I Introduction2
In early August 2012, President Ma of the Republic of China ( Taiwan ) proposed an East China Sea peace enterprise at the occasion of the sixtieth anniversary of the coming into military unit of the Treaty of Peace between the Republic of China and Japan. His main proposal concerned a supplication for cooperation on the exploration and exploitation of the resources in the area, but he besides listed a few early areas by means of which the East China Sea could turn into a partition of peace and cooperation, one of them being search and rescue. 1 The manipulation of an agreement on search and rescue as vehicle for enhancing cooperation in the East China Sea, as proposed by President Ma, is surely not new. indeed, China and Japan had already started working on the conclusion of such an agreement. 2 At a high level meet between the Ministers of Foreign Affairs of both countries on 22 May 2011 both sides were in agreement that the function, which had obviously already been started, should be expedited in order to reach an early ending. 3 When the Prime Ministers of both countries met in December 2011, it was stated that an agreement in principle had been reached between the parties. 4 When the rumor unfold during the calendar month of January 2012 that the decision of the agreement was at hand, the japanese chief Cabinet Secretary emphasized that discussions were hush going on and that “ some form of conclusion in the not excessively distant future ” was to be expected, without however any precise deadline having been set. 5 A few months late, furthermore, at the occasion of the Fifth Trilateral Summit Meeting Among the People ’ s Republic of China, the Republic of Korea and Japan a Joint Declaration on the Enhancement of Trilateral Comprehensive Cooperative Partnership was adopted in which the parties, in decree to enhance political reciprocal trust, welcomed the holocene agreement in principle reached between China and Japan, and reaffirmed 6 the importance of enhancing cooperation in the plain of search and rescue between the three parties. 7 The above go d ’ horizon clearly indicates that search and rescue cooperation has been on the agenda in the East China Sea for some time, either on a bilateral or trilateral footing. The present contribution intends to have a expression at the manner in which cooperation in this battlefield can enhance cooperation between States in this quarrel prone region. After having defined the spatial extent of this study, the contemporary external legal framework governing search and rescue will be analyzed in general, followed by its application to the East China Sea more particularly. Based on a relative approach with some early regions where search and rescue has been an issue between the parties, the final part will try to draw some conclusions for the East China Sea.
II Spatial Extent
The focus of this article is on the East China Sea as defined by the International Hydrographic Organization in 1953 as Area 50. 8 It should be noted in this obedience that the specific terminology used in this publication to describe the ocean area in doubt, namely “ Eastern China Sea ( Tung Hai ) ”, 9 has no judicial implications any as to the legal ownership of these urine areas, 10 regardless of the multiple references to China it may contain. 11 The stage contribution has consequently no difficulty in using this official terminology in a newspaper focusing on rules of international police applicable to this area, because the use of this terminology, no topic how far-flung, can never on its own merits be relied upon in orderliness to attribute to China any legal rights over this nautical sweep. 12 The spatial extent of the East China Sea in other words corresponds grosso modo with the normal indication of this sea area on maps, excluding the Yellow Sea located to the North of it. The countries bordering this ocean are consequently China, Japan and South Korea. Taiwan, forming part of the southern limit of Area 50, deserves particular attention. Since its status as a State under contemporary international law is debated, 13 one could argue that it does not belong in the group of States bordering the East China Sea as defined above. On the other hand it can not be denied that Taiwan has not only many ships in the area but besides a modernize Coast Guard Administration responsible for search and rescue. 14 not including Taiwan in a paper on search and rescue in the East China Sea would therefore seem rather odd. With deference to fisheries the international community has tackled this specific problem by introducing the fresh notion of “ fishing entities ”. 15 evening though the application of this new concept in commit is far from perfective, it has allowed Taiwan to become bound by certain multilateral treaty obligations with esteem to fisheries, and sometimes even to draw rights from them. 16 It is with these caveats in mind that the present contribution will include Taiwan in the discussion .
III Legal Framework
The duty to assist persons found at sea in danger of being lost stems from an honest-to-god maritime custom that already formed depart of the early british Common Law, 17 a nation that, given its prevailing pastime in the formation of the law of the sea, believed that no new rule of international law could possibly emerge unless it was accepted by Great Britain. 18 Belgium played a crucial function in the codification of this duty to render aid. even though the early on attempts of the International Law Association 19 to codify the whole international nautical police failed, 20 it was through the Comité Maritime International, established in 1897 as a resultant role of a strictly belgian enterprise, 21 that ultimately the convention of Salvage was adopted in Brussels in 1910, in which the following planning was for the beginning time incorporated in an international legal instrument :
Every master is bound, so far as he can do indeed without serious danger to his vessel, her crew and her passengers, to render aid to everybody, even though an enemy, found at sea in danger of being lost. The owner of a vessel incurs no indebtedness by reason of dispute of the above provision. 22
evening though this convention did not stand the test of prison term, chiefly because of its lack to take into consideration environmental concerns, the duty to assist persons found at ocean in danger of being lost substantially remained unchanged in the follow-up conventionality 23 adopted this time under the auspices of the International Maritime Organization. 24 In the interim, this duty had besides been incorporated in the conventionality on the High Seas 25 and the alleged solas Convention. 26 At introduce, this rule besides forms region of the Constitution for the Oceans, i.e. the United Nations Convention on the Law of the Sea, and reads a follows :
Every State shall require the master of a ship flying its masthead, in so far as he can do so without unplayful risk to the embark, the crowd or the passengers :
- ( a ) to render aid to any person found at sea in danger of being lost ;
- ( b ) to proceed with all possible focal ratio to the rescue of persons in distress, if informed of their motivation of aid, in so far as such action may sanely be expected of him ;
- ( coulomb ) after a collision, to render aid to the other transport, its crowd and its passengers and, where possible, to inform the other embark of the name of his own embark, its port of register and the nearest larboard at which it will call. 27
But, as has been stressed in the legal literature, the obligation to render aid should be distinguished from the duty to rescue. 28 The former is a impression which has been purposefully observe undefined in the different instruments leaving sufficient leeway to the dominate of the ship to fulfil this duty. 29 The latter is an obligation alone imposed on States and has been defined in a much more detail way as will be demonstrated below. The legal framework of search and rescue operations has to be found chiefly in two international conventions. In chronological order they are the International Convention on Maritime Search and Rescue, adopted under the auspices of the international maritime organization in 1979, 30 and the 1982 Convention. Both documents will be addressed in become .
A 1979 sar Convention
The 1979 sar Convention was the first external legal instrument dealing with the subject topic in any detail. 31 At introduce there are 103 States parties to the conventionality representing about 62.45 percentage of the gross tonnage of the universe ’ randomness merchant ship. 32 The convention itself is very short, consisting of only eight articles, of which six furthermore business the alleged final clauses of external agreements, namely those provisions dealing with amendments, the manner to become a party, entrance into force, denunciation, deposit and registration, and languages. There is merely one hearty article entitled “ General Obligations Under the Convention ”, stating : “ The Parties undertake to adopt all legislative or other allow measures necessary to give full effect to the Convention and its Annex, which is an integral separate of the conventionality. Unless expressly provided differently, a reference book to the Convention constitutes at the like time a citation to its Annex ”. 33 The remaining planning, Article 2, has to do with the particular timeframe in which this convention has been negotiated, namely at the meter that the law of the sea was being wholly overhauled by means of the Third United Nations Conference on the Law of the Sea ( 1973–1982 ). It represents a standard clause which was much literally, or at least well, reproduced in many other agreements that tint upon police of the sea issues and that were concluded during this period of high gear doubt, which characterized this specific branch of international law at that time. 34 The kernel of the legal obligations of this convention is therefore to be found in the Annex attached to the Convention. Each State party is obligated to ensure that adequate search and rescue services are available in its coastal waters. 35 State parties are furthermore encouraged to enter into search and rescue agreements with neighbor countries in the region. 36 After the borrowing of the convention, the Maritime Safety Committee of the international maritime organization divided the world into thirteen search and rescue areas. 37 In these annexes one can besides find for the first time a detailed definition of what has to be understood by search, namely “ [ a ] nitrogen operation, normally coordinated by a rescue coordination center or rescue submarine kernel, using available personnel and facilities to locate persons in distress ”, and rescue, namely “ [ a ] n operation to retrieve persons in distress, provide for their initial medical or other needs, and deliver them to a topographic point of safety ”. 38 The latter is not normally the ship rendering aid. 39 It has consequently been argued that if the duty to render aid is required of the shipmaster, 40 the obligation to rescue rests only with the State. 41
B 1982 Convention
The purpose of the drafters of the 1982 Convention was not to replace all preexistent external conventions relating to the police of the ocean. On the adverse, the 1982 Convention only deals with the general rules determining competences but leaves all technicalities to the relevant conventions already existing or hush to be elaborated. 42 even though the 1982 Convention, which is a document largely adhered to by the external community, 43 does touch upon the exit of search and rescue, it only states the general principle :
Every coastal State shall promote the administration, operation and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea and, where circumstances so command, by way of common regional arrangements cooperate with neighbor States for this determination. 44
The details of the research and rescue government, therefore, are hush governed in kernel by the 1979 sar Convention today. 45
IV Application to the East China Sea
In club to in full appreciate the application of the above-mentioned legal framework to the East China Sea, one has of naturally first gear to ascertain the manner in which the countries surrounding this area have been uncoerced to subscribe to the relevant international legal instruments barely mentioned. As indicated in table 1, with the exception of Taiwan for obvious reasons explained above, all countries are a party to both documents. This stands in line to the South China Sea where until recently the majority of coastal States were not a party to the 1979 sar Convention. 46 furthermore, the countries in the East China Sea signed and ratified these two conventions at around the lapp fourth dimension, with the exception of South Korea with respect to the 1979 sar Convention, which only did so a decade after China and Japan .
Annex 1 IMO Availability of Search and Rescue ( SAR ) Services IMO Availability of Search and Rescue ( SAR ) Services source : International Maritime Organization, Availability of Search and Rescue (
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.8/Circ.3, 17 June 2011, Annex 4, at 15 .
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Annex 1 IMO Availability of Search and Rescue ( SAR ) Services IMO Availability of Search and Rescue ( SAR ) Services source : International Maritime Organization, Availability of Search and Rescue (
sar
) Services,
imo
Doc.
sar
.8/Circ.3, 17 June 2011, Annex 4, at 15 .
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Annex 1 IMO Availability of Search and Rescue ( SAR ) Services IMO Availability of Search and Rescue ( SAR ) Services reference : International Maritime Organization, Availability of Search and Rescue (
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) Services,
imo
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.8/Circ.3, 17 June 2011, Annex 4, at 15 .
- Download Figure
- Download figure as PowerPoint slide
The East China Sea forms part of the North-West Pacific search and rescue area as determined by the international maritime organization, 47 where search and rescue operations are conducted by China, the democratic People ’ s Republic of Korea, Japan, the Philippines, the Republic of Korea and the russian Federation. As stated in a note under this particular search and rescue area, however, “ Areas of duty have not so far been defined by the above States. however, each state in the area has undertaken, on receipt of a distress alert, to ensure that legal action will be taken to coordinate [ search and rescue ] in the most expeditious manner ”. 48 On the lapp map it is furthermore indicated that Japan has limited the area for which this country is creditworthy ampere army for the liberation of rwanda as search and rescue is concerned in the east and the south by a line connecting the coordinates 52° 30 ‘ N / 165° E, 17° N / 165° E, and 17° N / 130° E. Because this credit line is wholly located outside the East China Sea, the latter is quite covered by the last sentence of the like note on the function, which states that the search and rescue region of Japan is submit to bilateral discussions with the countries involved. 49 Because this article is limited to the East China Sea, the succeed auxiliary information can be added concerning that region proper. Japan has established 11 Maritime Rescue Coordination Centers, of which chiefly two are responsible for the East China Sea region, namely the one located in Kagoshima, creditworthy for the Kagoshima area, and the early in Naha, responsible for the Okinawa sphere. 50 China has a cardinal Center in Beijing, but besides 18 associated coast radio stations. 51 Of the latter four are chiefly creditworthy for the East China Sea as defined above, namely Fuzhou, Ningbo, Shanghai and Wenzhou. 52 The Republic of Korea, finally, had initially five independent Maritime Rescue Coordination Centers, each of which had two bomber Centers except for the Jeju Maritime Rescue Coordination Center, which had none. It was this last Center that was chiefly responsible for the East China Sea. 53 however, in 2010 this area rearranged its Rescue Coordination Centers with the Jeju Rescue Coordination Center receiving a Rescue Sub Center, namely Seowipo on the southerly part of the island Jeju facing the East China Sea. 54 The Republic of Korea is furthermore the only country giving the exact limits of the areas for which each of the five chief Centers is creditworthy. For the Jeju Center this zone covers about the northwestern part of the East China Sea starting from 30° N in the south. 55 Since it covers that area in the east up to the chinese mainland, a notice adds that foreign territorial waters lying on the inwardly of the polygon are to be excluded. 56 It is to be noted that the northeastern partially of the East China Sea is not covered in a similar way up to the coast of Japan, but rather splits the area approximately in two. 57 In this far from perfect model, the parties have felt the need to start cooperating in the field, i.e. by organizing joint search and rescue activities in the East China Sea. By way of examples, mention can be made of the 1999 articulation operation between Japan and South Korea 58 or the joint exert held between the Chinese Shanghai and the japanese Kagoshima Center. 59 This kind of cooperation seems to have been increasing over the years. 60 It will be clearly from the above psychoanalysis that the contemporary unilateral execution of the research and rescue obligations in the East China Sea under the 1979 sar Convention is in pressing need of coordination by the coastal States. As the site now stands, it is easily conceivable that this situation may at any time raise the tension alternatively of diminishing it. It should not be forgotten that the wholly 1995 Imia/Kardak crisis in the Aegean Sea 61 started as a search and rescue incident, where the captain of a turkish vessel in trouble contested the competence of greek vessels to intervene. 62 People lost their lives during the course of this incident, not because of being lost at sea, but rather by the manner in which this crisis was handled by the Greek and Turkish authorities in the consequence of the incident. furthermore overlapping search and rescue regions in early parts of the Mediterranean have besides given rise to increased tension, 63 indicate that this stepping stone for developing cooperation can well lead to an adverse effect, if not properly managed .
V Conclusions
research and rescue could easily become a build block for regional cooperation in the East China Sea because all States are a party to the most relevant international treaties, namely the 1982 Convention and, first, the 1979 sar Convention. 64 Besides punctual joint exercises at sea, as confidence build measures, 65 it is submitted that the States surrounding the East China Sea should try to conclude agreements between them intelligibly dividing their respective fields of process. Incidents occurring in disputed or overlapping areas can well deteriorate the general climate between the parties changing what appeared to be a building bloc to foster interstate cooperation into a slippery slope easily leading to an increased interstate animosity rather.
Read more: Maritime search and rescue – Documentary
very frequently it is thought that search and rescue cooperation is not very well suited in regions, such as the East China Sea, where maritime areas are disputed between the coastal States and established nautical boundaries are rather the exception than the rule. This, however, is not a fatality as illustrated by the recently concluded search and rescue agreement in the Arctic, an area of gamey tension where much of the nautical boundaries still have to be fixed in a definitive manner. 66 By means of a few simpleton lines on the map and a ditto savings clause 67 the Arctic rim countries were able to enter into a articulation legally binding legal document. 68 There is no rationality why a alike set about could not be applied to the East China Sea, particularly in view of the fact that China, Japan and the Republic of Korea are all legally bound by the 1979 sar Convention, and consequently besides by its Annex containing a similar savings clause. 69 China furthermore repeated this planning, with a specific reference to the exclusive economic zone and the continental shelf, in a declaration made at the time of submitting its instrument of approval to the 1979 sar Convention. 70 How Taiwan has to be involved in such closer cooperation is not obvious at present. different options however exist, ranging from associate membership in the international maritime organization, which could open the possibility to become a party to the 1979 sar Convention, to ad hoc solutions worked out by China, Japan and the Republic of Korea, as has happened in the playing field of fisheries. Leaving Taiwan out of the picture might be a sensible solution in the short circuit footrace, when countries are trying to overcome their own difficulties beginning, but seems to be a self-defeating proposition in the longer run .
