legal issues and marine laws of mainland China and Taiwan

The UN Year of the Ocean—1998—is significant for China, including both Taiwan and
the mainland, in respect of the marine legislation. Early in January that year Taiwan
promulgated its Law on the Territorial Sea and the Contiguous Zone and the Law on the
Exclusive Economic Zone (EEZ) and the Continental Shelf, while in June the mainland
also promulgated its Law on EEZ and the Continental Shelf which is another major
marine legislation after its 1992 Law on the Territorial Sea and the Contiguous Zone.
Thus an interesting phenomenon occurred: two governments of China promulgated two
sets of basic marine laws applicable to the same geographical areas. Since such laws are
of strong extraterritorial nature, a comparison is necessary in the context of international
law. Also, since China is now a divided nation, the above laws of the same nature
certainly carry political, economic, and strategic ramifications. This chapter attempts to
review and assess these laws to see how they were formulated and to what extent they
can be implemented in practice; what kind of difficulties the two governments of China
face to implement these laws and whether there is a possibility to coordinate, or even
unify, these laws in the future for the interest of the whole of China. It should be pointed
out that China referred hereto is a “greater China” including the mainland and Taiwan.
Despite the consensus, the interpretation of “one China” by the mainland and Taiwan
may be different. To Beijing, “one China” means “the People’s Republic of China” with
Taiwan to become a “Special Administrative Region” after unification. Taipei, on the
other hand, considers “one China” to mean the Republic of China founded in 1912 and
with de jure sovereignty over all of China. The ROC, however, currently has jurisdiction
over Taiwan, Penghu, Kinmen, and Matsu. Taiwan is part of China, and the Chinese
mainland is part of China as well. An alternative name for the mainland is the People’s
Republic of China (PRC) and for Taiwan the Republic of China (ROC), which will be
occasionally used throughout this chapter when necessary.
The seas adjacent to China are the Yellow Sea, the East China Sea, and the South
China Sea. The Yellow Sea is about 380,000sq km, 44m of depth on average with a
maximum depth of 140m. Within the Yellow Sea there is Bohai, which is an internal sea
of China. The East China Sea is a wider shallow sea with an average depth of 370m and
770,000 sq km in size. The South China Sea is bounded on the north by mainland China,
on the east by the Philippine archipelago, on the south by Kalimantan, and on the west by
the Malay peninsular and Vietnam. The area of the South China Sea is about 3.5 million sq km with an average depth of 1,212m and a maximum depth of 5,559m. One common
characteristic of the above seas is their semi-enclosed nature as is defined in the 1982
United Nations Convention on the Law of the Sea (the LOS Convention). The coastal
lines along the mainland are more than 18,000km in length, and the coastal lines around
islands are 14,000km in length. There are about 6,000 islands in these seas. Natural
resources including fisheries and petroleum are abundant.
Actual jurisdictional maritime zones of mainland China and Taiwan
According to the LOS Convention, a coastal state is entitled to have full sovereignty over
its internal waters and territorial sea, except that foreign vessels enjoy innocent passage in
the territorial sea, and a coastal state has sovereign rights over the EEZ and the
continental shelf. For the purpose of realizing these rights granted by international law, a
coastal state may enact domestic laws and regulations to govern the above sea areas and
human activities therein. Because of the differences in nature between the territorial sea
and the EEZ/continental shelf, coastal states usually treat them separately in legislation,
which can be seen in the two sets of the laws promulgated by PRC and ROC.
The PRC Law on the Territorial Sea provides that it is applicable to all the land
territory of China including the mainland and its coastal islands, Taiwan and the islands
appertaining thereto, all the islands in the South China Sea (Art. 2). On the other hand,
the corresponding Taiwanese Law has no such detailed listing, only mentioning that
ROC’s sovereignty extends to cover the territorial sea, airspace above it, and the seabed
and subsoil thereof (Art. 2). Since both sides across the Taiwan Strait have claimed their
governance over the whole of China, in theory both laws on the territorial sea apply to the
entire territorial sea of China. In reality, what each of the sides controls is different: for
the mainland, the actual jurisdiction area is the territorial seas of the mainland and its
coastal islands and some of the South China Sea islands, particularly the Paracel Islands.
For Taiwan, it is Taiwan Island, the Penghu Islands (the Pescadores), Jinmen (Quemoy or
Kinmen), Mazu (Matsu), and some islands in the South China Sea, particularly the Pratas
Islands. It is obvious that the laws of both sides only apply to the respective territorial sea
areas within their actual jurisdiction.
What is more complex in the applicability of the laws on the territorial sea as well as
the laws on the EEZ is the difficulty resulting from cross-Strait relations. The mainland
has long claimed that Taiwan is a province of China and the Taiwan government is a
local authority. PRC has firmly opposed the ideas of “two Chinas”, “one China, one
Taiwan”, or “one country, two governments”. Therefore, PRC does not recognize the
validity of the Taiwanese laws such as the territorial sea law or the EEZ law. Despite
such claims, the mainland faces a dilemma in that its law, though applicable on paper,
cannot apply in reality to the water areas under Taiwan’s jurisdiction. For these waters,
the Taiwanese laws apply and they are de facto valid vis-à-vis the mainland law applying
to the water areas under the mainland’s jurisdiction. Taiwan’s attitude is somewhat
different from that of the mainland. In 1991 Taiwan terminated the Period of National
Mobilization for Suppression of the Communist Rebellion and the communist regime in
the mainland has since been no longer regarded as a rebellion but as an unfriendly regime in control of the mainland. Such a step is regarded as a tacit abandonment of Taiwan’s
claim to be the government of the entire China.
The relationship between the mainland and Taiwan is not international but
intranational. Such a characteristic has also been reflected in their marine laws. The PRC
law on the territorial sea is proclaimed to apply to Taiwan and its adjacent islands.
Though there is no such proclamation in PRC’s EEZ law, it is assumed that the EEZ law
is also applicable to Taiwan and its adjacent islands since the EEZ is an extension of the
territorial sea of a coastal state. PRC treats, as a government policy, the Taiwanese
residents as its nationals so that the Taiwanese can come and go across the mainland
border without a visa. However, ROC regards the mainlanders as Chinese, but treats them
differently from the Taiwanese. In 1992, ROC adopted the Statute Governing the
Relations between the People of the Taiwan Area and the Mainland Area. It has since
become a basic law to regulate, inter alia, the entry and exit of the mainlanders to Taiwan
Island and other areas under ROC’s control, including the water areas. ROC designated
prohibited and/or restricted water areas around Taiwan Island, the Penghu Islands,
Jinmen, Matsu, Dongyin, Wuqiu, the Pratas Islands, and Taipin Island in the South China
Sea. The mainland vessels are not allowed to enter these areas. The ROC territorial sea
law, accordingly, provides that the mainland vessels should comply with it when passing
through the territorial sea of ROC in addition to the Relations Statute (Art. 7). The term
“ROC” used to govern relations between the mainland and Taiwan is confusing because
politically the ROC is not Taiwan only. It should be more appropriate to use the term
“Taiwan Area” instead of “ROC” in its law. It is acknowledged that the name “ROC”
here is closer to the “Taiwan Area” defined in the Statute Governing the Relations
between the People in the Taiwan Area and the Mainland Area. This is also a dilemma
the ROC government faces in the context of cross-Strait relations.

Territorial sea and contiguous zone
The LOS Convention has established the territorial sea regime including the criteria for
baselines, breadth of the territorial sea, innocent passage, and other governance matters.
One identical aspect in the laws of the territorial sea of both the mainland and Taiwan is
the breadth of the territorial sea: both provide 12 nm. While there are other similarities
in the two laws, there are at least two major departures from each other.
First, the mainland law has continued to insist on its innocent passage regime for
foreign warships, i.e. the requirement of prior permission, which was first set forth in the
1958 Declaration on the Territorial Sea. Innocent passage means a passage through the
territorial sea of a coastal state without creating any prejudicial impact upon the peace,
good order or security of the coastal state. Article 6 of the PRC law provides that
foreign ships for non-military purposes enjoy the right of innocent passage but foreign
ships for military purposes are subject to approval by the Chinese government before
entering China’s territorial sea. This requirement is not consistent with the LOS
Convention, which provides that ships including warships have the right of innocent
passage (Art. 17). During UNCLOS III, PRC used every occasion to oppose the adoption
of this provision, but its efforts went to no avail. In 1996 when PRC ratified the LOS Convention, it made a statement to the effect that the provision on innocent passage in the
LOS Convention should not affect the right of the coastal state to regulate the passage of
foreign warships in its territorial sea. Since PRC has fully realized that its prior
permission requirement is in conflict with the LOS Convention, and since PRC ratified
that Convention and has to bear the treaty obligation to bring its relevant domestic law in
line with the Convention, PRC thus hinted in the same statement that only prior
notification may be enough for foreign warships passing through China’s territorial sea.
This may require a change of domestic law. Moreover, there is a problem in practice in
implementing the two different rules: prior notification and prior permission. It is not
clear whether PRC will harmonize its law with the LOS Convention soon.
In ROC’s law, however, the requirement for the innocent passage for foreign warships
is different from that found in the PRC law. The ROC law provides that foreign vessels
for military purposes or public services should give a prior notification when passing
through ROC’s territorial sea (Art. 7). Prior to 1998, Taiwanese authorities required
foreign warships to obtain permission before passing through the territorial sea, thus the
legislation represents a significant change of its former position. The prior notification
requirement seems not consistent with the LOS Convention either, though it is softer than
the prior permission requirement. However, since Taiwan is not a signatory to that
Convention, it has no obligation to comply with the Convention unless the rule of
innocent passage for warships is or becomes part of customary international law.
The second major departure in the ROC law from the PRC law is concerning the
baselines of the territorial sea. PRC has determined to use the method of straight
baselines for the entire territorial sea of China, and in May 1996 part of the straight
baselines were publicized. The publicized baselines are divided into two sets: one
comprising 49 basepoints along features on, and adjacent to, its mainland coast and on
Hainan Island, beginning at point 1 (Shandong gaojiao) on the eastern tip of the
Shandong peninsula situated to the southeast of Bohai, south to point 49 situated on the
west coast of Hainan Island; and the other encompassing the Paracel Islands in the
northern part of the South China Sea. However, parts of the baselines have been
criticized for not being consistent with the criteria set forth in the LOS Convention. For
example, the coastline from the Shandong peninsula to the area of Shanghai (point 1 to
point 11) is essentially smooth, with no fringing islands and few indentations. Thus, it is
argued, the straight baseline method should not apply. The other criticism is that the
archipelagic baselines encircling the Paracel Islands should not be used because PRC is
not a mid-ocean archipelagic state.
It seems that ROC realized the different geographic features of China’s coastlines and
endorsed two methods to measure the territorial sea: straight baselines and low-water or
normal baselines (Art. 4). According to a Taiwanese scholar, approximately 80 percent of
the Chinese coastline can be enclosed by straight baselines and 20 percent by normal
baselines. On the last day of 1998, ROC publicized part of its baselines encircling
Taiwan Island and its associated islands, the Pratas Islands, Scarborough Reef in the
South China Sea, and Diaoyu Islands (Senkaku) in the East China Sea. Due to political
and diplomatic considerations, however, the location of baselines and the outer limit of
the territorial sea around Kinmen, Matsu located in the western side of the Taiwan Strait,
and for the Spratly Islands group were not announced. Thus, ROC only publicized part of the baselines of China, like PRC, to measure the territorial sea of the land territory under
its actual control. It is interesting to note that Kinmen and Matsu under ROC’s control are
within the baselines declared by PRC.
One concern triggered by the different methods being used by PRC and ROC to
measure the territorial sea is that two different sets of outer limits of the territorial sea for
the whole of China would be created. However, both sides across the Taiwan Strait
were very pragmatic and only publicized the baselines of the territorial sea under their
actual jurisdiction.
According to the LOS Convention, a contiguous zone is a zone contiguous to the
territorial sea of a coastal state where the coastal state may exercise the control necessary
to prevent infringement of its customs, fiscal, immigration, or sanitary laws and
regulations within its territory or territorial sea, and to punish infringement of the above
laws and regulations committed within its territory or territorial sea. The breadth of the
contiguous zone may not extend beyond 24 nm from the baselines from which the
breadth of the territorial sea is measured (Art. 33). Before the emergence of the EEZ
regime, the contiguous zone was part of the high seas, but now it is within the EEZ of a
coastal state. Thus, the legal status of the contiguous zone is the same as what is granted
to the EEZ with the above four additional rights within the contiguous zone. In this sense,
the contiguous zone and EEZ are overlapping water areas within national jurisdiction.
However, since the above-defined jurisdictional rights for the coastal state are in fact
extensions from the sovereignty and jurisdiction of that state in its territorial sea, the
governance of the contiguous zone is usually regulated together with the territorial sea.
Both the Chinese laws provide for a 24 nm contiguous zone and thus are in conformity
with the LOS Convention (Article 14 of the ROC law and Article 4 of the PRC law).
Nevertheless, as far as jurisdictional rights are concerned, both laws go beyond the
defined rights under the LOS Convention. Article 13 of the PRC law includes “security”
matters under its jurisdiction, in addition to the rights defined in the LOS Convention.
During UNCLOS III, the PRC delegation proposed adding this word to the provision on
the contiguous zone, but the proposal was rejected. Despite the rejection, PRC adopted
the wording in its domestic law, which raises a question whether such inclusion is
consistent with the LOS Convention. It is said that the adoption of the wording “security”
in the PRC law was based upon existing state practice and for the special circumstances
of PRC. Whether PRC is permitted to establish a security zone in the contiguous zone
remains a controversial issue in international law and state practice. The ROC law goes
beyond the provision of the LOS Convention as well. Its Article 15 includes commerce,
inspection, environmental protection, and illegal broadcasting in addition to customs,
fiscal, immigration, and sanitary control. It is noted that some jurisdictional matters are
allowed in the EEZ regime, such as environmental protection. Since the contiguous zone
is part of the EEZ, there is no question that a coastal state can exercise such rights in the
contiguous zone. As mentioned above, ROC is not a party to the LOS Convention, and
thus may regulate related matters in the contiguous zone more freely, in comparison with
PRC who is a party to the LOS Convention.

EEZ and continental shelf
In April 1958 ROC signed the Convention on the Continental Shelf. In 1968 UNECAFE
(United Nations Economic Commission for Asia and the Far East) issued a report, saying
that the continental shelf between Taiwan and Japan was one of the most prosperous
areas of oil and gas in the world. Encouraged by this report, ROC ratified the Convention
in October 1970, but with two reservations: (1) natural prolongation should be used in the
delimitation of the continental shelf between states with adjacent or opposite coasts; and
(2) rocks and islets should not be considered in the delimitation of China’s continental
shelf boundary. The reservations themselves are self-evident for the interest of China,
particularly in considering the East China Sea continental shelf delimitation.
PRC has never recognized the legitimacy of the ratification undertaken by ROC. It did
not ratify the Convention on the Continental Shelf. PRC regarded the four 1958 Geneva
Conventions on the law of the sea as old international law. This is one of the reasons
given by PRC for participation in UNCLOS III: to make the new law of the sea. During
UNCLOS III, PRC expressed its position on the establishment of the regime on the EEZ
and the continental shelf in its working papers, speeches, and statements. China
maintained that the continental shelf was the natural prolongation of the land territory of
a coastal state. Natural prolongation is meaningful for China as the continental shelf
seaward from mainland China is very broad and China has used the concept of natural
prolongation to support its claim to the continental shelf in the East China Sea. The
delimitation of the continental shelf in the East China Sea is still a dispute between China
and Japan. In its statement of ratifying the LOS Convention, PRC stated that the
delimitation of maritime boundaries for the EEZ/continental shelf with neighboring states
was to be done through consultation “on the basis of international law and in accordance
with the principle of equity”. The 1998 PRC Law reaffirms the above statement.
Interestingly enough, the provision on boundary delimitation in the 1998 ROC Law is
almost identical with that of the PRC Law. However, the ROC Law adds to this provision
wording respecting the possibility of a “provisional arrangement” for a transitional period
pending the settlement of a boundary dispute. Since the general trend in state practice
concerning the boundary delimitation of the EEZ/ continental shelf is towards a single
line to delimit the two different and closely associated sea areas, it is reasonable to
wonder whether natural prolongation would still play a significant role in such
delimitation. The other problem is regarding the maritime boundary between Taiwan and
its neighbors. Since all the neighboring countries only recognize PRC as the sole
legitimate government of China, the delimitation may be conducted between those
countries and PRC without the involvement of ROC, thus greatly affecting the interest
and rights of ROC.
As early as 1979, ROC declared the establishment of the EEZ of 200 nm by
Presidential Decree No. 5046, while PRC did the same in 1996 on the occasion of
ratifying the LOS Convention, despite that they both promulgated the EEZ laws in 1998 As provided in the LOS Convention, a coastal state has the sovereign rights for the
purpose of exploring, exploiting, conserving, and managing all the natural resources in
the EEZ area and also enjoys jurisdiction mainly over three matters, i.e. the establishment and use of artificial islands, marine scientific research, and the protection and
preservation of the marine environment (Art. 56). The same rights are also enjoyed by the
coastal state on the continental shelf (Art. 77). Accordingly, both of the Chinese EEZ
laws reiterate the rights and jurisdiction provided by the LOS Convention (Articles 3–4
of the PRC law and Article 5 of the ROC law). Furthermore, they try to expand their own
rights assuming that these rights are not contradictory with the LOS Convention. This is
particularly true in the ROC law. For example, for the purpose of its jurisdiction over the
marine environmental protection, the ROC, in Article 11 of the EEZ law, may have the
right to take action against a suspected vessel of pollution which navigates in its EEZ
area. Some of the provisions in both of the EEZ laws are stricter than what is provided in
the LOS Convention. For instance, scientific research in the EEZ or on the continental
shelf by foreigners should be approved by the respective governments (Article 9 of the
PRC law and Article 9 of the ROC law).
Fishery management is an important focus of the EEZ legislation. The Chinese laws
are no exception. They use the relevant LOS Convention provisions to ensure their rights
to the natural resources in the EEZ. The PRC law provides that PRC enjoys the right to
conserve and manage the straddling stocks, highly migratory species, marine mammals,
anadromous stocks originating from China, and catadromous species which spend the
greater part of their life cycle in Chinese waters, while the ROC law only mentions
straddling stocks but in a soft tone: foreign vessels should consider the conservation and
management measures adopted by ROC concerning its EEZ when they fish the straddling
stocks beyond the ROC EEZ. It is not clear why ROC’s tone is softer than PRC’s. One
reason may be that the distant-water fishing industry in Taiwan is a big industry and it
would like to continue to fish on the high seas and allowable areas within national
jurisdiction. On the other hand, it seems that ROC has disregarded the anadromous
species originating from the rivers in northern China. In this context, the ROC law
perhaps is more concerned with the Taiwanese waters rather than with the waters of all of
There is no mention in either law of the surplus of the allowable catch in the EEZ
which, in accordance with the LOS Convention, could be exploited by other countries
(Art. 62). It is obvious that in the China seas there is no such surplus. Conservation is
more important than develop-ment. Despite this, the Chinese law does not exclude
foreign fishing in China’s EEZ. The traditional foreign fishing rights seem guaranteed at
least in the PRC law, subject to bilateral agreements. PRC has fishery agreements with
Japan, North Korea, South Korea, and Vietnam. For example, Japanese fishermen have
enjoyed fishing rights in China’s coastal water for a long time. In 1997 PRC and Japan
reached a new agreement on fishery management. A joint fishery zone has been
established in the East China Sea.
The unique status of Taiwan also affects fishery management. ROC raised the issue of
overlapping areas in the Bashi Channel to the Philippines many times, hoping to reach a
fisheries and/or boundary agreement. However, since the Philippines recognized PRC as
the sole legitimate government of China and any such deal should be done with Beijing
rather than with Taipei, the issue could not be solved easily.
The legal regime of the continental shelf is closely related to that of the EEZ. For the
purpose of natural resource development, the former is more concerned with non-living resources while the latter with living resources. That is why in state practice the two
regimes are put together in legislation, as is exemplified in the above Chinese laws. In
addition to enjoying the same rights and jurisdiction as in the EEZ regime, the coastal
state enjoys the exclusive right to authorize and regulate drilling on the continental shelf
for all purposes (Article 4 of the PRC law). Unlike within the EEZ, the rights of the
coastal state over the continental shelf do not depend on occupation, effective or notional,
or any express proclamation.
Since the EEZ and the continental shelf are different from the territorial sea in that the
coastal state only enjoys sovereign rights to the resources there and jurisdiction over
certain matters, some rights enjoyed by the world community derived from the freedom
of the high seas remain exercisable in the EEZ and on the continental shelf, such as
freedom of navigation, freedom of overflight, and freedom of laying submarine cables
and pipelines on the continental shelf. These rights are expressly reflected in the PRC
law, but not in the ROC law. Nevertheless, such omission may be regarded as a tacit
agreement to these rights since there are various provisions in the ROC law which
regulate navigation, and the laying of cables and pipelines. Even if there is no tacit
agreement, these rights should not be affected in the EEZ/continental shelf under ROC’s
actual control because, according to the legal nature of the EEZ and the continental shelf,
such rights are guaranteed in international law despite the fact that the ROC is not a
signatory to the LOS Convention.
The LOS Convention gives power to a coastal state to regulate, authorize, and conduct
scientific research in the EEZ or on the continental shelf, and encourages marine
scientific research for the benefit of all mankind and provides that consent should, in
normal circumstances, be granted to those who plan to conduct scientific research in the
EEZ and/or on the continental shelf of other countries for peaceful purposes (Art. 246). In
both PRC and ROC laws, however, freedom of marine scientific research is restricted,
and they are subject to governmental approval. Article 9 of the ROC law further provides
that in conducting scientific research, the following regulations should be followed:
1 such scientific research should not interfere in any rights exercised by ROC in its EEZ
and the continental shelf;
2 the right to designate representatives to participate in such scientific research by ROC
should be guaranteed;
3 provision at any time of progress reports and preliminary and final conclusions;
4 provision at any time of the complete copies, data, and specimens of unharmed
scientific value and all assessment reports;
5 the use of research materials should not harm security and interest of ROC;
6 immediate notification should be given to the ROC government when the plan has a
substantial change;
7 no investigation of marine resources except otherwise agreed;
8 the marine environment should not be damaged; and
9 all research facilities and equipment should be moved away immediately after the
completion of the work.
The PRC law has no such detailed provisions, but the wording “… shall comply with the
laws and regulations” of the PRC indicates that the relevant laws and regulations will apply in this respect. In 1996 PRC adopted the Regulations on the Management of
Marine Scientific Research Involving Foreigners, which has detailed regulations to
govern foreign scientific research activities in the EEZ and on the continental shelf.
In order to ensure its sovereign rights to the EEZ and full compliance with its laws,
Article 12 of the PRC law provides that the PRC may take necessary measures such as
visit, inspection, arrest, detention, and institution of judicial proceedings. In addition,
PRC may exercise the right of hot pursuit against the vessels involved in a violation of
the PRC law. The PRC law contains no detailed penalty clauses. On the contrary,
however, the ROC law has ten clauses which deal with penalty as well as compliance.
Penalties will be imposed for violations relating to dumping of waste, damaging of
natural resources or the natural environment, illegal fishing, illegal construction of
installations, illegal scientific research, illegal laying of pipelines and cables. In serious
cases, criminal charges may be imposed. It is unknown whether they are applicable to
mainland Chinese, but it is assumed if mainland Chinese violate the law within the
ROC’s effective jurisdiction, they will be subject to these penalties. Though the PRC law
is simpler than the ROC law in terms of compliance and penalty, it is expected that, as a
general practice, the PRC will enact relevant regu-lations to implement its EEZ law,
which will be detailed with regard to penalty and other issues.

Future prospects
The application of the ROC laws to the China seas faces a real dilemma. It is assumed to
apply to the entire territory of the ROC including the mainland and Taiwan, but in reality
its jurisdiction is limited to Taiwan and other above-mentioned islands. Such dilemma is
also reflected in the laws by themselves. For example, in the ROC territorial sea law, it
provides that mainland vessels, when passing through the territorial sea of the ROC,
should comply with that law in addition to the Statute Governing the Cross-Strait
Relations (Art. 7). It is clear that here “ROC” refers only to the Taiwan Administration
region without the inclusion of the mainland and other areas beyond its jurisdiction.
Second, the above dilemma is exacerbated even more by the situation that all the
countries neighboring Taiwan have no official diplomatic ties with it, and recognize the
PRC as a sole legitimate government of the entire China. Thus an inherent defect is
embodied in the ROC laws in terms of implementation and enforcement, particularly the
stipulations concerning boundary delimitation with neighboring countries. It is not known
how and when the ROC would initiate any boundary delimitation process according to its
own law. A proposal that such a process is authorized by the PRC or that the PRC
represents the ROC for such a process will definitely be unacceptable to the ROC. The
current status quo of a divided China is a major obstacle to resolving maritime boundary
issues between China and its neighboring countries, particularly Japan and the
At present, the two sets of marine laws above will no doubt cause conflicts of
jurisdiction between the present two authorities across the Taiwan Strait. It is expected
that some kind of interim arrangements regarding the maritime jurisdiction for both sides
will be negotiated as implementing steps for the above laws. There will be a common position of the two sides on maritime boundary delimitation with relevant neighboring
countries. It is recalled that both sides have taken a concerted position on the South China
Sea. Unless Taiwan achieved independence, these arrangements would remain
“domestic” in nature.
Another factor affecting the implementation of the above marine laws in the cross-
Strait relations is the possible reunification of China. It raises the question whether there
will be a future unification of the laws concerning state territory including the above
basic marine laws. The case of Taiwan is different from Hong Kong in regard to the
possible unification of the marine legal systems. According to the Basic Law of the Hong
Kong Special Administrative Region, Hong Kong can retain its existing legal system
including the common law, law of equity, and customary law applicable in Hong Kong.
As to the marine areas, Hong Kong only has internal waters within the publicized
baselines of the PRC in 1996. Therefore, Hong Kong itself has no territorial sea, much
less an EEZ or continental shelf. On the other hand, since the matters relating to the
territorial sea and the EEZ/continental shelf are matters within the power of the central
government, the laws of territorial sea and EEZ accordingly are applicable to Hong Kong
as provided in Annex III of the Basic Law and other late-on additions. However,
Taiwan itself owns a vast sea area and has adopted laws on the territorial sea and EEZ.
Taiwan has never regarded itself as a subordinate to the mainland as a province claimed
by the PRC. It considers itself an equivalent entity vis-à-vis the mainland. Unlike Hong
Kong which is always a subordinate to a state, Taiwan claimed to be such an independent
nation state as the ROC on Taiwan. It has a national legal system parallel to that of the
mainland. Thus it would be impossible to simply retain the legal system of Taiwan after
China’s reunification following the Hong Kong model.
In terms of the unification of the marine laws, there is also a linguistic problem. The
two sides across the Taiwan Strait have used some different expressions of the basic legal
terms in the law of the sea. The typical differences lie in the concepts of “the continental
shelf” and “the contiguous zone”. Such differences bear a political connotation. As we
know, only in 1971 the PRC replaced the ROC for the China seat in the United Nations.
Before that time ROC was a legitimate representative of China in the United Nations
system. Thus for the first and second UN Law of the Sea Conferences, the ROC
delegation participated in the negotiations. The Chinese versions of the 1958 Geneva
Conventions on the Law of the Sea were translated by the ROC side. However, the PRC
attended UNCLOS III and was responsible for the Chinese version of the LOS
Convention. Though the ROC carefully considered the stipulations of the LOS
Convention in adopting its territorial sea and EEZ laws, it still continued using the
Chinese terms contained in the 1958 Conventions instead of the Chinese terms in the
LOS Convention. Thus, the political connotation is obvious: the ROC would seek its
legitimacy through historical international legal documents. Nevertheless, in considering
the future unification of marine laws, such linguistic differences should be eliminated.
In conclusion, the marine legislation of the two authorities in China is an interesting
phenomenon in the legal as well as in the political fields. The laws of the two sides are
supposed to apply to China as a whole, but in reality their application is only limited to
the areas under the actual control of either the mainland or Taiwan. In comparison, the
PRC laws are superior to those of the ROC in implementation and enforcement because of the PRC’s stronger international status and wider diplomatic ties with all China’s
neighboring countries. The inferiority of the ROC laws does not mean that these laws
could not be implemented in practice, but their application is limited not only
geographically but also politically. Potential conflicts in implementing the above laws
will arise since they are made and enforced by different authorities. On the other hand,
for the purpose of safeguarding national interests, all the above laws take the same
position vis-à-vis other countries, particularly on maritime boundary delimitation and
territorial sovereignty over disputed islands in the East China Sea and the South China
Sea. In this sense, they are complementary. Yet, it is still, in any case, too early to predict
that the marine laws above will be unified to apply to the entire China due to the current
unstable cross-Strait relationship, particularly after the Democratic Progressive Party, a
pro-independence party in Taiwan, came to power in 2000.

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