate provisional measures — Whether necessary to determine that prima facie basis for jurisdiction exists — Nature of provisional measures in case involving continuing armed conflictInternational Court of Justice — Contentious jurisdiction — Procedure — Removal of case from list — Circumstances in which request for removal will be granted — Necessary that there must be no prima facie basis for jurisdictionInternational Court of Justice — Contentious jurisdiction — Procedure — Intervention — Application by State to intervene to contest jurisdiction and admissibility — Whether any basis for such intervention in Statute — Whether appropriate to hold hearing — Refusal of request to intervene not a bar to intervention at merits phase of proceedingsInternational Court of Justice — Organization of the Court — Judges — Standards of behaviour — Press conference — Reference by State party to case to nationality of certain judges — Suggestion that secret information could not be disclosed to court containing judges from certain countriesInternational Court of Justice — Contentious jurisdiction — Competence — Optional Clause — Declaration of acceptance — Declarations made under Statute of the Permanent Court of International Justice — When transferred to International Court of Justice — Statute of the International Court of Justice, Article 36(5) — Whether necessary for declaration to have been binding in respect of Permanent Court in order to be transferred under Article 36(5) — Declaration made by Nicaragua on signing Protocol of Signature to the Statute of the Permanent Court — Never completed by ratification — Whether possessing any legal effect — Whether constituting a binding acceptance of the compulsory jurisdiction of the International Court by virtue of Article 36(5)International Court of Justice — Contentious jurisdiction — Competence — Optional Clause — State listed in Court publications as having accepted compulsory jurisdiction — Whether inclusion in list legally significant — Conduct of States — Whether capable of curing defect in State's acceptance of compulsory jurisdiction — Whether conduct must be consistent and unequivocal — Whether State's conduct amounting to an estoppel2International Court of Justice — Contentious jurisdiction — Competence — Optional Clause — Withdrawal or amendment of declaration accepting compulsory jurisdiction — Declaration stating that notice required — Whether States within Optional Clause system possessing extra-statutory right to withdraw declarations with immediate effect — State practice under Optional Clause — Reciprocity — Whether applicable to notice provisions of declarationsInternational Court of Justice — Contentious jurisdiction — Competence — Optional Clause — Reservations — Reservation excluding jurisdiction of the Court in relation to disputes arising under a multilateral treaty if the other parties to the treaty who would be affected by the decision not before the Court — Interpretation — Whether reservation capable of being applied in proceedings relating to jurisdiction — Whether more appropriate for application at merits phase — Reservation precluding Court from adjudicating upon claims based on treaty provisions on the use of force and intervention — Whether also precluding application of customary law principles with content similar or identical to treaty provisionsInternational Court of Justice — Contentious jurisdiction — Competence — Under bilateral treaty — Nicaragua-United States Treaty of Friendship, Commerce and Navigation, 1956 — Disputes regarding interpretation and application of Treaty — Extent of jurisdiction conferred upon CourtInternational Court of Justice — Contentious jurisdiction — Admissibility of application — Legal dispute — Definition — Whether excluding dispute involving continuing armed conflict — Whether such disputes reserved for Security Council — Whether State required to exhaust regional political machinery for settlement of disputes before referring matter to Court — Absence of other States involved in regional dispute — Whether international law includes indispensable parties rule — Whether admissibility to be considered at jurisdiction or merits phase of proceedingsInternational Court of Justice — Contentious jurisdiction — Procedure — Fact-finding — Rules of evidence — Procedure for determining facts — Relevant period — Press information and matters of public knowledge — Statements by representatives of States — Oral evidence of witnesses — Material not presented in accordance with Rules of CourtInternational Court of Justice — Contentious jurisdiction — Procedure — Absence of respondent State from part of proceedings — Statute of the International Court, Article 533International Court of Justice — Contentious jurisdiction — Power to award damages — Whether including power to make interim award of damagesSources of international law — Treaties — Customary international law — Relationship between treaties and custom — Development of customary international law through the conclusion of treaties — Whether treaty completely supplants identical rules of customary international law as between parties to the treaty — United Nations Charter — Charter of the Organization of American States — Provisions relating to intervention and the use of force — Whether codificatory of existing customary law at the date of their conclusion — Whether customary law has subsequently developed to take the same form as Charter provisionsSources of international law — Customary international law — Constituent elements — Practice — Whether absolute consistency required — Opinio iuris — Evidence of — Treaties as evidence of opinio iuris — Resolutions of international organizations as evidence of opinio iuris — Significance of concordant views of parties to case as evidence of content of customary lawState responsibility — For acts of armed groups supported by State — Rebel groups operating in one State financed and equipped by other State — Whether acts of rebel groups imputable to the State which supports them — Degree of control necessary for acts to be imputable to StateWar and armed conflict — Use of force — Definition — Whether supplying rebel groups operating in another State a use of force against that State — Whether an armed attack — Provision of funds and supply of arms — Logistical and organizational support — Training — Covert operations — Sending armed bands — Whether an armed attack — United Nations Charter, Articles 2(4) and 51 — Customary international lawWar and armed conflict — Use of force — Self-defence — Limitations on the right of self-defence — Requirement of an armed attack — Necessity and proportionality — Motive of State using force in alleged self-defence — Collective self-defence — Requirements — Whether State which has been the victim of an armed attack must request assistance — Whether third State coming to assistance of victim State must itself be under threat — Duty to report measures taken to Security Council under United Nations 4Charter, Article 51 — Whether also a requirement of customary international law — Evidential significance of failure to report measuresWar and armed conflict — Use of force — Self-defence — Whether State entitled to use force in response to unlawful intervention not amounting to an armed attackWar and armed conflict — Humanitarian law and the laws of armed conflict — Geneva Conventions, 1949 — Whether an expression or a development of fundamental principles of humanity — Common Article 3 — Fundamental principles applicable to non-international conflicts — Minimum yardstick also applicable to international conflicts — Conflict in Nicaragua — Whether international — Common Article 1 — Duty to ensure respect for Conventions in all circumstances — Publication of manual advocating the commission of acts contrary to humanitarian law — Whether publication a violation of humanitarian lawWar and armed conflict — Humanitarian law and the laws of armed conflict — Naval warfare — Mines — Hague Convention No. VIII, Relative to the Laying of Automatic Submarine Contact Mines, 1907 — Duty to notify international shipping of the existence and location of minefieldsStates — Sovereignty — Duty of non-intervention — Scope and extent of duty at customary international law — Support for rebel groups in another State — Right of each State to determine political system and foreign policy for itself — Whether this freedom curtailed by announcement to regional organization of political programme — Whether announcement constituting binding undertaking — Regional organization and some States within region recognizing new government on strength of undertakingStates — Sovereignty — Mining approaches to State's ports — Unauthorized intrusion into State's airspace — Whether violations of State's sovereigntyGovernments — Recognition — Conditions of recognition — Nicaragua — Junta for National Reconstruction offering certain undertakings about future direction of Nicaragua — Organization of American States withdrawing recognition from previous "Somoza" Government — Whether undertakings binding5Governments — Succession — Successful rebellion — New government responsible for acts of rebelsHuman rights — Enforcement — Whether States have a right to use force against State which is violating human rights — Alleged violations of human rights in Nicaragua — Whether justifying use of force by the United StatesAir — Airspace — Unauthorized intrusion into State's airspace — Whether a violation of State sovereigntySea — Territorial Sea — Internal waters — Freedom of passage — Mines — State laying mines in territorial sea and internal waters of other State — Access to other State's ports impeded — Whether a violation of freedom of navigationEconomics, trade and finance — Economic sanctions — Trade embargo — State blocking loans in international organizations — United States sanctions against Nicaragua — Whether contrary to general international law — Whether contrary to Nicaragua-United States Treaty of Friendship, Commerce and Navigation, 1956 — Whether defeating object and purpose of treatyDamages — Basis for award of damages — Reparation for unlawful use of force and intervention — Declaration that Respondent State under a duty to make reparation — Form and amount of reparation to be settled in later proceedingsTreaties — Form — Informal undertakings — Plan for political development of State issued by government in exile to regional organization — Whether intended to have legal effect
