Toward a New Framework for Peaceful Settlement of China's Territorial and Boundary Disputes

Toward a New Framework for Peaceful Settlement of China’s Territorial and Boundary Disputes Toward a New Framework fo...

Author: Junwu Pan

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Toward a New Framework for Peaceful Settlement of China’s Territorial and Boundary Disputes

Toward a New Framework for Peaceful Settlement of China’s Territorial and Boundary Disputes By

Junwu Pan

LEIDEN • BOSTON 2009

This book is printed on acid-free paper. Library of Congress Cataloging-in-Publication Data Pan, Junwu. Toward a new framework for peaceful settlement of China’s territorial and boundary disputes / By Junwu Pan. p. cm. Includes bibliographical references and index. ISBN 978-90-04-17428-3 (hardback : alk. paper) 1. China—Boundaries. 2. China—Foreign relations—21st century. 3. Paciﬁc settlement of international disputes. I. Title. KNQ2390.P36 2008 341.4’2—dc22 2008053457

ISBN: 978 90 04 17428 3 Copyright 2009 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishing, IDC Publishers, Martinus Nijhoﬀ Publishers and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. printed in the netherlands

Contents Preface ................................................................................................... Acknowledgements ................................................................................ Cases Cited ...........................................................................................

ix xi xiii

Introduction ..........................................................................................

1

Part I Evolution and Current Tendencies of Resolution of Territorial and Boundary Disputes Chapter 1 The Nature of Territorial and Boundary Disputes ............... 1.1 Concepts of Territory and Boundary ........................................ 1.2 Concepts of Territorial and Boundary Disputes ........................ 1.2.1 International Disputes .................................................. 1.2.2 Classiﬁcation of International Disputes ........................ 1.2.3 Territorial and Boundary Disputes ................................ 1.3 Some Features of New Territorial and Boundary Disputes ........

19 19 23 23 24 27 32

Chapter 2 Settlement of Territorial and Boundary Disputes ................ 2.1 Concept of Settlement of Territorial and Boundary Disputes .... 2.2 Legal Justiﬁcations .................................................................... 2.2.1 Treaty ........................................................................... 2.2.2 Eﬀective Control .......................................................... 2.2.3 Uti Possidetis ................................................................. 2.2.4 History ......................................................................... 2.2.5 Geography .................................................................... 2.2.6 Economy ...................................................................... 2.2.7 Equity .......................................................................... 2.3 The Role of Critical Date in Territorial and Boundary Disputes ................................................................................... 2.4 Analysis of Existing Dispute Resolution Mechanisms ............... 2.4.1 The Principle of Peaceful Settlement of International Disputes ....................................................................... 2.4.2 Negotiations and Consultations .................................... 2.4.3 Mediation, Good Oﬃces, Conciliation and Inquiry .....

37 37 40 41 42 43 44 44 45 46 48 49 50 53 57

vi

Contents 2.4.4 Arbitration and Adjudication ........................................ 2.5 Some Tendencies Concerning International Dispute Resolution Mechanisms ............................................................

59 65

Part II Speciﬁc Features of China’s Approach to International Law and Dispute Resolution Mechanisms Chapter 3 China’s Approach to International Law .............................. 3.1 Problems .................................................................................. 3.1.1 The Continuity of the Traditional Concepts – Li and Fa .......................................................................... 3.1.2 The Chinese Pragmatic Approach to International Law .............................................................................. 3.1.3 Sovereignty – China’s Perforated Shield ........................ 3.1.4 Attitude to the Sources of International Law ................. 3.2 Opportunities ........................................................................... 3.2.1 Change in Ideology ...................................................... 3.2.2 A Rising Sense of Fa ..................................................... 3.2.3 Motives for Legal Perspective ........................................ 3.2.4 The Legal Implications of the Principles of Status Quo and Joint Development ................................................ 3.2.4.1 Status Quo ..................................................... 3.2.4.2 Joint Development ........................................ Chapter 4 China’s Approach to International Dispute Resolution Mechanisms ...................................................................................... 4.1 Problems .................................................................................. 4.1.1 The Role of Chinese Nationalism ................................. 4.1.2 Adherence to Negotiations and Consultations .............. 4.2 Opportunities ........................................................................... 4.2.1 Changing Attitude towards the ICJ .............................. 4.2.2 The Dispute Settlement System of the 1982 UNCLOS and China’s Options ..................................................... 4.2.3 The Political Implications of the ICJ and Other International Courts and Tribunals ............................... 4.2.3.1 Peace ............................................................. 4.2.3.2 Co-operation ................................................. 4.2.3.3 Development ................................................. 4.3 Outlines of the Proposed Framework ........................................

71 71 71 76 79 84 91 91 94 98 102 102 104

109 109 109 113 117 117 120 126 128 130 132 135

Contents

vii

Part III Case Study of China’s Current Territorial and Boundary Disputes Chapter 5 The Sino-Japanese Disputes in the East China Sea ............. 5.1 History of Disputes .................................................................. 5.2 Conﬂicting Claims ................................................................... 5.2.1 Conﬂicting Claims over the Ownership of the Diaoyu/Senkaku Islands ............................................... 5.2.1.1 Chinese Claims ............................................. 5.2.1.2 Japanese Claims ............................................. 5.2.2 Diﬀerent Views on the Maritime Delimitation in the East China Sea .............................................................. 5.2.2.1 Chinese View ................................................ 5.2.2.2 Japanese View ................................................ 5.3 Appraisal .................................................................................. 5.3.1 The Dispute over the Sovereignty of the Diaoyu/Senkaku Islands ............................................... 5.3.2 The Maritime Boundary Dispute .................................. 5.4 A New Framework for Settlement .............................................

139 139 144

Chapter 6 The Disputes over the Spratly Islands ................................. 6.1 History of Disputes .................................................................. 6.2 Conﬂicting Claims ................................................................... 6.2.1 Chinese Claims ............................................................ 6.2.2 Vietnamese Claims ....................................................... 6.2.3 Philippine Claims ......................................................... 6.2.4 Malaysian Claims ......................................................... 6.2.5 Bruneian Claims ........................................................... 6.3 Appraisal .................................................................................. 6.3.1 The Situation in the Light of the Indonesia v. Malaysia case ............................................................................... 6.3.2 Treaties Related to the Case of the Spratly Islands Disputes ....................................................................... 6.3.3 Eﬀectivités ..................................................................... 6.4 A New Framework for Settlement .............................................

163 163 168 168 174 174 175 175 176

Chapter 7 The Sino-Indian Border Disputes ....................................... 7.1 History of Disputes .................................................................. 7.2 Conﬂicting Claims ................................................................... 7.2.1 Indian Claims ............................................................... 7.2.2 Chinese Claims ............................................................

191 191 196 196 200

144 144 147 148 148 150 152 152 154 159

176 178 180 184

viii

Contents

7.3 Appraisal .................................................................................. 7.3.1 The Situation in the Light of Frontier Dispute (Benin/Niger) Case ........................................................ 7.3.2 Western Sector ............................................................. 7.3.3 Middle Sector ............................................................... 7.3.4 Eastern Sector ............................................................... 7.4 A New Framework for Settlement .............................................

203 204 206 208 209 211

Conclusions ..........................................................................................

217

Bibliography .......................................................................................... Index .....................................................................................................

219 235

Preface This book provides a precious chance to take legal perspectives of China’s territorial and boundary disputes against the new background of China’s increasingly integrating itself into global economic, political and legal systems. Based on international law and China’s new policy, the author examines the possibility of using the third party, which is notably missing in China’s international engagement, to settle China’s territorial and boundary disputes. This book pinpoints the problems and opportunities China is confronting in its attitude to international law and international courts and tribunals. In the light of international law, especially of norms and principles used by the International Court of Justice and other international courts and tribunals, the author creatively proposes a new framework for settlement of China’s territorial and boundary disputes. The author, who was awarded law PhD by King’s College London, is one of promising young scholars specializing in China’s territorial and boundary issues.

Acknowledgements This book would not have been possible without the guidance and help of Professor Rein Müllerson. I thank him for devoting his time, energy and patience for scrutinising my ideas and providing me with courage, inspirations and resources. I consider myself privileged to have been one of Professor Rein Müllerson’s doctoral students. I am also very thankful to Doctor Natasha Kuhrt, for her time and energy in reading and evaluating my writings. I thank Dr. Amazu Asouzu for being interested in my research topic at the very beginning. I thank Dr. Mingwai Lau for his precious help when I was in diﬃculties and his proofreading. I thank Mr. Reto Winckler for proofreading my book. I am very grateful to K. C. Wong Scholarship and Chinese Scholarship Council for their support of my PhD research in King’s College London. I am also thankful to Maughan Library for providing a very nice environment for writing this book. I have to express my apologies to my wife, Tongmei, and my little son, Yuanfu, whose support and best wishes always gave me great courage to go through various diﬃculties when I stayed alone in London writing this book. Junwu Pan Maughan Library, London 22 September 2008

Cases Cited Aegean Sea Continental Shelf, [1978] ICJ Reports, p. 3. Anglo-Norwegian Fisheries, [1951] ICJ Reports, p. 116. Arbitral Award Made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua), [1960] ICJ Reports, p. 192. Argentine/Chile arbitration (1977), 21 RIAA, vol. xxi, pp. 53–264. Beagle Channel Award (1977), 52 ILR, p. 93. Brcko Area Arbitration (Rep. Srpska v. Fed. of Bosn. & Herz.) (1997), 36 ILM, pp. 396–409. Clipperton Island Arbitration (France v. Mexico) (1932), 26 AJIL, p. 390. Corfu Channel, [1949] ICJ Reports, p. 4. Continental Shelf (Tunisia v. Libya), [1982] ICJ Reports, p. 18. Continental Shelf Case (Libyan v. Malta), [1985] ICJ Reports, p. 13. Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. U.S.), [1984] ICJ Reports, p. 246. Case Concerning the Delimitation of the Continental Shelf (U.K. v. France), [1978] 18 RIAA, p. 3. Delimitation of Maritime Areas Between Canada and France: Decision in Case Concerning Delimitation of Maritime Areas, [1992] 31 ILM, p. 1145. Eastern Greenland case, [1933] PICJ, Ser A/B, No. 53 Eritrea – Yemen Arbitration Concerning Maritime Delimitation (1999), [22 Apr. 2008] Fisheries Jurisdiction (UK v Iceland) case, [1974] ICJ Reports, p. 3. Frontier Dispute (Burkina Faso/Republic of Mali), [1986] ICJ Reports, p. 554. Frontier Dispute (Benin/Niger), [2005] ICJ Reports 2005, p. 90. Guinea/Guinea-Bissau Maritime Delimitation Case (1992), 77 ILR, p. 636. Haya de la Torre (Colombia/Peru), [1951] ICJ Reports, p. 71. Honduras Border case (Guatemala v. Honduras) (1933), 2 RIAA, p. 1307. Kasikili/Sedudu Island (Botswana/Namibia), [1999] ICJ Reports, p. 1045. Island of Palmas Arbitration case, 2 RIAA, p. 829. Land and Maritime Boundary (Cameroon v. Nigeria: Equatorial Guinea Intervening), [2002] ICJ Reports, p. 303. Land, Island and Maritime Frontier case, [1992] ICJ Reports, p. 351. Legal Status of Eastern Greenland (Denmark v. Norway), [18 Mar. 2008] Maritime Delimitation and Territorial Questions (Qatar v. Bahrain), [2001] ICJ, p. 40. Mavrommatis Palestine Concessions (Greece v. U.K.), [1924] PCIJ ser. A, No. 2 Military and Paramilitary Activities in and against Nicaragua, [1984] ICJ Reports, p. 392. Minquiers and Ecrehos (France/United Kingdom), [1953] ICJ Reports, p. 47. Nicaragua v. Honduras, [1988] ICJ Reports, p. 69. North Sea Continental Shelf cases, [1969] ICJ Reports, p. 3. Rann of Kutch Arbitration (1968), 7 ILM, p. 633. Sovereignty over Certain Frontier Land (Belgium/Netherlands), [1959] ICJ Reports, p. 209. Sovereignty over Pulau Litigan and Pulau Sipadan (Indonesia v. Malaysia), [2002] ICJ Reports, p. 625.

xiv

Cases Cited

Taba Area Arbitration (1988), 27 ILM, p. 1421. Temple of Preah Vihear, [1962] ICJ Reports, p. 6. Territorial Dispute (Libyan Arab Jamahiriya v. Chad), [1994] ICJ Reports, p. 6. Trail Smelter Arbitration (US v. Canada) (1938 and 1941), 3 RIAA, p. 1905. Trial of Pakistani Prisoners of War (Pakistan v. India), [1973] ICJ Reports, p. 347. Tunisia/Libya case, [1982] ICJ Reports, p. 18. United States Diplomatic and Consular Staﬀ in Tehran case, [1980] ICJ Reports, p. 3. Venezuela-British Guiana Boundary Award, 92 British and Foreign State Papers (1899–1900), p. 160.

Introduction Although the People’s Republic of China (hereinafter the PRC or China) has successfully resolved some of the territorial and boundary disputes (with Burma, Afghanistan, Mongolia, Pakistan, Vietnam, Russia, Kazakhstan and Kyrgyzstan), it still has such disputes with some of its neighbours. In the east, it has the territorial and boundary disputes with Japan; in the south, it is involved in the disputes over the Spratly Islands with Vietnam, Malaysia, the Philippines and Brunei; in the southwest, the border dispute with India has not yet been resolved. A dispute if unresolved may give rise to a conﬂict.1 This is especially true in the case of territorial and boundary disputes.2 The 1962 Sino-Indian War,3 the 1969 armed clashes on the Sino-Soviet border4 and the 1979 Sino-Vietnamese War5 are the representative cases. In the international community, war is more likely to break out between states if they are involved in an unresolved territorial dispute than if they are not.6 Thus, the academic research on the settlement of even seemingly intractable territorial and boundary disputes, though challenging, is nevertheless necessary. Territorial and boundary disputes diﬀer but are related. They are diﬀerent because territorial questions involve modes of acquiring title such as discovery, occupation, cession, etc., while boundary disputes largely raise issues concerned with boundary-making (delimitation, demarcation and enforcement) and they generate

1 2

3

4

5

6

J. O’Brein. International Law (Cavendish Publishing Limited, London 2001), p. 633. S. A. Kocs. ‘Territorial Disputes and Interstate War, 1945–1987’ 57 (1) The Journal of Politics (1995), pp. 159–75. The Sino-Indian War, also known as the Sino-Indian Border Conﬂict, was a war between China and India. The initial cause of the conﬂict was a disputed region of the Himalayan border in Arunachal Pradesh, known in China as South Tibet. N. Maxwell. ‘China and India: The Un-Negotiated Dispute’ (43) The China Quarterly (1970), pp. 47–80. The Sino-Soviet border conﬂict of 1969 was a series of armed clashes between the Soviet Union and People’s Republic of China. An island in the Ussuri River, called Zhenbao Island by the Chinese and Damansky Island by the Soviets, almost led the Soviet Union and People’s Republic of China to war in 1969. The Sino-Vietnamese War was a brief but bloody border war fought in 1979. The reason cited for the war was the supposed mistreatment of Vietnam’s ethnic Chinese minority and the territorial and border disputes. X. Zhang. ‘China’s 1979 War with Vietnam: A Reassessment’ 184 The China Quarterly (2005), pp. 851–874. S. A. Kocs, op. cit. (1995), pp. 159–75.

2

Introduction

the applicability of an altogether diﬀerent set of prescriptions of international law.7 They are related because both boundary and territorial questions are part of the larger question of territorial sovereignty and they involve comparable sets of claims and counter-claims and legal policies.8 For example, the Sino-Indian border dispute involves the conﬂicting claims of title to the areas of land territory larger than 100,000 square kilometres. Many scholars like to exclude the maritime boundary disputes from their study while they are focusing on the territorial issues since they believe that the maritime boundaries are governed by the law of the sea, therefore belonging to another ﬁeld.9 But if the focus is placed on a framework for dispute settlement, the two kinds of disputes (land and maritime) may be closely related. For instance, without a proper treatment of the status of the Diaoyu/Senkaku Islands, which are located in the East China Sea, it would be impossible for China and Japan to draw a maritime delimitation line in the East China Sea. Shall the islands be used for drawing the baselines? If yes, who owns the title? The answers to such questions are prerequisite for the settlement of the maritime boundary dispute in this maritime area. On land, territorial and boundary questions are part of the larger question of territorial sovereignty.10 Where the rules of acquiescence, recognition and estoppel are applied, the diﬀerence between territorial and boundary disputes could be ignored. In order to work out an applicable settlement framework, this book covers China’s territorial as well as boundary disputes. In China, there is a widely accepted theoretical classiﬁcation of international disputes. They all fall into two major categories: political disputes and legal disputes. From this classiﬁcation follows an approach that political disputes shall be resolved by diplomatic methods and legal disputes by legal methods.11 That is to say, the so-called “political disputes” are unjusticiable. But our research shows that there are many diﬃculties with such an approach. In reality, almost all international disputes have mixed character, that is to say, they are both political and legal. If this is so, how can we classify disputes? What are the criteria? Does the case law of the

7

8

9

10 11

A. O. Cukwurah. The Settlement of Boundary Disputes in International Law (Oceana Publications, Manchester U.P. 1967), p. 6. S. P. Sharma. Territorial Acquisition, Disputes and International Law (Martinus Nijhoﬀ Publishers, The Hague 1997), p. 23. For example, Byron N. Tzou. See B. N. Tzou. China and International Law: The Boundary Disputes (Praeger Publishers 1990). S. P. Sharma, op. cit. (1997), p. 23. All the Chinese international law textbooks contain the similar description. See T. Wang. International Law (Law Press, Beijing 1995), pp. 568–613; M. Duan. International Law (Peking University Press, Beijing 1997), pp. 447–470; X. Wang. International Law (Zhongguo zhengfa zaxue chubanshe (China Politics and Law University Press), Beijing 2002), pp. 345–363; Y. Mu. International Law (Falü chubanshe (Law Press), Beijing 1998), pp. 201–243; A. Zhang. International Law (Renmin fayuan chubanshe (People’s Court Press), Beijing 2000), pp. 672–743.

Introduction

3

International Court of Justice (hereinafter the ICJ) support such a classiﬁcation? China applies a pragmatic approach to law (domestic law and international law) and international disputes. The policy towards the settlement of territorial and boundary disputes changes as Chinese national interests change. Does this pragmatic approach enable China to classify the international disputes as they wish? Where do Chinese territorial and boundary disputes ﬁt in the light of classiﬁcation? In fact, all territorial and boundary disputes possess rather prominent political and legal features. In most situations, non-legal arguments are of a greater prominence for disputing states.12 The disputants often become very self-righteous and believe they have the right in their claims and that they may be even justiﬁed to resort to force if necessary. When they have no obligation to submit the dispute to procedure of a third party settlement, their arguments are rather addressed to their own supporters either in the country or beyond. Generally, states are more reluctant to resort to judicial procedures in matters involving territorial interests. But in some cases, political arguments become so hopeless and fruitless that no solution seems possible. This is just what China is experiencing in its territorial and boundary disputes with Japan, India, Vietnam and other neighbours. Although it is unnecessary and even impossible to bring every territorial or boundary dispute before an international court, tribunal or arbitration, would it be wise if the disputing parties were to consider their dispute in the light of jurisprudence of the ICJ and other third party instruments so that they may break the vicious circle of the endless political arguments. A legal perspective of a territorial or boundary dispute does not always mean a fully satisfactory settlement, but it helps the parties to ﬁnd a compromised solution. This book suggests a legal perspective, i.e. a perspective based on the principles and rules adopted mainly by the ICJ and other courts, tribunals and arbitrations, towards China’s territorial and boundary disputes. The practice of international courts and tribunals conﬁrms that there is no “political question” doctrine in international law, and territorial and boundary disputes are, in principle, justiciable. In the case of Nicaragua v. U.S., the ICJ ruled out the doctrine that disputes are not “justiciable” because of their political nature.13 In other words, it is unacceptable to claim that territorial and boundary disputes are not “justiciable” because of their political nature. In theory at least, all territorial or border disputes can be referred to the ICJ although they call for extensive studies of historical, political, economic and other issues.14 In fact, the ICJ has never refused to exercise its jurisdiction over cases because of the concerned

12 13

14

J. R. V. Prescott. Political Frontiers and Boundaries (Allen & Unwin, London 1987), p. 107. Case concerning Military and Paramilitary Activities in and against Nicaragua, ICJ Reports 1984, p. 392. R. Müllerson. Ordering Anarchy: International Law in International Society (Martinus Nijhoﬀ Publishers, The Hague 2000), pp. 39–40.

4

Introduction

territorial interests of states. Just between 1990 and 2005, thirteen cases concerning territorial title or boundary delimitation were brought before the ICJ.15 The Court has greatly contributed to the settlement of various territorial and boundary disputes. Its judgments also provide solid legal arguments for disputes that are not brought to the ICJ. The cases concerning territorial and boundary disputes that were brought to the ICJ from 1987 to 2002 show that majority of modern territorial and boundary disputes are closely related to economic interests,16 which in most cases concern rights to the exploration and exploitation of oil and gas resources in disputed areas.17 Most of China’s current territorial and boundary disputes are also related to potential energy reserves. The disputes over the maritime delimitation line and the title of Diaoyu/Senkaku Islands in the East China Sea as well as the dispute over the Spratly Islands in the South China Sea became heated just after the discovery of oil and gas in the surrounding areas.18 When the disputing parties share the view that their dispute should be settled for mutual economic beneﬁt, it seems more likely for them to take a serious legal perspective of their dispute and agree to compromise. Is this also true in the case of China’s motivation? This should not be ignored in the discussion of frameworks for the settlement of China’s territorial and boundary disputes. From legal perspective, settlement of a territorial or boundary dispute means achieving ‘stability and ﬁnality’.19 If the disputing parties have achieved a stable border in the disputed area through a legal process, there is a presumption that the dispute is resolved and the border is permanent. An important objective of the settlement is to put an end to the state of tension and to achieve frontier stability. But achievement of lasting peace in the disputed areas has relevance to the psychology of the disputing parties. The psychological elements are closely related to how much the disputing parties are satisﬁed with the settlement. In territorial and boundary disputes, zero-sum solutions are generally impracticable. In many cases, it is necessary for the disputing parties to make some economic arrangements beforehand to secure the mutual beneﬁt from the resources in the disputed areas. In

15

16

17

18

19

See the List of Contentious Cases before the ICJ at [29 Nov. 2007]. C. Paulson. ‘Compliance with Final Judgments of the International Court of Justice since 1987’ 98 AJIL (2004), p. 434. K. Highet. ‘New Courts and Old, Old Law and New, and Problems to Come’ in G. Blake (ed.) Boundaries and Energy: Problems and Prospects (Kluwer Law International, London/the Hague 1998), pp. 415–31. See News at [26 Nov. 2007] and [26 Nov. 2007]. Temple of Preah Vihear, ICJ Reports 1962, p. 34.

Introduction

5

order to achieve mutual, lasting peaceful relations, it is essential for the disputants to achieve a legitimate compromise based on international law, especially the rules and principles elaborated by international courts and tribunals. The law-orientated process may help the disputing parties to reassess their claims and overcome some psychological problems, helping them become more willing to accept a settlement based on legal principles and rules. States use treaties, eﬀective control, uti possidetis, estoppel, geography, economic factor, history, culture, elitism, ideology, strategy, convenience and necessity, and State interests to claim territorial titles.20 Generally, the justiﬁcations supported by the ICJ are treaties, eﬀective control, uti possidetis, estoppel, geography and economic factor. In territorial disputes, the ICJ usually gives preference to treaties considering that treaties are more persuasive and determinative. In the absence of valid treaties, the Court usually turns to eﬀective control and uti possidetis. Estoppel can overturn, in some circumstances, other justiﬁcations, as it did, for example, in the case of Temple of Preah Vihear.21 Under the 1982 United Nations Convention on the Law of the Sea (hereinafter the 1982 UNCLOS), the delimitation of the exclusive economic zone/the continental shelf between States with opposite or adjacent coasts shall be eﬀected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the ICJ, in order to achieve an equitable solution.22 That is to say, no matter what speciﬁc approach is applied to the delimitation, an equitable solution should be achieved. The ICJ case law suggests that neither the natural prolongation principle nor the equidistance principle is of customary international law. They are just alternative methods of maritime delimitation. Other methods, such as the proportionality may also lead to an equitable solution. In the light of the settlement of a border dispute, the ICJ would at ﬁrst like to see if there is a valid boundary treaty. If yes, the border shall be delimited according to what the treaty provides. If not, the principle of eﬀective control shall be determinative. If there is neither a valid boundary treaty nor a proof of eﬀective control, distinct geographical features such as watershed, middle line and thalweg are likely to meet the principle of equity.23 The Statute of the ICJ provides that judicial decisions are subsidiary means for the determination of rules of law.24 Using this dissertation, the three cases concern-

20

21 22 23

24

N. Hill. Claims to Territory in International Law and Relations (Greenwood Press Publishers, Connecticut 1976), pp. 35–164. Temple of Preah Vihear, ICJ Reports 1962, p. 6. UNCLOS, Art. 74(1) and 83(1). C. H. Lu. The Sino-Indian Border Dispute: A Legal Study (Greenwood Press, Connecticut 1986), p. 101. Article 38 (1)(d) of Statute of the ICJ.

6

Introduction

ing China’s territorial or boundary disputes are all appraised in the light of the relevant ICJ case law. Article 33(1) of the UN Charter contains a list of peaceful methods of settlement of international disputes. It requires the parties to any dispute to seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements or other peaceful methods of their own choice. Under this “free choice” principle, States are entitled to choose their favourite peaceful methods of settlement of their disputes. But it seems to give too much freedom to states. The “free choice” principle makes it possible for a state to adopt a negative attitude to the ICJ and other international courts or tribunals. That is why the ICJ is also prone to attacks of lack of jurisdiction.25 Generally speaking, the PRC takes a negative attitude towards the jurisdiction of the ICJ, but it never challenges the authority of the ICJ (at least since 1971, the year when it regained its lawful seat in the United Nations). It seems that the principle of the free choice of settlement methods may have its validity just in an eﬀective settlement framework. Negotiation still remains one of the most important instruments for settlement of territorial and boundary disputes. Some tendencies concerning dispute resolution mechanisms remind us of the importance of the exhaustion of negotiations in a settlement framework. In order to settle such sensitive disputes as territorial and boundary disputes, the disputants should be given enough chances to negotiate taking into consideration relevant principles and norms of international law, especially as they are used by international courts and tribunals. But, in no way can it be justiﬁed that diplomatic negotiations are the only acceptable method of settlement of territorial and boundary disputes. Both adjudication and arbitration have displayed their usefulness in the settlement of territorial and boundary disputes. Comparatively, arbitration gives more ﬂexibility than adjudication in achieving adjustment in settlement. The necessary intervention of a third party may help the disputants to settle their disputes without unnecessary delay and loss of face. China emphasizes the role of negotiations for settlement of its territorial and boundary disputes. Although there are some successful cases, for example, the settlement of the land border disputes with Burma, Afghanistan, Mongolia, Pakistan, Vietnam, Russia, Kazakhstan and Kyrgyzstan, negotiations may become very ineﬀective if parties’ positions are far apart and there are no common interests to bridge the gap.26 More than 50 years of negotiations between China and India on their border disputes have been fruitless and futile. The method of negotiations is

25

26

G. L. Scott. ‘The ICJ and Compulsory Jurisdiction: The Case for Closing the Clause’ (58) AJIL (1987), p. 58. J. G. Merrills. International Dispute Settlement (Cambridge University Press, Cambridge 1998), p. 23.

Introduction

7

of political nature and it is often submissive to both the internal and external pressures. These pressures may make any compromise very diﬃcult and complex. What is China supposed to do if its traditional method of negotiations fails in settling its territorial and boundary disputes? Is there any possibility that China would use a third party method to settle some of its territorial and boundary disputes? In fact, arbitration is rather appealing for China to settle its maritime boundary dispute with Japan in the East China Sea, because China and Japan have both acceded to the 1982 UNCLOS and therefore maritime delimitation in the East China Sea can be carried out in accordance with the Law of the Sea. Arbitration procedure allows the parties to choose arbitrators, applicable rules and put speciﬁc questions for the arbitration. But China is still reluctant to use arbitration as a method in its settlement framework. There should be some factors that can explain China’s reluctance. The year of 1978 can be called the watershed in the history of the PRC. In that year, the Chinese leader Deng Xiaoping started to open up the country both internally and internationally and China’s attitude to international law also began to change.27 Before 1978, as James C. Hsiung concluded, both in theory and practice, the PRC was diﬀerent from the West by accepting certain norms of the established code of international conduct but rejecting others.28 For example, the Communist Chinese theory and practice as to the conclusion of international treaties was diﬀerent from that of the West.29 China rejected all so-called “unequal treaties”. Many old territorial and boundary treaties just fell into this category. But since 1978, with its willingness to merge into international community, China’s attitude and practice have become more ﬂexible. For example, China has accepted the discussion of its territorial and boundary disputes with its neighbours using in these discussions so-called “unequal treaties”. One noticeable case is the successful settlement of Sino-Russian border disputes in the 1990s and the early 2000s. The research into these changes enables us to draw some important implications. The traditional concepts of Li (Confucianism) and Fa (legalism) still work at the level of sub-consciousness in China. Li and Fa are the basic concepts in the Chinese philosophy and provide a unique way of understanding the rules governing human society. Traditionally, Li is superior to Fa and Fa should grow out of Li, otherwise Fa is not real Fa (Law is not real law). Any law that is not in accordance with so called Li (moral rules) may lose not only its legitimacy but also legality. Consequently, China’s doubts about international Li (international moral rules) have led to its

27 28

29

H. Xue. ‘China’s Open Policy and International Law’ 4 (1) CJIL (2005), pp. 133–139. J. C. Hsiung. Law and Policy in China’s Foreign Relations: A Study of Attitude and Practice (Columbia University Press, New York 1972), p. 315. H. Chiu. ‘Communist China’s Attitude toward International Law’ 60 (2) AJIL 261 (Apr. 1966), p. 266.

8

Introduction

inconsistency in using international law for the settlement of its territorial and boundary disputes. For example, China feels justiﬁed to refuse the principle of uti possidetis during its negotiations with its neighbours, because this principle, from the Chinese viewpoint, is the result of the imperialistic invasion and not growing out of Li. Before international Li is completely established, international law is rather a temporary expedient than a permanent method. China’s approach to international law has nevertheless been characterized by its pragmatism. However, the Chinese pragmatic approach often interprets international law in the light of the Chinese government’s foreign policy interests. Such a pragmatic practice neglects the importance of the stability created out by lasting rules and principles and will, more likely, undercut the goal of constructing a stable and law-ruled international society. The Chinese attitude to sovereignty and sources of international law also reﬂects the pragmatic feature. The principle of “mutual respect for each other’s sovereignty”, which is consistently advocated by China, is diﬀerent from either the theory of “absolute sovereignty” or the one of “relative sovereignty”. It can be interpreted as China’s ambiguous attitude to sovereignty although it seems closer to the absolute sovereignty theory when at issue are territorial interests. China’s ambiguity has led to clashes between dogma and practice on several occasions. This has made its neighbours anxious about their options for settlement of their territorial and boundary disputes. China emphasizes the evidential role of the General Assembly in interpreting international law rather than the role of the ICJ because it believes that the Third World policies can inﬂuence the General Assembly resolutions. The decisions made by international courts and tribunals, which are believed to have been under undue Westerners’ inﬂuence, are usually missing in China’s negotiations strategy. As a result, China holds a negative attitude to the ICJ and is the only one, among the ﬁve permanent members of the Security Council, refusing to recognize the jurisdiction of the ICJ. China’s attitude to the sources of international law also contains a reference to an unstable nature of customary international law. Some customary rules may not be respected by China in some cases. For example, China may refuse to recognize some territorial and boundary treaties because it treats them as “unequal treaties”, which are declared null and void by the Chinese government. China’s adherence to negotiations and consultations appears quite consistent in consideration of the fact that the PRC has never used any other methods for the settlement of its disputes. The Chinese nationalism (sometimes called patriotism in China) strengthens such an adherence because it is linked to xenophobia and the involvement of third party is perceived as foreign interference. Now the Chinese government cherishes pragmatic nationalism as an eﬀective instrument to deal with its domestic and international crises. For example, nationalism helps the Communist government to maintain its legitimacy. China’s territorial and boundary

Introduction

9

disputes are closely associated with the Chinese nationalism and this increases the complexity of resolving China’s territorial and boundary disputes. Opportunities for constructing a new framework of dispute settlement are reﬂected in some positive changes that have taken place in China’s negotiating strategy, like sense of law, use of legal instead of political arguments, attitude towards international courts and tribunals and foreign policy. China has given up the idea of so-called Socialist international law30 and accepted one international law governing relations in international society. Although Confucianism, which stresses the moral role in society rather than the legal one, still works in the Chinese value system, the general sense about law has improved greatly and undoubtedly, this trend seems to continue. The Chinese have realized the importance of using international legal system to seek social justice. In February 1993, China acceded to the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention) and has agreed to limited arbitration options in most of its investment treaties.31 More recently, China’s ratiﬁcation of the 1982 UNCLOS and its entry into the WTO also testify to this eﬀect. In the economic ﬁeld, China has accepted the jurisdiction of international courts and tribunals. This is quite an impressive progress, especially when one considers the history of the PRC’s negative attitude towards any third party settlement. Hopefully, China will extend this practice into other ﬁelds. China’s interest-oriented foreign policy and legal obligations imposed by binding international treaties will also push China further on the road of giving more importance to law. China’s national interests are now summarized in the three words: peace, co-operation and development.32 China’s “good neighbour” policy in its present framework of settlement of territorial and boundary disputes reﬂects these values. It is quite logical to expect that international law, international courts and tribunals and their case law shall contribute to the enhancement of these values. The arrangement to resolve disputes provided in the 1982 UNCLOS and 30

31

32

Socialist international law was based on the conception that there were two separate systems of international law co-existed in the world: the capitalist and the socialist. Socialist countries were just governed by socialist international law. It was impossible for socialist international law to be compatible with capitalist international law. All the treaties, agreements concluded between capitalist and socialist countries were just the result of a ﬁerce struggle between the two parties and a compromise between them reﬂected the reality of the power balance rather than common values. In 1978, when China opened its door to the outside and attempted to attract foreign investment into China, this theory was completely dropped. M. A. Cymrot. ‘Investment Disputes with China’ (Aug.–Oct.) Dispute Resolution Journal (2006), at [14 Jan. 2008]. See the statement given by the former Chinese Foreign Minister Mr. Li Zhaoxing at the General Debate of the 59th Session of the United Nations General Assembly, at [6 Dec. 2007].

10

Introduction

the numerous treaties on friendly relations signed by China with its neighbours in the past 20 years have far-reaching legal implications for China’s future dispute resolution system. At present, one tough problem China is confronted with is how to resolve the remaining territorial and boundary disputes in time to expand its regional economic cooperation. That is to say, what shall China do when its traditional preference for negotiations fails? The three major territorial and boundary disputes involving China and its neighbours are the Sino-Japanese disputes in the East China Sea, the disputes over the Spratly Islands in the South China Sea and the Sino-Indian border disputes. Rounds and rounds of political negotiations have not led to any breakthrough. It is necessary to construct a new pattern, or at least to reform the old one, to make settlement of these disputes possible. Appraisal from the perspective of the relevant ICJ case law seems quite adequate for ﬁnding solutions to China’s territorial and boundary disputes. Although it does not mean that every territorial or boundary dispute should be brought before an international court or tribunal, it is necessary for the disputing parties to appraise their dispute on the basis of previous cases of international courts and tribunals. In the North Sea Continental Shelf cases, the Special Agreements requested the Court to decide the question: “What principles and rules of international law are applicable to the delimitation as between the Parties of the areas of the continental shelf in the North Sea which appertain to each of them beyond the partial boundary determined by the above-mentioned Convention of 1 December 1964?”33 It proved that the Court had no diﬃculty in dealing with this case.34 The ICJ is fully qualiﬁed for clariﬁcation of international principles and rules concerning territorial and boundary disputes. A court symbolizes the ideal of the rule of law in the international system.35 The ICJ, besides resolving speciﬁc disputes, does contribute to peace through its role in the development of and clariﬁcation of norms and principles of international law.36 The clariﬁcation of the law by the Court not only strengthens and promotes respect for the rule of law but also gives parties to disputes that are not before the Court much more common ground to negotiate. The similar or relevant cases judged by the Court would certainly help parties to disputes to check their former justiﬁcations and strategies. The appraisal of the three major territorial and boundary disputes

33 34 35

36

ICJ Reports 1969, p. 6. I. Brownlie. The Rule of Law in International Aﬀairs (Nijhoﬀ Publishers, The Hague 1998), p. 130. R. B.Bilder. ‘International Dispute Settlement and the Role of the International Adjudication’ in L. Damrosh (ed.) The International Court of Justice at a Crossroads (Transnational Pub., Dobbs Ferry/New York 1987), p. 174. B. S. Chimni. ‘The International Court of Justice and the Maintenance of Peace and Security: The Nicaragua Decision and the United States Response’ 35 ICLQ (1986), pp. 960–9.

Introduction

11

involving China based on the ICJ cases could help China and its counterparts to rethink their claims and settlement frameworks. As each territorial or boundary dispute certainly has its own speciﬁc features, the corresponding settlement framework is somewhat diﬀerent. Nevertheless, to deal with China’s territorial and boundary disputes, a new settlement framework is designed on the assumption that international law and the ICJ case law shall form a basis for the process of settlement. An express agreement to take account of the principles and rules as interpreted by the ICJ is a very important initial step because it concerns the parties’ conﬁdence-building. One of the most precious experiences from the settlement of the Sino-Russian border disputes is just how to build up conﬁdence by respecting speciﬁc legal principles.37 Professor Rein Müllerson used the Rann of Kutch Arbitration to illustrate the impossibility of resolving important and sensitive international disputes separately from the political, economic and other context.38 Owing to the sensitivity, importance and complexity of China’s territorial and boundary disputes, a successful settlement would depend on what kind of political eﬀort should be made to bring the disputing parties to the legal starting line. Political eﬀorts could be diﬀerent in their content in the light of the speciﬁc disputes, but the eﬀorts themselves would be incorporated into a new law-based framework. In general, China’s old dispute resolution framework is just a one-phase process, namely, the diplomatic negotiation. It is rather a political bargain than anything else, during which political justiﬁcations outweigh legal justiﬁcations. If the disputing parties hold greatly divergent views, negotiations usually come into stalemate. The new framework pursued by this book is designed as a three-phase process: two diplomatic and one judicial or quasi-judicial. The ﬁrst phase consists of negotiations and consultations. In this phase, the parties are supposed to try to settle their dispute through negotiations and consultations. It would be great if they could achieve a settlement through face-to-face diplomatic talks. But this is not always the case. If the parties fail to reach a settlement through negotiations, they need to move to the second phase, that is to say, they need to make some new arrangements. They should agree to use relevant principles and rules elaborated by the ICJ, international tribunals or arbitrations, and then restart talks on that new basis. They may also agree to develop the disputed area jointly regardless of the issue of sovereignty or title. Whatever the arrangements are, one of the purposes is to increase the parties’ political will and conﬁdence. The third phase would be judicial or quasi-judicial. This means that if the disputing parties cannot resolve their dispute in the process of the ﬁrst two phases, they

37

38

C. E. Ziegler. Foreign Policy and East Asia, Learning and Adaptation in the Gorbachev Era (Cambridge University Press, Cambridge 1993), pp. 72–73. R. Müllerson, op. cit. (2000), p. 42.

12

Introduction

are supposed to make a special agreement to submit their dispute to a third party settlement. The third phase is not always necessary, but it is quite essential to have this phase in mind in the assumed new framework. One party may propose a special agreement providing that both parties shall submit the maritime delimitation dispute to an arbitral tribunal like the International Tribunal for the Law of the Sea or an international court like the ICJ if they fail to reach an agreement within a limited time. It would be diﬃcult for the other party to refuse this proposal and suspend the settlement, because this act would inevitably damage his international reputation. As Bilder has written, “conceivably, it [adjudication] may lead to a better understanding by the parties themselves of the respective merits of each other’s positions concerning the issue in dispute, and to their own negotiation of a settlement.”39 At this stage, the parties are more aware of their claims and legal justiﬁcations. Thus, this phase can give another basis for the parties to negotiate. It would be more likely for them to make a compromise if they would not like to resort to a third party procedure. Meanwhile, this phase combined with the previous phases can help the parties to build up their conﬁdence in submitting their dispute to a third party. In reality, it is a bit too early to expect that China will use an international court or tribunal to settle all its territorial and boundary disputes. But in academia, it is never too early to theorize about it. What’s more, there is still the possibility for China to accept the International Tribunal for the Law of the Sea to settle its maritime boundary dispute in the East China Sea if the new framework is properly applied. It is also logical to predict that China with its further internationalization will change its present image as being the only permanent member of the Security Council who completely rejects the jurisdiction of the ICJ. This general pattern can only give guidance. The speciﬁc cases need their speciﬁc new frameworks for settlement. This book is divided into three closely interrelated parts. Part I (Chapter One and Two) reviews evolution and current tendencies of resolution of territorial and boundary disputes. Part II (Chapter Three and Four) concentrates on the speciﬁc features of China’s approach to international law and dispute resolution mechanisms in its theory and practice. Part III (Chapter Five, Six and Seven) contains an analysis of the three speciﬁc cases concerning China’s unresolved territorial and boundary. Chapter 1 reviews the nature of territorial and boundary disputes. In this chapter, the important concepts of territory and boundary and their relationship are examined from a historical point of view. An analysis is given to the question why there is a tendency for states to develop from frontier-marked territory to boundary-marked territory. This analysis aims to reveal some new features of territorial

39

R. B. Bilder, op. cit. (1987), p. 165.

Introduction

13

and boundary disputes. With respect of territorial and boundary disputes and their settlement frameworks, the method of classifying international disputes into political and legal ones is criticized. The related theoretical and practical problems are discussed in this chapter, theoretically and practically. Chapter 2 analyses settlement of territorial and boundary disputes in international law. The concept of “settlement” may be understood in diﬀerent ways. What is the best way of understanding the concept of “settlement”, if we speak of territorial and boundary disputes? After answering this question, an analysis focuses on legal justiﬁcations for territorial claims and the existing international dispute resolution mechanisms. The analysis in this part mainly tries to answer the following questions: What are the arguments and justiﬁcations supported by the ICJ? What are the advantages and disadvantages of negotiation, arbitration and adjudication with respect of settlement of territorial and boundary disputes? Special emphasis is put on the problematic issues of negotiations as well as on the dynamic aspects of arbitration and adjudication. This chapter also reveals some tendencies concerning the development of international dispute resolution mechanisms. Chapter 3 concentrates on the problems and opportunities in China’s approach to international law. The analysis reveals such problems as the Chinese traditional concepts of Li and Fa, the Chinese pragmatic approach to international law, the Chinese concept of State sovereignty and the Chinese attitude to the sources of international law. The opportunities lie in changes of ideology, in a rising sense of the importance of law, in accepting legal perspectives to its disputes and legal implications of the principles advocated by China. Chapter 4 exclusively analyses the problems and opportunities in China’s approach to international dispute resolution mechanisms. The problems are as follows: China’s adherence almost exclusively to the diplomatic methods – negotiations and consultations, China’s reluctance to use the ICJ and other third party mechanisms and the unique Chinese nationalism. The opportunities are found in the tendencies in China to change its negative attitude towards the ICJ. China’s options provided by the dispute settlement system of the 1982 UNCLOS and the positive implications of international courts and tribunals for China’s foreign policy. Chapter 5 deals with the settlement of the Sino-Japanese territorial and boundary disputes in the East China Sea. At ﬁrst, the history of the dispute and the conﬂicting claims are examined and a legal appraisal is presented. Then a discussion about settlement of the disputes is given on both the theoretical and practical basis. In this part, the two disputes – the territorial dispute over the Diaoyu/Senkaku Islands and the maritime boundary dispute in the East China Sea – are creatively put into a package. That is to say, the proper treatment of the territorial dispute over the Diaoyu/Senkaku Islands is closely associated with the settlement of the maritime boundary dispute and they are treated together in the proposed framework. The historical analysis of the dispute provides the grounds of understanding different claims made by the disputing parties. The study into the ICJ cases provides

14

Introduction

the criterion for the evaluation of the claims. China and Japan are interested in potential oil and gas resources in the East China Sea. Their disputes are the reﬂection of their respective interests. Because the dispute over the Diaoyu/Senkaku Islands is legally and politically so complicated, especially because of Taiwan’s involvement, it would be wise for the two parties to concentrate on the maritime boundary dispute and do whatever they can to resolve it. Negotiation, consultation, even arbitration are recommended. Solution of the maritime boundary dispute now becomes more urgent when the two parties are eager to explore and exploit the natural resources in the area. The ICJ cases, such as the 1984 Gulf of Maine Case (Canada v. U.S.)40 and the 1985 Continental Shelf Case (Libyan v. Malta),41 and States’ practice suggest that the eﬀects of the Diaoyu/Senkaku Islands in the maritime delimitation in the area shall be ignored and a proportionality line based on the lengths of the respective coastlines seems more equitable for the maritime delimitation in the East China Sea. The new framework, orientated towards the settlement of the maritime boundary dispute in the East China Sea, is constructed on the assumption that the two parties reach an agreement to ignore the eﬀect of the Diaoyu/Senkaku Islands on the maritime delimitation and try to negotiate a settlement based on the ICJ case law during the ﬁrst two diplomatic phases. If they fail to agree on settlement by negotiations in the ﬁrst two phases, the parties are encouraged to move to the third phase, judicial or quasi-judicial phase. In this phase, they are supposed to sign a special agreement on the submission of the dispute to a third party for arbitration. In addition, because the Chinese nationalism embodies some special meanings in the Sino-Japanese relationship, a proper attitude to nationalism is also an important part in the settlement framework. Chapter 6 is about the settlement of the disputes over the Spratly Islands. Although the South China Sea disputes involve the disagreements over both territory and maritime boundary, the most important aspect at this stage is the territorial one. The title to the islands has become the pivot on which the various claims revolve. Without resolving the territorial dispute, the discussion of the maritime delimitation in the South China Sea would be meaningless. This is quite diﬀerent from the disputes in the East China Sea. So the focus is placed on dealing with the territorial issues in this area. The recent case concerning Sovereignty over Pulau Litigan and Pulau Sipadan (Indonesia v. Malaysia)42 before the ICJ presents legal and political implications for the settlement of the dispute over the Spratly Islands. Therefore this case is amply used in this chapter for the analysis. The research shows that China has stronger claims to the Spratly Islands using the ICJ case law. Because the disputes in the

40 41 42

ICJ Reports 1984, p. 246. ICJ Reports 1985, p. 13. ICJ Reports 2002, p. 625.

Introduction

15

South China Sea also involve the interests of oil and gas around the disputed islands, the political will to resolve the dispute is certainly associated with these economic interests. The assumed settlement framework cannot miss this consideration. Political negotiations are an important component of the new framework. During the diplomatic phases, the parties are ﬁrstly encouraged to sign an agreement on the joint development of the disputed area regardless of the issue of sovereignty. Then they could go on to negotiate a settlement of the sovereignty dispute on the basis of the ICJ case law. If they couldn’t succeed, China and Vietnam, as two major disputants, would be encouraged to sign a special agreement accepting the jurisdiction of the ICJ. The judicial phase could be designed as the dispute over the Spratly Islands between China and Vietnam being judged by the ICJ with other parties’ intervention. The arrangement made during the ﬁrst phase about the joint development can guarantee the parties’ economic beneﬁts and their political will to submit the dispute to a third party settlement. Alternatively, the more realistic solution would be that after signing a joint development agreement the disputing parties could negotiate a settlement about sovereignty on the basis of the ICJ case law. Though the disputes in the South China Sea involve many parties, the dispute between China and Vietnam is the most serious. Therefore, a special attention in the analysis is given to this dispute. Chapter 7 analyses the settlement of the Sino-Indian border disputes. The SinoIndian border disputes are very complicated and a real Gordian knot, but the pattern indicated by the ICJ cases concerning the delimitation of land borders seems to cast light also on the Sino-Indian disputes. The most recent case – the case of the Frontier Dispute (Benin/Niger) – is used to show possible patterns for the Sino-Indian dispute. Among the three disputed border sections between China and India, the two most controversial ones lie in the Eastern and Western sectors. The dispute in these sectors involves a sensitive issue of the political status of Tibet between the 1600’s and 1900’s. Obviously, the arguments over the sector of Tibet have made the Chinese government very nervous and aﬀected negatively its political will. The analysis based on patterns indicated by the ICJ cases shows the possibility of surpassing this sensitive question in the process of ﬁnding a solution to this border dispute. China’s old framework of settlement of its border disputes is analyzed in this Chapter. What is more important, the analysis reveals the problem with the old framework in the Sino-Indian case and an recommendation is made for its modiﬁcation and improvement based on the positive experience from the successful settlement of Sino-Russian border disputes. An appraisal based on the ICJ case law is still the main theme in this chapter, because such an appraisal concerns the issue of conﬁdence-building in the process of the settlement of the Sino-Indian border dispute. During the ﬁrst phase, the two parties are encouraged to make a declaration or sign an agreement providing that they shall respect the principles and rules elaborated by the ICJ in relevant cases. In the second phase, they shall

16

Introduction

restart their negotiations on the basis of the agreed principles and rules. If political negotiations fail again, the two parties could sign a special agreement submitting the dispute to the ICJ or a special arbitration. But taking into account political factors, the more realistic option would be that China and India negotiate a settlement based on relevant ICJ case law. During the past 30 years, the great changes at both the international and domestic level have created a new context to probe the issues of the territorial and boundary disputes of China. Meanwhile, the rapid development since 1990 of the ICJ case law makes this probe more law oriented than political oriented. Nowadays, patterns of cooperation may emerge from anarchy because “the logic of collective action” convinces self-interested states that cooperation better serves their longer-term interests.43 Intensive cooperation with neighbouring states is the most prominent new feature in the Chinese new foreign policy. Economic considerations in this new cooperative engagement make China more willing than before to reach compromises with its neighbours to settle its territorial and boundary disputes on the basis of international law. Appraisal of China’s major territorial and boundary disputes from legal perspective is instrumental for conﬁdence-building and strategic adjustment between China and its neighbours. It seems more likely for them to reach compromises when they respect the principles and rules elaborated in the case law of the ICJ. It is of great signiﬁcance to design a new framework to help China and its neighbours settle their territorial or boundary disputes taking account of the legal and political factors. The research on the comprehensive dispute resolution mechanisms involving both negotiation and third party settlement is certainly a future-oriented contribution to the regional and international peace, cooperation and development.

43

R. O. Keophane. ‘International Institutions: Two Approaches’ 32 Int’l Stud. Q. (1988), p. 379.

Part I Evolution and Current Tendencies of Resolution of Territorial and Boundary Disputes

Chapter 1 The Nature of Territorial and Boundary Disputes Territorial and boundary disputes continue to be frequent and diﬃcult. In general, territorial and boundary disputes have been perceived as an unnecessary and wasteful obstacle to economic and social development, because they are a drain on budgets and resources and regularly frustrate international cooperation on trade, environmental protection, security, and law enforcement. On occasion, some of territorial and boundary disputes may lead to armed conﬂicts. The disputes concerning territorial interests increase the probability of conﬂicts and have a higher probability of leading states to war than other kinds of disputes.1 They have been responsible for the occurrence of a large number of conﬂicts and wars since World War II. The Sino-Indian border disputes and others demonstrate that the otherwise peaceful neighbouring states can embroil themselves in a deep resentment and violent hostility if the disputes cannot be solved peacefully under international law. In order to resolve the territorial and boundary disputes, we need to understand these characteristics. In other words, we need to know their nature and their peculiarities in the new international context.

1.1

Concepts of Territory and Boundary

Territory and boundary are closely inter-related and these concepts are ﬁrmly built in law, politics, economy and technology. A deﬁned territory is one of the constitutive elements of a state. It is the basis of the central notion of ‘territorial sovereignty’.2 In order to deﬁne territory, humans construct boundaries between neighbouring States. Boundaries mark the limits of the region within which a State can exercise its own sovereign rights.3

1

2

3

J. Vazques and M. T. Henehan. ‘Territorial Disputes and the Probability of War, 1816–1992’ 38 (No. 2) Journal of Peace Research 123 (2001), p. 123. P. Malanczuk. Akehurt’s Modern Introduction to International Law (Routledge, London 1997), p. 75. V. Adami. National Frontiers in Relation to International Law (Oxford University, H. Milford, London 1927), p. 3.

20

Chapter 1

In Early Jowitt’s Dictionary of English Law, a boundary is deﬁned as an imaginary line that divides two pieces of land from one another.4 The Encyclopaedia Britannica regards a boundary as any object serving to indicate a limit or conﬁne.5 International boundaries refer to all the boundaries between nation States. They are deﬁned as lines from a point to a point in a treaty, an arbitral award, a court decision or a boundary commission’s report. A boundary is diﬀerent from a frontier that is a region or a zone having width as well as length. Generally a frontier signiﬁes that part of the land that is the ‘front’ of the hinterland.6 According to Sir Thomas Holdich, an authority on boundary problems, “a frontier is but a vague and indeﬁnite term until the boundary sets a hedge between it and the frontier of a neighbouring State”.7 Boundaries are deﬁned and regulated by law, national and international, and their status and characteristics are more uniform and can be deﬁned with some precision. But so-called frontiers are just a phenomenon of history and it is diﬃcult to pinpoint essential features of frontiers that are universally valid.8 In the case of North Sea Continental Shelf, the ICJ held that there is no rule that the land frontiers of a State must be fully delimited and deﬁned.9 But historically, the growth of advancing civilization was accompanied by the process from frontier-marked territory to boundary-marked territory. In fact, compared with the frontier, the boundary is a quite recent concept in history. When the world was primitive, determination of a boundary and the formulation of a boundary policy was not an urgent need.10 In the Greek city-state times, states were separated by frontiers, some of which might be intermittently used by one or both of the societies on either side. With evolution of human society, population pressure, military considerations and technology development might come to stimulate occupancy of frontier land which the smaller population of an earlier time had not needed to exploit. The sovereign states were created in modern times with their concentration on territorial sovereignty. The year 1648 is generally referred to as the critical date of the establishment of the modern state system by the Peace of Westphalia.11 Consequently, it became imperative for sovereign States to know the limits of their respective

4 5 6

7 8

9 10

11

E. Jowitt. The Dictionary of English Law (Sweet and Maxwell, London 1959), p. 279. Encyclopaedia Britannica (1959), Dictionary I. S. P. Sharma. International Boundary disputes and International Law: A Policy Oriented Study (N. M. Tripathi, Bombay 1976), p. 3. T. Holdich. ‘Political Boundaries’ 32 Scottish Geographical Magazine, p. 501. L. K. D. Kristof. ‘The Nature of Frontier and Boundaries’ 49 Annals, Association of American Geographers 273 (1959), p. 273. ICJ Reports 1969, p. 33, para. 46. P. K. Menon. ‘Settlement of International Boundary Disputes’ 8 Anglo-Am. L. Rev. (1924), pp. 26–7. A. O. Cukwurah, op. cit. (1967), p. 15.

The Nature of Territorial and Boundary Disputes

21

jurisdictions. However, exact boundaries could not be determined until the sciences of geography and cartography had developed to the level at which they could supply the data needed for delimitation and demarcation.12 The establishment of a boundary has been structured as involving three steps: allocation, delimitation and demarcation. They all need the support by law, politics and technology.13 Allocation is the designation of a piece of land by a geographical reference mutually recognized by the parties. Delimitation refers to the description of the boundary intended as the result of the allocation. Delimitation will indicate precise compass directions and distances, longitudinal and latitudinal lines and coordinates, the position of the line where it runs through a body of water or a range of mountains, and the like. Demarcation is ﬁeldwork conducted jointly by persons representing the states on both sides of the boundary. But many boundaries have never been demarcated in the ﬁeld in any way, particularly those running through wildernesses. Whether the labour of demarcation is undertaken depends on various practical factors of need, notably the intensity of human activity at the boundary and the sensitivity of the two states as to its location. Decades may elapse between a purported delimitation and actual demarcation. Territory and boundary are innately related to politics because they concern division between two governmental and administrative systems and they are often formulated by politicians. In many cases, the formulation of a boundary policy is necessarily a compromise between various conﬂicting demands – demands such as defence purpose, communication facility, economic cooperation, political isolation, ethnic and geographic realities. The size and richness of the resource potential of the region are indicators of strength; hence, delimitation of boundaries can become a matter of expression of power and nationalism. The traditional classiﬁcation of the boundaries is that of natural and artiﬁcial boundaries.14 Lines which are marked by nature, such as mountain crests, rivers, and shore lines of lakes and seas, have long been utilized in establishing “natural” or “geographical” boundaries.15 Boundaries which are not marked by nature and which must therefore be marked on the ground by means of stones or monuments placed by man have likewise been known as “artiﬁcial” or “conventional” boundaries.16 On the basis of a comprehensive classiﬁcation, international boundaries can be divided into physical, geometric, anthropogeographic and compound types

12 13 14

15

16

N. Hill, op. cit. (1976), p. 23. P. K. Menon, op. cit. (1924), p. 28. R. Jennings and A. Watts. Oppenheim’s International Law Vol. I (9 edn. Longman, Harlow 1992), pp. 661–2. S. W. Boggs. International Boundaries – A Study of Boundary Functions and Problems (Columbia University Press, New York 1940), p. 23. Ibid.

22

Chapter 1

of boundaries.17 Physical types of boundaries comprises all “natural” boundaries such as mountains and hills, deserts, lakes, bays and straits, rivers, swamps and marshes, and boundaries through territorial waters to the high sea. Geometrical boundaries cover such international boundaries as are deﬁned in terms of straight lines, meridians of longitude, parallels of latitude, arcs of a circle or lines parallel to or equidistant from a coast or a river. Anthropogeographic boundaries are so classiﬁed because of their closer and stronger connection with human features, such as tribe, language, religion, economy, history and culture, etc. Compound boundaries deal with cases, which are not readily identiﬁable with any of the preceding three groups.18 Territory can mean a deﬁned area over which a State enjoys its sovereignty exclusively. In international law, territory is closely associated with concept of sovereignty. The concept of sovereignty is a natural and universal one describing the condition of not being subject legally to any superior. In the Island of Palmas Arbitration case, Judge Huber observed: Territorial sovereignty. . . involves the exclusive right to display the activities of a state. This right has as a corollary a duty; the obligation to protect within the territory the rights of other States, in particular their right to integrity and inviolability in peace and war, together with the rights which each States may claim for its nationals in foreign territory.19

International boundaries can also be understood as indicating the distance that the arm of the law or the jurisdiction of each State can reach from the central seat of administration.20 The well-deﬁned territories that are clearly marked by boundaries are constructive factors to peace and cooperation among the states. Research has shown that war is more frequent in cases where states formally dispute the placement of their shared boundary than in instances where the boundary is clearly delimited and legally valid.21 Certainty and stability of international frontiers is essential for economic development and exploitation of natural resources.22 The determination of boundaries is an inevitable necessity arisen out of the growth of advancing civilization.23 Therefore, territory and boundary can be understood as rights which the States involved are eager to exercise for the purpose of the attainable proﬁts they anticipate. Now territorial and boundary disputes are more often related to 17 18 19 20 21 22

23

A. O. Cukwurah, op. cit. (1967), p. 18. Ibid., pp. 18–26. Report of International Arbitral Awards, Vol. XI, p. 839. A. O. Cukwurah, op. cit. (1967), p. 9. S. A. Kocs, op. cit. (1995), pp. 159–175. C. Gray and B. Kingsbury. ‘Developments in Dispute Settlement: Inter-state Arbitration Since 1945’ 63 BYBIL (1992), p. 108. P. K. Menon, op. cit. (1924), p. 24.

The Nature of Territorial and Boundary Disputes

23

the possession of natural resources such as rivers, fertile farmland, mineral or oil resources, although the disputes can also be driven by culture, religion and ethnic nationalism.

1.2

Concepts of Territorial and Boundary Disputes

Territorial and boundary disputes are a sub-category of international disputes. Although there are some speciﬁc features unique to territorial and boundary disputes, they share a lot of similarities and governed by the same general legal principles. As such, it is worthwhile ﬁrst to examine international disputes in a general. 1.2.1

International Disputes

Generally, there are two ways to understand international disputes: narrow and broad. The narrow concept was reﬂected in the Mavrommatis case, where the Permanent Court of International Justice deﬁned a dispute as “a disagreement on a point of law or fact, a conﬂict of legal views or interests between two persons”.24 This concept tries to describe dispute as a pure legal issue. J. G. Merrills gives his broad concept of dispute in such a way: “A dispute may be deﬁned as a speciﬁc disagreement concerning a matter of fact, law or policy in which a claim or assertion of one party is met with refusal, counter-claim or denial by another.”25 This concept does not exclude the disagreement with political ingredients. Comparatively, the broad concept is closer to the reality of international disputes because the majority of them have political elements. No matter what approach is applied, all the international disputes have the two shared features: (1) The disagreement must be speciﬁc enough to have a well-deﬁned subject-matter to argue for. That is diﬀerent from a general political declaration. In Hostages case,26 the reason for the Court’s rejection of the Iranian argument was surely that the allegations had not been reduced to a series of speciﬁc issues so that a court could deal with them.27

24

25 26 27

Mavrommatis Palestine Concessions (Greece v. U.K.), PCIJ 1924, ser. A, No. 2, p. 11 (Judgment of Aug. 13). J. G. Merrils, op. cit. (1998), p. 1. United States Diplomatic and Consular Staﬀ in Tehran case, ICJ Reports. 1980, p. 3. S. R. Jennings. ‘Reﬂections on the Term “Dispute’’’ in R. S. J. Macdonald (ed.) Essays in Honour of Wang Tieya (M. Nijhoﬀ, Dordrecht/Boston 1994), p. 404.

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Chapter 1

(2) The disagreement must be reﬂected in some certain forms, such as statements, diplomatic notes, or speciﬁc actions. The disputing parties should explicitly express their conﬂicting claims in words and actions. It should be noted that disputes are diﬀerent from conﬂicts. The term “dispute” signiﬁes a speciﬁc disagreement relating to a question of rights or interests in which the parties proceed by way of claims, counter-claims, denials and so on, whereas the term “conﬂict” is used to signify a general state of hostility between the parties. Conﬂicts are often unfocused, and particular disputes arising from them are often perceived to be as much the result as the cause of the conﬂict.28 A dispute if unresolved may give rise to a conﬂict; the methods of peaceful resolution are designed to ensure that this does not happen.29 Two States may have feelings of antagonism towards each other, but they may not have any speciﬁc disagreement that can be considered a dispute. Even if there is a disagreement, until the disagreement is formulated into a speciﬁc claim or assertion that is resisted by the other, there is no “dispute” between them. There is a process for a potential dispute to escalate to an actual dispute that is appropriate for a settlement. International disputes should be viewed as disagreements between or among States which international dispute settlement techniques, such as adjudication and arbitration, may be useful in resolution. Territorial and boundary disputes should be understood in a broad sense because they often have the political elements. They involve not only law and fact but also policy. 1.2.2

Classiﬁcation of International Disputes

Professor Richard B. Bilder gives six criteria for classiﬁcation of international disputes: (1) subject matter of the dispute; (2) character of the dispute; (3) the nature of the relations between or among the parties; (4) importance of the dispute to the parties; (5) eﬀect of the disputes on other nations of the international community; (6) presumed appropriateness of judicial settlement.30 Obviously, diﬀerent criteria oﬀer diﬀerent angles to view disputes. A speciﬁc dispute can be characterized diﬀerently if one approaches it from a diﬀerent angle. Nonetheless, the sixth criterion may become very problematic in States’ practice. When this classiﬁcation method links up with the optional methods for disputes settlement, it is generally understood that legal disputes should be settled by legal

28

29 30

J. Collier and V. Lowe. The Settlement of Disputes in International Law (Oxford University Press, New York 1999), p. 1. J. O’Brein. International Law (Cavendish Publishing Limited, London 2001), p. 633. R. B. Bilder. ‘An Overview of International Dispute Settlement’ 1 Journal of International Dispute Resolution (1986), pp. 13–17.

The Nature of Territorial and Boundary Disputes

25

methods, whereas political disputes can only be settled by a procedure which takes account of political considerations. The legal methods refer to applying the law through arbitration or adjudication. The political methods include negotiation, consultation, good oﬃces, mediation, inquiry and conciliation. This is the so-called “political question doctrine”. This doctrine is quite popular in China. All the Chinese textbooks concerning international law try to advocate it as an international rule. The hardcore of the doctrine is that the so-called “political disputes” should be excluded from arbitration and adjudication. In reality, the majority of international disputes contain both legal and political elements. It is easy to attach a political label to a dispute. When and where a dispute is labeled so, it becomes very unpredictable. Therefore, the method to resolve a dispute is also unpredictable. As a rule, an indispensable prerequisite for social existence is social order and social order means regularity and predictability in the behavior of the society’s members.31 The unpredictability caused by this classiﬁcation deviates from the course of an increasingly orderly international society. In some sense, the adoption of this classiﬁcation is to increase the parties’ control of the procedure in dispute resolution at the cost of social order. This classiﬁcation may make a dispute more complicated. One party may declare a dispute that has some political element as one not appropriate for judicial settlement just because it is a “political dispute”. The other party may regard the same dispute as a legal dispute suitable for judicial settlement by ignoring the political element. Therefore, the classiﬁcation itself may become a dispute. In addition, states easily put all the disputes that are often referred to as the issues related to national vital interests, such as territorial and boundary disputes, into the big basket of political disputes to avoid judicial settlement.32 This technical evasion, in fact, can give the powerful disputants the advantage of using their power or expecting to use their power to settle their disputes. Too much conﬁdence in power more likely leads to war. Therefore, a kind of threat to international peace haunts this classiﬁcation. Actually, in international law there is no such thing as a political question doctrine. In 1984, the United States urged that decision by the ICJ in a case brought against it by Nicaragua would be contrary to a “political question” doctrine. The ICJ ruled that there was no such doctrine in international law.33 The Court in no way accepted such a restriction upon its role in the peaceful settlement of international

31

32

33

W. Levi. Law and Politics in the International Society (Sage Publication LTD, London 1976), p. 9. For example, India’s reservations about the jurisdiction of the ICJ cover the disputes relating to the status of its territory, boundaries and continental shelf. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. U.S.), ICJ Reports 1984, p. 439, para. 105.

26

Chapter 1

disputes.34 Judge Rosalyn Higgins also said: “Policy considerations, although they diﬀer from ‘rules’, are an integral part of that decision-making process which we call international law; the assessment of so-called extralegal considerations is part of the legal process, just as is reference to the accumulations of past decisions and current norms”.35 It is obviously too simple to say that international courts and tribunals deal only with ‘purely’ legal disputes. In the United Nations’ practice, the ICJ is well aware that legal issues have their policy overtones.36 The ICJ noted that even so-called legal disputes between sovereign States by their very nature are likely to occur in a political context and often form only one element in a wider and longstanding political dispute between the States concerned, and ﬁrmly rejected the view that ‘because a legal dispute submitted to the Court is only one aspect of a political dispute, the Court should decline to resolve for the parties the legal question at issue between them.’37 The international lawyer cannot detach herself from political factors and even ‘purely’ legal categories do not work automatically.38 Since 1947, many cases brought before the ICJ have had serious political implications both for the internal life of the litigating States and international life.39 The Attorney-General of the United Kingdom, Sir Hartley Shawcross, in opening his pleading in the Corfu Channel case, remarked that the dispute was one that could constitute a grave threat to international peace.40 He implied that bringing the case to the Court had the political purpose – avoiding a war. Since the 1980s the ICJ has been used for clearly political purposes. Some of those disputes that might lead to a threat to, or even a breach of, international peace have been successfully brought to the Court.41 A dispute can be said to be justiciable if a speciﬁc disagreement exists and that disagreement is of a kind that can be resolved by the application of rules of law

34 35

36

37

38 39

40

41

Ibid. R. Higgins. ‘Integration of Authority and Control’ in W. M. Reisman and B. Weston (eds.) Toward World Order and Human Dignity (Yale University Press, 1976), p. 85. R. Higgins. ‘Peaceful Settlement of International Disputes’ 89 American Society of International Law Proceedings (1995), p. 296. Military and Paramilitary Activitiies in and against Nicaragua (Nicaragua v. U.S.), ICJ Reports 1980, p. 20, para. 37. The United States Diplomatic and Consular Staﬀ in Tehran case, ICJ Reports 1984, p. 439, para. 105; Nicaragua v. Honduras, ICJ Reports 1988, p. 91, para. 52. R. Müllerson, op. cit. (2000), p. 24. S. Rosenne. The Law and Practice of the International Court, 1920–1996 (Martinus Nijhoﬀ Publishers, The Hague 1997), p. 3. Corfu Channel case, Pleadings, Oral Arguments, Documents, vol. III, 1950, p. 200. at [22 Jan. 2008]. S. Rosenne. The Law and Practice of the International Court, 1920–1996 (Martinus Nijhoﬀ Publishers, The Hague 1997), p. 3.

The Nature of Territorial and Boundary Disputes

27

through judicial (including arbitral) processes.42 It is true that not all disputes are suitable for judicial settlement, but we cannot say that all the disputes brought before courts and arbitral tribunals are purely legal disputes. 1.2.3

Territorial and Boundary Disputes

Territorial and boundary disputes are diﬀerent but related. Their distinction is reﬂected in the diﬀerent claims made, for example, by Libya and Chad in the Case Concerning the Territorial Dispute (Libyan Arab Jamahiriya v. Chad). While Libya considered the dispute as a dispute regarding the attribution of territory, Chad viewed it as a dispute over the location of a boundary.43 A territorial dispute is actually a disagreement over the possession or control of land between two or more states, or over the possession or control of land by one state after it has conquered it from a former state no longer currently recognized by the occupying power. Territorial disputes involve modes of acquiring title such as discovery, occupation, conquest, cession and prescription.44 In many cases, territorial disputes result from vague and unclear language in a treaty that set up the original boundary. A border dispute is deﬁned as a violent or nonviolent disagreement between two primary national antagonists over the demarcation of their shared boundary.45 Boundary disputes largely raise issues concerned with boundary-making, such as administration, delimitation, demarcation and enforcement. They are related because both boundary and territorial questions are part of the larger question of territorial sovereignty and they involve comparable sets of claims and counter-claims and legal policies.46 As far as settlement of disputes over territorial sovereignty is concerned, the distinction between territorial disputes and boundary disputes is not important. For example, while applying the juridical techniques of acquiescence, recognition and estoppel for settlement, the distinction between territorial and boundary disputes leads to no practical consequences.47 Acquiescence, recognition and estoppel are juridical concepts to which international tribunals have resorted in order to reach decisions in situations where the evidence based on treaties and custom is found inadequate or the application of uti possidetis is seen to be inconclusive.

42 43 44

45

46 47

J. Collier and V. Lowe, op. cit. (1999), p. 10. Territorial Dispute (Libyan Arab Jamahiriya v. Chad), ICJ Reports 1994, pp. 14–5, para. 19. S. R. Jennings. The Acquisition of Territory in International Law (Manchester University Press, Manchester 1962). R. Mandel. ‘Roots of the Modern Interstate Border Dispute’ 24 (3) Journal of Conﬂict Resolution (Sep. 1980), p. 431. S. P. Sharma, op. cit. (1997), p. 23. N. S. M. Antunes. ‘Estoppel, Acquiescence and Recognition in Territorial and Boundary Dispute Settlement’ 2 (2) Boundary & Territory Brieﬁng (2000), p. 6.

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Chapter 1

Acquiescence, recognition and estoppel are applied to resolution of both territorial and boundary disputes. Anyway, they are not methods of acquiring title to territory. In fact, none of them is an actual process whereby territorial sovereignty is attained and title to territory thereby acquired.48 As juridical concepts, they operate in both territorial and boundary disputes in exactly the same way and with the same limitations.49 Therefore, in practice, the distinction between territorial and boundary disputes is irrelevant to the application of acquiescence, recognition and estoppel during the settlement process.50 Acquiescence can mean a kind of tacit agreement in circumstances that would call for a response expressing disagreement or objection in relation to the conduct of another state. Acquiescence can be characterized as a type of qualiﬁed inaction.51 In such situations, the reaction is crucial and the state inaction can be interpreted as an explicit or implicit consent to another state’s conduct though, in the juridical sense, the absence of opposition per se does not necessarily or always imply consent.52 The diplomatic protest is the typical practice for a government to avoid the unfavourable eﬀect that may be incurred by acquiescence. Diﬀerent from acquiescence, which may arise from a mere failure to protest against a situation where a right to protest existed and its exercise was called for, recognition is the adoption of a positive acknowledgement on the part of a state.53 Recognition can mean an act by which a state asserts the existence of certain juridical acts or facts. The application of recognition in international law can be found in a great number of situations. It may appear in the forms of governmental declarations, a vote in an international organization, eﬀective acts on the ground, statements implied in treaties, joint communiqués and oﬃcial archive material. Although it is a unilateral act, it is always related to the act of another state. Recognition is a very important juridical concept concerning territorial or boundary disputes in international law. Estoppel is a juridical concept according to which a party is prevented from arguing and rebutting a previously made statement of fact or representation on one same issue.54 In such case, the party is restricted from subsequently altering its position or denying the truth of a prior statement. It is always diﬃcult for a litigant to go back upon his precious statements or acts. In the leading case on

48

49 50 51

52 53 54

S. T. Bernardez. ‘Territory, Acquisition’ in R. Bernhardt (ed.) Encyclopedia of Public International Law (North-Holland Publishing Co., Amsterdam 1986), p. 496. N. S. M. Antunes, op. cit. (2000). Ibid. J. P. Müller and T. Cottier. ‘Acquiescence’ in R. Bernhardt (ed.) Encyclopedia of Public International Law (North-Holland Publishing Co., Amsterdam 1986), pp. 116–119. S. R. Jennings, op. cit. (1962), p. 36. Ibid. N. S. M. Antunes, op. cit. (2000), p. 4.

The Nature of Territorial and Boundary Disputes

29

estoppel, the Temple of Preah Vihear case,55 the ICJ considered that Thailand was estopped from objecting to Cambodian title because it was estopped by past acts of acquiescence.56 Acquiescence and recognition are the expressions of consent while estoppel is not in itself a manifestation of consent. Some scholars would like to exclude the maritime boundary disputes from their study while they are focusing on the territorial issues since they believe that the maritime boundaries are governed by the Law of the Sea, therefore belonging to another ﬁeld.57 But if the focus is placed on a framework for the settlement of disputes, the two kinds of disputes (land and maritime) may be closely related. For instance, without a proper treatment of the status of the Diaoyu/Senkaku Islands, which are located in the East China Sea, it would be impossible for China and Japan to draw a maritime delimitation line in the East China Sea. Therefore, it would be necessary to discuss the two kinds of disputes together in the relevant settlement framework. Actually, there are important links between territorial disputes and boundary disputes. A decision that a particular piece of territory belongs to a certain State may generate further disputes about boundaries. As the ICJ held in the North Sea Continental Shelf case, “The appurtenance of a given area, considered as an entity, in no way governs the precise delimitations of its boundaries, any more than uncertainty as to boundaries can aﬀect territorial rights.”58 Evidence relating to boundaries may be highly relevant in disputes about territorial title.59 In such situations, neither boundary has been marked nor has a boundary ever been delimited by treaty or otherwise. These disputes will be about title, rather than boundaries and such situations are therefore more properly regarded as territorial, rather than boundary, disputes. Today these situations exist in some of the desert regions of North Africa and the Middle East, and in Antarctica. Sometimes, although boundary has been established, its legitimacy is challenged, and therefore disputes arise. These disputes are particularly dangerous and historically have often contributed to wars. The vanquished rejects a boundary imposed by the victor because he regards that boundary as a result of war. To avoid the problem of boundaries without legitimacy, the Latin American States endorsed the principle of uti possidetis in the Nineteenth century and this approach was also followed by the Organization of African Unity with similar motives in 1964.60 Even if a formula for delimitation has been agreed, the diﬀerent views about its meaning on the ground may cause disputes, too. In the Land, Island and Maritime 55 56 57 58 59 60

Temple of Preah Vihear case, ICJ Reports 1962, p. 6. Ibid. For example, Byron N. Tzou. See B. N. Tzou, op. cit. (1990). ICJ Reports 1969, p. 32, para. 46. R. Jennings and A. Watts, op. cit. (1992), pp. 668–9, para. 233. S. Touval. ‘The Organization of African Unity and African Borders’ 21 (1) International Organisation (1967), p. 102.

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Frontier case, El Salvador and Honduras argued before the International Court of Justice about the establishment of the uti possidetis line of 1821.61 In the Beagle Channel case, Argentina and Chile’s argument involved the interpretation of an ambiguous frontier treaty.62 The disputes concerning territorial interests have a very complex structure. They usually have their roots in realpolitik. From historical review, the common catalysts of territory transfer between sovereign states were cession, occupation, prescription, conquest and annexation that were all closely associated with war or threat of war. Political, diplomatic and military elements can be easily found in contentious arguments. Both legal and political arguments are often used side by side.63 The disputes based solely on legal arguments are comparatively rare. In most situations, for disputing States, non-legal arguments are of a greater prominence.64 The disputing states always base their claims on “rights” which they assert to be well-founded and would justify the resort to force if necessary. If they have no obligation to submit the dispute to international tribunal, their arguments are rather addressed to their own supporters. They usually try to establish their behaviour righteous and “lawful” by expressing explicitly or implicitly the “unlawful” behaviour of their opponents. Responding to the unilateral declaration, the defendant state will put forward their counterclaims. All such self-serving assertions may fail to be legally grounded before tribunals. Generally, States are more willing to indulge in legal and judicial processes for the matters that they deem of minor consequence than the matters that are vital and important. Territorial and boundary issues are usually declared as the vital matters so that they are suitable for political management. In some sense, this attitude has created obstacles for judicial settlement of territorial and boundary disputes. It has been proven that unsettled territorial and boundary disputes pose as threats to international peace and security. An empirical study of international relations between 1945 and 1974 found 66 disputes having a clear boundary component, of which 24 involved some military action.65 It has proved that territorial disputes that ﬂare up into armed conﬂict tend to be of considerable duration and boundary disputes are extremely potential for disturbing international peace. 66 Lord Curzon once called boundaries “the razor's edge on which hang suspended the modem issues of war and peace, of life or death to nations.”67 61 62 63

64 65

66 67

ICJ Reports, 1992, p. 35. 52 ILR, p. 93. P. Malanczuk. Akehurt’s Modern Introduction to International Law (Routledge, London 1997), p. 157. J. R. V. Prescott. Political Frontiers and Boundaries (Allen & Unwin, London 1987), p. 107. F. V. Kratochwil. Peace and Disputed sovereignty: Reﬂections on Conﬂict over Territory (University Press of America, Lanham 1985), p. 26. Ibid., p. 27. Ibid., p. 3.

The Nature of Territorial and Boundary Disputes

31

In 2000, the war between Eritrea and Ethiopia originated from the dispute over slices of land along the thousand-kilometre-long border.68 More frequently, territorial conﬂicts remain in a state of animosity that may escalate into a full-scale military conﬂict at any time. The Sino-Indian border disputes, the Sino-Japanese disputes in the East China Sea and the disputes between China, Vietnam, Malaysia, the Philippines, Brunei and Indonesia in the South China Sea all possess this nature. All territorial and boundary disputes have both political and legal features. Suppose territorial and boundary disputes were regarded as so-called “political” disputes. In such a case the disputes would involve conﬂicting justiﬁcations through unilateral assertion of principles, such as state interests, convenience and necessity, strategic interest, ethnic uniﬁcation, natural frontiers, historic possession, contiguity and others, on which the contestants disagree with each other. It would be diﬃcult for disputing parties to negotiate an agreement when their positions are so far apart. The Sino-Indian border war was just the result from the two parties’ uncompromised positions on their respective political points of view.69 Under the obligation of peaceful settlement of international disputes imposed by the United Nations Charter,70 States have obligation to resort to peaceful methods, diplomatic or judicial, to settle the territorial or boundary disputes which endanger international peace and security. No matter which method is applied, it seems more likely for the disputing parties to hammer out a compromised settlement of their disputes if they resort to legal arguments. In 2000, China and Vietnam could successfully settle their maritime disputes in the Gulf of Tonkin just because they ﬁrstly agreed that they would take legal perspective of their disputes. In 1993, the two sides reached a general agreement on the basic principles to be applied to settling the disputes relating to the land border and the delimitation of the Gulf of Tonkin. The basic principles were those of “applying the International Law of the Sea and referring international practices to carry out negotiations on the delimitation of the Tonkin Gulf ” and “in line with the principle of equality, taking into consideration all circumstances concerned in the Gulf to reach an equal solution.”71 In order to strengthen the peaceful settlement system, it is necessary to emphasize the important role that legal perspective plays in settlement of territorial and boundary disputes. Legal perspective denounces the practice of blindly putting territorial and boundary disputes into the big political category, because that practice purports to turn away the possibility of legal appraisal and judicial settlement of territorial and

68

69 70 71

P. Gilkes and M. Plaut. ‘The War between Ethiopia and Eritrea’ 5 (25) Foreign Policy in Focus (2000), at [26 Jan. 2008]. N. Maxwell, op. cit. (1970), pp. 47– 80. UN Charter, Art. 2(3), Art. 33(1). K. Zou. ‘The Sino-Vietnamese Agreement on Maritime Boundary Delimitation in the Gulf of Tonkin’ 36 Ocean Dev. & Int’l L. (2005), p. 13.

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boundary disputes. If the disputing parties want to settle their disputes and intend to take legal perspectives of their disputes, they should accept that territorial and boundary disputes are justiciable. Although sometimes the disputing parties needn’t use international courts or tribunals, the case law elaborated by international courts and tribunals is the important basis from which the parties argue and negotiate with each other. In general, territorial and boundary disputes have signiﬁcant political, economic and other components and disputes based solely on legal arguments are comparatively rare,72 but international courts and tribunals are not prevented from ruling the territorial and boundary disputes. International courts and tribunals usually resort to both legal and non-legal types of arguments when rendering territorial and boundary decisions.73 Some of the non-legal considerations may acquire a decisive juridical relevance through the operation of the legal concepts of acquiescence, recognition and estoppel.74 As far as territory is concerned, the status quo is likely to be regarded as a prima facie justiﬁcation, which fosters the sense that the existing possession is just until the other Party can show why it is not. To begin with, the disputing parties are more likely to justify their claims by the general principles concerning territorial sovereignty and boundary delimitation when they claim their rights. Yet somehow, these general principles are subject to explanation concerning speciﬁc circumstances. Thus, the elaboration of the principles and rules by international courts and tribunals in relevant cases become very important and helpful, sometimes even necessary. The concept that territorial and boundary disputes are justiciable can help the disputing parties to settle their territorial and boundary disputes based on the principles and rules used by international courts and tribunals.

1.3

Some Features of New Territorial and Boundary Disputes

Emotional signiﬁcance, strategic military value and resource value are all the potential factors contributive to the rise of territorial and boundary disputes. Nonetheless, the study of the cases concerning territorial and boundary disputes brought to the ICJ from 1987 to 2002 has shown that most new territorial and boundary disputes are related to the discovery of natural resources in the disputed areas. It seems that economic factors operate as catalysts for territorial and boundary disputes (See the following Chart).

72 73 74

J. R. V. Prescott, op. cit. (1987), p. 107. S. P. Sharma, op. cit. (1997), pp. 26–91. A. L. W. Munkman, ‘Adjudication and Adjustment-International Judicial Decision and the Settlement of Territorial and Boundary Disputes’ 46 BYBIL (1972–1973), pp. 26–91.

The Nature of Territorial and Boundary Disputes

33

CASES CONCERNING TERRITORIAL AND BOUNDARY DISPUTES BROUGHT TO THE ICJ FROM 1987 TO 2002 Case

Nature of Case & Relative Importance

Extensive Prior Negotiation?

Yes (one armed clash)

Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal) (1989–1991)

Mostly economic; high

Yes (?)

Yes (one armed clash)

Maritime Delimitation, Greenland & Jan Mayen (Denmark v. Norway) (1988–1993)

Economic; medium

Yes (8 years)

No

Land, Island and Maritime Frontier (El Salvador/ Honduras: Nicaragua intervening) (1986–1992)

Mostly political, Yes some economic; high

Territorial Dispute (Libyan Arab Strategic, some Jamahiriya/Chad) political; (1990–1994) high Kasikili/Sedudu Island (Botswana/Namibia) (1996–1999)

Yes

Domestic No (?) political and strategic; low

Yes (full-scale war)

Yes (full-scale war) No (armed presence only)

Maritime Delimitation, Qatar Economic, & Bahrain (Qatar v. Bahrain) some (1991–2001) strategic; high

Yes (15 years)

No

Land & Maritime Boundary, Cameroon & Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening) (1994–2002)

Economic; low to medium (land) Strategic; high (maritime)

Yes

Yes (various armed clashes)

Sovereignty, Pulau Ligitan/ Pulau Sipadan (Indonesia/ Malaysia) (1998–2002)

Economic; medium

Some

No

Source: Colter Paulson, Compliance with Final Judgments of The International Court of Justice since 1987, 98 Am. J. Int’l L. 2004, pp. 459–60. The sources for this table include the relevant ICJ cases and the following publications: U.S. DEP’T OF STATE, BUREAU OF VERIFICATION AND COMPLIANCE, WORLD MILITARY EXPENDITURES AND ARMS TRANSFERS 1999– 2000 (28th ed. 2002) (the latest military ﬁgures are for 1999); UCLA COMMITTEE ON LATIN AMERICAN STUDIES, STATISTICAL ABSTRACT OF LATIN AMERICA (2002).

34

Chapter 1

Nowadays economic development is placed on the top agenda of both developed and developing countries. It is self-evident that a prosperous and sustainable economy depends on suﬃcient energy supply. All the countries are interested in new resources. Limited, unevenly distributed resources have caused large developing countries like China to worry about their energy supplies. Oil and gas, as two major kinds of fuel, are called the “lifeblood of modern industry”. Nevertheless, it is estimated that approximately 20 per cent of the world’s proven oil reserves are oﬀshore,75 and 15 percent of maritime boundaries cut across or are closely adjacent to oil and gas deposits, and approximately 20 percent of the world’s land boundaries cut across or are closely adjacent to oil and gas deposits.76 With the development of new technology and the involvement of international investment, many States are promoting the sources of oil and gas in the oﬀshore areas for exploration and exploitation. As a result, the sources located in boundary areas, especially the areas that have not yet been demarcated easily stimulate disputes. In the case of straddling deposits an existing, even agreed, boundary could not be immune to disputes and conﬂicts, because any exploitation may aﬀect all the neighbours’ equal rights to the single reservoir. In many disputed areas, territorial and boundary disputes have become negative factors to the large-scale commercial development of the natural resources. Before goodwill settlement of the existing disputes, uninterrupted production cannot be guaranteed because the transit of the oil and gas from the disputed area to the market may become very risky, no matter what methods are involved – tanker, pipeline, road or rail way. In fact, energy in transit is notoriously easy to cut oﬀ, as several abandoned oil pipelines in the Middle East testiﬁed.77 International land and maritime boundaries deﬁne the ownership of state resources and will invariably inﬂuence patterns of exploitation and transportation. Oil exploration is a sophisticated and costly business and few companies are willing to risk adventures in the disputed areas. Where no boundary has been formally agreed – which is still common at sea – investors are extremely reluctant to risk their money. For example, the oil exploration was interrupted when Saudi Arabia and Yemen did not settle their border dispute.78 Similarly, the

75

76

77 78

P. R. Odell. ‘World Oil Resources, Reserves and Production’ 15 The Energy Journal (1994), pp. 89–114. G. H. Blake and R. E. Swarbrick. ‘Hydrocarbons and International Boundaries: A Global Overview’ in G. H. Blake, M. Pratt, C. Schoﬁeld and J. A. Brown (eds.) Boundaries and Energy: Problems and Prospects (Kluwer Law International Ltd, London 1998), pp. 3–27. C. B. Hatﬁeld. ‘ Oil Back on the Global Agenda’ 387 Nature (8 May 1997), p. 121. R. Schoﬁeld ‘Negotiating the Saudi-Yemeni International Boundary’ (1999), at [30 Jan. 2008].

The Nature of Territorial and Boundary Disputes

35

Cameroon-Nigeria conﬂict in the Bakassi Peninsula has impeded oil exploration in the region.79 Therefore, it is a common phenomenon that exploration and exploitation may be delayed in and around the disputed territory, though the states concerned are eager to exploit the resources there. China has involved in many territorial and boundary disputes with its neighbours. The disputes in the East China Sea and the South China Sea, in fact, have prevented the large-scale commercial activities in and around the disputed parts. Seemingly, the desire to exploit oﬀshore hydrocarbon resources may stimulate the states concerned to demarcate their oﬀshore boundary. Oil companies are already showing considerable interest in ‘frontier’ basins that have hitherto remained unexplored, and are increasingly investigating deep-water basins oﬀshore. Peter Odell suggests that the rapidly expanding economies on the western Paciﬁc Rim will create very large demands that might provide a powerful incentive to solve boundary demarcation problems in the region.80 As far as maritime boundary disputes are concerned, the incessant variety of geographical situations makes each maritime boundary dispute quite unique. When the doctrine of the continental shelf was introduced by Truman on 28th September 1945, the argument was raised that geographical features are so varied that it would be diﬃcult to conceive ﬁxed rules governing the establishment of maritime boundaries between states.81 In the Tunisia/Libya case, the Court declared: Clearly each continental shelf case in dispute should be considered and judged on its own merits, having regard to its peculiar circumstances; therefore, no attempt should be made here to over-conceptualize the application of the principles and rules relating to the continental shelf.82

The Chamber in the Gulf of Maine case reiterated this point: Although the practice is still rather sparse, owing to the relative newness of the question, it too is there to demonstrate that each speciﬁc case is, in the ﬁnal analysis, diﬀerent from all the others, that it is monotypic and that, more often than not, the most appropriate criteria, and the method or combination of methods most likely to yield a result consonant with what the law indicates, can only be determined in relation to

79

80 81

82

A. I. Asiwaju. ‘The Bakassi Peninsula Crisis: An Alternative to War and Litigation’ in G. Blake (ed.), op. cit. (1998), pp. 251–269. P. R. Odell. ‘Hydrocarbons: The Pace Quickens’ in G. Blake (ed.), op. cit. (1998), pp. 39–41. Grisel. ‘The Lateral Boundaries of the Continental Shelf and Judgment of the International Court of Justice in the North Sea Continental Shelf Cases’ 64 AJIL (1970), pp. 562, 590. ICJ Reports 1982, p. 92, para. 132.

36

Chapter 1 each particular case and its speciﬁc characteristics. This precludes the possibility of those conditions arising which are necessary for the formation of principles and rules of customary law giving speciﬁc provisions for subjects like those just mentioned.83

The tribunal in the Guinea/Guinea-Bissau arbitration emphasized that the factors and methods referred to result from legal rules, although they evolve from physical, mathematical, historical, political, economic or other facts. However, they are not restricted in number and none of them is obligatory for the Tribunal, since each case of delimitation is a unique.

83

ICJ Reports 1984. p. 290, para. 81.

Chapter 2 Settlement of Territorial and Boundary Disputes One of the most basic goals of the international community is to achieve peace and security. Accordingly States must establish patterns of behaviour for the mutual accommodation of conﬂicting interests. The existing dispute resolution mechanisms are just for this purpose.

2.1

Concept of Settlement of Territorial and Boundary Disputes

When we try to understand the concept of settlement of territorial and boundary disputes, ﬁrstly, we need clarify the concept of “settlement”. In the case of the Temple of Preah Vihear (Cambodia v. Thailand), the ICJ clearly gave its concept of “settlement”. The Court explained, “in general, when two countries establish a frontier between them, one of the primary objects is to achieve stability and ﬁnality.”1 The Court emphasized the elements of stability and ﬁnality in territorial settlement. In its comment about Thailand’s conduct, the ICJ gave the following merits: “She has, for ﬁfty years, enjoyed such beneﬁts as the Treaty of 1904 conferred on her, if only the beneﬁt of a stable frontier.”2 In the Case of Sovereignty over Certain Frontier Land (Belgium/Netherlands),3 similarly, the ICJ emphasized that ﬁnality was achieved in the Boundary Convention of 1843. In criticizing the conduct of the Netherlands, the Court said: “For almost a century the Netherlands made no challenge to the attribution of the disputed plots to Belgium.”4 The case concerning the Arbitral Award Made by the King of Spain on 23 December 1906, between Honduras and Nicaragua,5 suggested the importance of stability and ﬁnality in settlement. The ICJ said, “Nicaragua’s failure to raise any question with regard to the validity of the Award for several years after the full

1 2 3 4 5

ICJ Reports 1962, p. 34. Ibid., p. 32. ICJ Reports, 1959, p. 209. Ibid., p. 227. ICJ Reports, 1960, p. 192.

38

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terms of the Award had become known to it further conﬁrms the conclusion at which the Court has arrived.”6 A. O. Cukwurah explained that the term “ﬁnality” rather expresses the consummation of an intention to secure a legal relationship.7 Quite clearly, the ICJ regarded ‘stability and ﬁnality’ as essential and integral elements in settlement of territorial and boundary disputes. If the disputing parties have achieved a stable border in the disputed area through a lawful process, the Court would like to presume that the dispute is over and the border permanent. Therefore, as far as a territorial dispute is concerned, the basic meaning of “settlement” should be ‘stability and ﬁnality.’ In the case of the Temple of Preah Vihear, the ICJ also suggested that settlement was to achieve peace. The Court observed that “the whole question of Siam’s very long frontiers with French Indo-China had, in the period prior to 1904, been a cause of uncertainty, trouble and friction, engendering what was described in one contemporary document placed before the Court as a state of ‘growing tension’ in the relations between Siam and France.”8 And the Court thought it legitimate to conclude that an important objective of the settlements of the 1904–1908 period was to put an end to this state of tension and to achieve frontier stability on a basis of certainty and ﬁnality.9 In other words, the settlement had achieved peace in the frontier. The disputing parties may arrive at a modus vivendi regarding certain aspects of a dispute without actual resolution of the whole dispute. This temporary peace arrangement is diﬀerent from so-called “settlement” because it can only imply that the parties discontinue hostile activities concerning a claim without coming to an agreement on the dispute itself. Sometimes, even if a settlement of a dispute seems to have been unilaterally imposed or to have been bilaterally accepted, subsequent developments may cause this dispute to revive. The party who is forced to accept an unsatisfactory settlement may raise the dispute again when he gets a chance. In these cases, stable peace is not yet achieved in the disputing areas. Thus, the settlement of territorial and boundary disputes becomes more complex when the element of peace is involved. The state of peace is both physical and psychological phenomenon. At the physical level, a dispute may be regarded as “settled” and peace is achieved when the dispute is submitted to a procedure that leads to a decision. The procedure may come in the form of negotiations or good oﬃces or mediation or conciliation or arbitration or adjudication. The whole procedure is also mixed with the psychological elements. Settlement, whether reached through negotiated agreement or third-party decision,

6 7 8 9

Ibid., p. 213. A. O. Cukwurah, op. cit. (1967), p. 122. ICJ Reports 1962, p. 34. Ibid., pp. 34–5.

Settlement of Territorial and Boundary Disputes

39

must be subjectively accepted by both parties as a fair and legitimate resolution of the matter.10 A territorial demarcation, however achieved, will in practice fail to settle the problem if a dissatisﬁed party encourages its nationals or ethnic kinsmen whether rightly or wrongly to regard it as unjust. Relations between total winners and total losers at the negotiation table are rarely successful, or, if successful, do not augur a lasting result. In history, peace was narrowly deﬁned as absence of war.11 In ancient Rome practice, peace was even the same as the unconditional surrender to Roman domination of other peoples and nations.12 This kind of peace was established on abuse of power and cannot last forever. Nowadays peace has its implications of equality, consent, mutual respect, harmony and good relationship. As Wei Tao-Ming has writtern, genuine peace must secure harmony of interests and desires among all peoples.13 At the psychological level, three senses are involved: the sense of the inherent fairness of the settlement; the sense of the fairness and legitimacy of the procedures through which the settlement was reached; the sense of the extent to which the settlement bears some relation to the practical realities of their relative power with respect to the dispute.14 If the disputing parties accept the possibility of a judicial settlement of their dispute at the psychological level, the parties have accepted that the question is a question of law and that the system of law and the competence of the Court are in general adequate. In other words, the parties have basically believed that the Court’s judgment would be a fair and legitimate settlement. The psychological elements are closely related to how much the disputing parties are satisﬁed with the settlement. But bear in mind that this satisfaction does not mean a complete satisfaction. It can only be a relative one, that is, a certain degree of satisfaction owing much to many inﬂuential factors, e.g. international law (inclusive of the case law of international courts and tribunals), legitimacy, inﬂuential power, urgency to settle the dispute, economical development, etc. What would be a ‘satisfactory’ result to the disputing parties varies from context to context.15 Nevertheless, a nation may be willing to give up something, but could be unwilling to having lost all, by resorting to peaceful settlement. In territorial and boundary disputes, zero-sum solutions are generally impracticable. That is why in

10 11

12

13 14 15

R. B. Bilder, op. cit. (1986), p. 28. P. Belli. A Treatise on Military Matters and Warfare (H.C. Nutting trans.) (The Clarendon Press, Oxford 1936), pp. 75–80. G. Zampaglione. The Idea of Peace in Antiquity (R. Dunn trans.) (University of Notre Dame Press, London 1973), p. 133. T. Wei. ‘Victory Is Not Enough’ 5 (2) Free World (1944), p. 157. R. B. Bilder, op. cit. (1986), p. 29. A. V. Lowe. ‘Ends and Means in the Settlement of International Disputes over Jurisdiction’ 11 Review of International Studies (1985), p. 183.

40

Chapter 2

practice the disputing parties like to make some arrangements beforehand, such as signing ﬁshery or joint development agreements, to secure their mutual beneﬁt from the resources in the disputed areas. For example, when the United Kingdom and France took the Minquiers and Ecrehos case16 to the ICJ in 1953, they had already resolved the issue of ﬁshing rights around the islands in a separate agreement.17 After all, states, whether neighbours are not, are bound to maintain mutual, lasting peaceful relations. It is necessary to govern interstate peace by universal standards, i.e., standards established and shared by all sovereign states.18 International law is the generally accepted standard. A settlement based on it is more likely to be accepted as a legitimate result. Achieving such a settlement is a political or judicial or both process. The disputing parties need reconcile their conﬂicting ambitions and gratify their desires in accordance with international law, especially the rules and principles elaborated by international courts and tribunals. Even in the political process, international law also serves as the third party between the disputants. This law-orientated process may help the disputing parties to overcome some psychological problems and become more willing to accept a compromise based on international law.

2.2

Legal Justiﬁcations

Territorial claims are claims to particular territory made by a state either seeking sovereignty or aﬃrming its pre-existing sovereignty over that territory. The types of claims made by a state to territory reﬂect the doctrines and conditions dominant in international relations at the time. The claimant asserts his right for the disputed region and supports his assertions by a process of reasoning that appeals to the commonly accepted dogma of the period concerning the utility and ownership of territory.19 Treaties, eﬀective control, uti possidetis, geography, economy, history, culture, elitism, ideology, strategy, convenience and necessity, and State interests, etc. have been used by states as the justiﬁcations to claim some titles. The analyses of the ICJ cases suggest that some of them are more acceptable in the issues of territorial claims, such as treaties, eﬀective control, uti possidetis, geography, economy, history, strategy and State interests.

16 17

18

19

ICJ Reports, p. 47. J. G. Merrills. ‘International Boundary Disputes in Theory and in Practice: Precedents Established’ in J. Dahlitz (ed.) Peaceful Resolution of Major International Disputes (United Nations, New York 1999), p. 99. B. Stark. ‘Conceptions of International Peace and Environmental Rights: “The Remains of the Day”,’ 59 Tennessee Law Review (1991–1992), p. 654. N. Hill, op. cit. (1976), p. 35.

Settlement of Territorial and Boundary Disputes

2.2.1

41

Treaty

Among all the justiﬁcations for territorial claims, the treaty justiﬁcation is most legal in nature. In fact, the claims based on a treaty are particularly persuasive at the ICJ, because under Article 38 of the Statute of the International Court of Justice, when deciding cases “in accordance with international law,” the Court ﬁrstly applies the international conventions, which, whether general or particular, have been expressly recognized by the contesting states. Treaties create legally recognizable expectations for the other parties.20 They rely on these expectations in their conducts at both the domestic and international level. It is generally believed that states accede to international agreements voluntarily with an expectation to structure their relationship in the way that best suits their interests.21 In the case of Sovereignty over Certain Frontier Land (Belgium/Netherlands), the Kingdoms of Belgium and of the Netherlands submitted a frontier dispute to the ICJ by special agreement that charged the court with deciding which party had sovereignty over certain border plots.22 The parties made claims based on treaties and eﬀective control. The court held that the Parties’ 1843 Boundary Convention established the border, and that the disputed plots were Belgian.23 This holding stemmed from the evolution of previous bilateral treaties between Belgium and the Netherlands. The court rejected the Dutch claim that the 1843 Boundary Convention did not reﬂect the common intention of the parties and was therefore void under the doctrine of mistake.24 The existence of a prior boundary treaty or other documentation reﬂecting interstate agreement as to boundaries (or provisions for their delimitation) is generally decisive for the ICJ. This rule often holds even when an agreement is unclear or incomplete. In cases when state consent is evident, the court has started and ended its legal analysis with the agreement. For instance, in Territorial Dispute (Libya/Chad),25 the court decided the case solely on the basis of a treaty, completely discounting all other arguments. Initially, the parties made arguments based on treaty, uti possidetis, and ideology. The court rejected Libya’s argument that the 1955 Treaty of Friendship and Good Neighbourliness did not establish a boundary between the two countries, ﬁnding that, when interpreted in good faith with ordinary meanings imputed to its terms, the 1955 Treaty left no boundaries undeﬁned.

20

21

22 23 24 25

M. W. Janis. An Introduction to International Law (4 edn. Aspen Publishers, New York 2003), p. 9. M. A. Chirelstein. Concept and Case Analysis in the Law of Contracts (Foundation Press, New York 2001), p. 9. ICJ Reports 1959, pp. 209, 210–11, 212. Ibid., pp. 222–7. Ibid., p. 227. ICJ Reports 1994, p. 6.

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Chapter 2

The court further held that, because the 1955 Treaty was clear on the boundary question, it was unnecessary for the court to consider uti possidetis, title inherited from indigenous peoples, or spheres of inﬂuence. Problems arise in using treaties to resolve territorial and boundary disputes when the treaties do not demonstrate the parties’ consent. For example, in the Sino-Indian border disputes, India regards itself as, territorially, the heir of British India, and claims that the boundaries settled by the treaty signed by its parent state Britain and Tibet are its own boundaries, namely, part of this boundary is the McMahon Line of 1914. China argues that the boundary line was ﬁxed arbitrarily and was neither recognized nor accepted by the Chinese Government.26 The ICJ considers itself to be required to resolve disputes ﬁnally, so it interprets its authority so as to permit a decision based on other justiﬁcations. 2.2.2

Eﬀective Control

Eﬀective control refers to the fact that a state has uncontested administration of the land and its resident popu1ation. Professor Yehuda Blum describes administration as the exercise of the appropriate amount of political, military, or administrative control under the circumstances and with the intention to govern the territory.27 The possession consists of two parts in justiﬁcation: one is what constitutes an abandonment of the land by the last governing entity; and the other is what constitutes administration of the land.28 In practice, the problems lie in the status of abandonment as a precondition to eﬀective control. Some argue that the land in the status of abandonment should be terra nullius 29 while some others say that the abandoned land can be a land without a minimum degree of sovereign activity.30 Many competing claims surely arise when the parties ﬁnd no consensus on the applicable standards. Generally, the possession should satisfy the requirements of the intention to govern the territory and the continuous and eﬀective occupation and administration. These requirements have been implied in the case of Minquiers and Ecrehos (France/United Kingdom).31 By special agreement, France and the United Kingdom (U.K.) submitted to the ICJ their dispute over the sovereignty of the Minquiers and Ecrehos island groups, located in the English Channel between Jersey (U.K.) and the French mainland.

26

27

28 29 30 31

See generally A. Lamb. The China-India Border: The Origins of the Disputed Boundaries (Oxford University Press, London 1964). Y. Z. Blum. Historic Titles in International Law ( Martinus Nijhoﬀ, The Hague 1965), pp. 101, 110, 118. A. Burghardt. ‘The bases of Territorial Claims’ 63 Geographical Rev. (1973), pp. 228–29. N. Hill, op. cit. (1976), p. 146. S. R. Jennings, op. cit. (1962), p. 30. ICJ Reports 1953, p. 47.

Settlement of Territorial and Boundary Disputes

43

In the absence of a valid treaty claim, the court considered the eﬀective control arguments and found that the British government exercised sovereign jurisdiction and local administration over Minquiers and Ecrehos through such acts as judicial proceedings, local ordinances regarding the handling of corpses, levying taxes, licensing commercial boats, registering deeds to real property, and conducting census enumerations and customs aﬀairs. Thus, the court awarded the territory to the United Kingdom.32 2.2.3

Uti Possidetis

In accordance with uti possidetis, when a State becomes independent from its colonial power, the State automatically inherits its colonial boundaries. Any eﬀorts by another State to colonize, occupy, or otherwise violate the State’s territory after it has gained independence are ineﬀective and of no legal consequence upon the State’s territorial boundaries. This principle was used to deﬁne postcolonial boundaries in Latin America, Asia, and Africa.33 In the recent case of Land and Maritime Boundary (Cameroon v. Nigeria: Equatorial Guinea Intervening),34 we can ﬁnd it as a decisive justiﬁcation. In 1994 Cameroon lodged proceedings against Nigeria, focusing generally on sovereignty over the Bakassi Peninsula and the Lake Chad region. The court found that the 1929–1930 Thomson-Marchand Declaration, to which the United Kingdom and France had agreed, made a detailed delimitation of the interstate border. The court wholly rejected Nigeria’s historical consolidation of title argument and ﬁnally resolved the parties’ treaty and uti possidetis arguments by looking at the colonial actions before their independence.35 But the award of Honduras Border case (Guatemala v. Hondura)36 illustrates the practical diﬃculties of applying the principle of uti possidetis. This dispute between Honduras and Guatemala related to the course of the boundary between them. It was referred to a Special Tribunals by agreement between the parties. The Special Agreement recorded that the parties agreed that the only line that can be established de jure between their respective countries is that of the Uti Possidetis of 1821. The Tribunal was therefore required to determine that line. But the Parties disagreed on whether the Tribunal was required to establish the boundary on the basis of uti possidetis juris or de facto. Finally, the Tribunal, having permitted itself

32 33

34 35 36

Ibid., pp. 65–9. P. M. Munya. ‘The International Court of Justice and Peaceful Settlement of African Disputes: Problems, Challenges and Prospects’ 7 J. Int’l L. & Prac. (1998), pp. 159, 215. ICJ Reports 2002, p. 303. Ibid., pp. 335–44, paras. 41–55. 2 RIAA (1933), p. 1307.

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this wide concept of the uti possidetis criterion, found it impossible to establish the line of uti possidetis in considerable portions of the boundary in dispute.37 2.2.4

History

This principle had the useful function of excluding possible acquisition of territory by reliance on a concept of ‘eﬀective occupation’. Although eﬀective control presents the strongest claim under property law, historical claims create an underlying entitlement to territory, regardless of whether a state has actual or constructive possession of the land at the time of the claim. The most common way in which a historic claim is advanced is to refer to a set of historical facts to establish that they logically lead to a right to historic possession.38 A claim of historic right is strengthened by the passage of time. Absence of protest is the key to the legal reality of the title.39 The absence of protest is deemed to mean that that state is estopped from claiming the title that it may have otherwise had. As the ICJ said in the Anglo-Norwegian Fisheries case,40 historic title justiﬁes a situation “which would otherwise be in conﬂict with international law.” The historic claim is generally used in combination with other claims, such as ethnic, strategic, and economic claims.41 So historic claims sometimes become so inextricably intertwined with other considerations that tribunals may refuse recourse to them in their decisions. For example, in the recent case of Land and Maritime Boundary (Cameroon v. Nigeria: Equatorial Guinea Intervening),42 the court wholly rejected Nigeria’s historical consolidation of title argument, holding that it could not replace the established modes of acquisition of title under international law, which take into account many other important variables of fact and law.43 2.2.5

Geography

Mountain ranges, rivers, oceans, and other bodies of water and physical formations have perennially separated political entities.44 They are often identical and create a clear dividing line between two states. In the Rann of Kutch Arbitration, the Tribunal awarded a peninsula of land, known as Nagar Parkar, to Pakistan, even though Pakistan had not established legal title to it. The Tribunal based this decision on the geographical location of this area. Because the area was wholly surrounded by

37 38 39 40 41 42 43 44

Ibid., pp. 1322, 1324, 1325. S. P. Sharma, op. cit. (1997), p. 31. D. P. O’Connell. International Law, Vol. 1 (2 edn. London 1970), p. 421. ICJ Reports, 1951, p. 131, para. 116. N. Hill, op. cit. (1976), p. 81. ICJ Reports 2002, p. 303, pp. 342–44. Ibid., p. 352. A. Burghardt. ‘The bases of Territorial Claims’ 63 Geographical Rev. (1973), pp. 235–37.

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45

Pakistani territory, the Tribunal reasoned that awarding the area to India would inevitably lead to friction and conﬂict.45 In processing the Taba Area Arbitration,46 the Tribunal also took consideration of geography. It decided in favour of the proposed locations of the pillars that came closest to establishing a straight line connecting adjacent agreed pillar locations and ﬁnally concluded, based on the factual evidence before it, that the locations advanced by Egypt established the recognized boundary during the critical period.47 Sometimes geographical justiﬁcations for territorial boundaries are rather psychological. In the case Maritime Delimitation and Territorial Questions (Qatar v. Bahrain),48 the ICJ rejected the claim based on geographical justiﬁcation. In 1991, Qatar instituted proceedings against Bahrain before the ICJ to resolve a dispute about sovereignty over the land chunk Zubarah, the Hawar Islands, and the island Janan, all located between the Qatari peninsula and Bahrain. The history of Bahrain and Qatar, both former British protectorates, ﬁgured prominently in the dispute. Qatar and Bahrain made arguments based on uti possidetis, eﬀective control, history, and geography. As to the Hawar Islands, the court rejected Qatar’s claim not to have consented to the 1939 British decision that the islands were part of Bahrain, ﬁnding it decisive that both parties had pled their cases before the British authorities. The court therefore declined to consider Qatar’s arguments based on colonial eﬀectivités, original title, and geographic proximity.49 In Temple of Preah Vihear, the territory in question formed an escarpment – clearly separable from the plains below the mountain range – and the boundary was intended to follow a watershed line. But this ostensibly natural frontier was irrelevant to the court.50 2.2.6

Economy

Economic justiﬁcations for territorial claims assert that the territory in question is “necessary to the viability or development of the state.”51 For example, the territory may be necessary to facilitate internal and international transportation routes for goods (including pipelines, roads, railways, and ports), to exploit raw materials, to cultivate land, and the like.52 Similarly, states may desire the territory to attract

45 46 47 48 49 50 51

52

7 ILM (1968), pp. 633, 692. Award in Taba Arbitration, 27 ILM (1988), pp. 1421, 1453. Ibid. Maritime Delimitation and Territorial Questions (Qatar v. Bahr.), ICJ Reports 2001, p. 40. Ibid. ICJ Reports 1962, p. 6. L. Brilmayer and N. Klein. ‘Land and Sea: Two Sovereignty Regimes in Search of a Common Denominator’ 33 N.Y.U. J. Int’l L. & Pol. (2001), p. 703, pp. 730–31 (examining the economic value of control over land and water). N. Hill, op. cit. (1976), p. 106.

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foreign investment,53 which requires the existence of land, sea, and aerial passages.54 The most common economic claim made to territory is the need for raw materials and industrial products.55 In the Brcko Area Arbitration,56 the two parties, the Republika Srpska (“RS”) and the Federation of Bosnia and Herzegovina(“the Federation”), claimed their titles on grounds of the economic importance of Brcko to them. The Federation asserted that Brcko was crucial to the economic development of the Federation, providing the only link to important markets and products in Europe. The Tribunal gave equal weight to the equitable considerations of the RS, namely, the RS’s assertion that it had vital strategic and economic interests in preserving a connecting corridor between its eastern and western parts through Brcko.57 In the practice of international adjudication, economic considerations are mainly applied in claims to sea areas. In Anglo-Norwegian Fisheries case and North Sea Continental Shelf case, socio-economic questions have been taken into consideration. 2.2.7

Equity

With regard to the unicum of each maritime boundary dispute, the 1982 UNCLOS provides that maritime boundaries shall be determined by the application of equitable principles. In other words, in order to achieve an equitable solution, all the relevant circumstances shall be taken account of in maritime delimitations.58 The purpose for the application of equity is to modify the general rule of law where the particular circumstances of the case so require.59 Equity can help to avoid decisions that are a reﬂection of abstract principles detached from the circumstances that a tribunal may face.60 In the Gulf of Maine decision, the Chamber took account of geographical factors to achieve an equitable result.61 In the Continental Shelf case (Tunisia/Libya), the ICJ itself has observed: 53

54 55 56

57 58 59

60

61

United States Institute of Peace. Territorial Disputes and Their Resolution: the Case of Ecuador and Peru (27 1999). At [13 Apr. 2008]. N. Hill, op. cit. (1976), p. 92. Ibid., p. 106. Arbitration for the Brcko Area (Rep. Srpska v. Fed. of Bosn. & Herz.), 36 ILM (1997), pp. 396, 409. 36 ILM (1997), p. 396, pp. 428–29. UNCLOS, Art. 74 and 83. L. D. M. Nelson. ‘Roles of Equity in the Delimitation of Maritime Boundaries’ 84 AJIL (1990), p. 840. M. Lachs. ‘Equity in Arbitration and in Judicial Settlement of Disputes’ in S. Muller and W. Mijs (eds.) The Flame Rekindled: New Hopes for International Arbitration (Martinus Nijhoﬀ Publishers, 1994), p. 127. Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. U.S.), ICJ Reports1984, p. 246. See also I. Raileanu. ‘Equity in Maritime Boundary Delimitations: The Gulf of Maine Case’ 14 Hastings Int’l & Comp. L. Rev. (1990–1991), pp. 669–717.

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47

Equity as a legal concept is a direct emanation of the idea of justice. The Court whose task is by deﬁnition to administer justice is bound to apply it. In the course of the history of legal systems the term ‘equity’ has been used to deﬁne various legal concepts. It was often contrasted with the rigid rules of positive law, the severity of which had to be mitigated in order to do justice. In general, this contrast has no parallel in the development of international law; the legal concept of equity is a general principle directly applicable as law.62

The Court is bound to apply equitable principles as part of international law and to balance up the various considerations in order to produce an equitable result. Application of equitable principles needn’t rely on the Parties’ agreement. This is distinguished from decision ex aequo et bono because the Court takes a decision ex aequo et bono only on condition that the Parties agree.63 In fact, the modern scholarly view also holds the “equity is built into the legal system.”64 However, equity should not be viewed as giving “a blank cheque to be ﬁlled in by judges.”65 On the contrary, resolution of any maritime boundary dispute must be based on the particular context in which it arose. All the relevant circumstances that are required to respect should serve the purpose of achieving an equitable result.66 In sum, among all the justiﬁcations concerning territorial claims, only three of them have operated consistently as the ICJ’s decision rule: treaty, uti possidetis and eﬀective control.67 The practice of the ICJ seems to suggest such a general pattern: treaties are ﬁrst taken into account in settling territorial and boundary disputes and only when there are no valid treaties available does the ICJ turn to the justiﬁcation of eﬀective control.68 Uti possidetis helps a state which becomes independent to use its colonial power’s treaties and eﬀective control to claim its boundaries. Only when a decision on any of the three grounds is impossible will the Court balance up other justiﬁcations in deciding a case. In maritime boundary disputes, the ICJ often applies equitable principles to achieve justiﬁed results.

62 63 64 65

66

67

68

Tunisia/Libya Case, ICJ Reports 1982, p. 60, para. 71. Ibid., p. 60, para. 71. M. Lachs, op. cit. (1994), pp. 125, 127. H. Lauterpacht. The Function of Law in the International Community (Oxford University Press, London 1933), p. 317. B. Kwiatkowska. ‘Equitable Maritime Boundary Delimitation – A Legal Perspective’ 3 Int’l J. Estuarine & Coastal L. (1988), p. 289. B. T. Sumner. ‘Territorial Disputes at the International Court of Justice’ 53 Duke L. J. (2003–2004), pp. 1811–2. Ibid.

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2.3

The Role of Critical Date in Territorial and Boundary Disputes

The critical date is most frequently resorted in territorial and boundary disputes. In international law, it refers to the point of time falling at the end of a period within which the material facts of a dispute are said to have occurred. In other words, it is the date after which the actions of the parties to a dispute can no longer aﬀect the issue.69 Within the period, a party should be able to show the consolidation of its title or its fulﬁllment of the requirement of the doctrine of occupation. As Judge Huber in the Island of Palmas case put it:70 If a dispute arises as to the sovereignty over a portion of territory, it is customary to examine which of the States claiming sovereignty possesses a title – cession, conquest, occupation etc – superior to that which the other State might possibly bring forward against it. However, if the contestation is based on the fact that the other Party has actually displayed sovereignty, it cannot be suﬃcient to establish the title by which territorial sovereignty was validly acquired at a certain moment; it must also be shown that the territorial sovereignty has continued to exist and did exist at the moment which for the decision of the dispute must be considered as critical.71

However, there can be an important diﬀerence of opinion about what is to be regarded as the critical date in relation to a particular dispute. In the Minquiers and Ecrebos case,72 France asked the Court to regard one period in the history of these rocky islets as critical, whilst the British side argued that it was a diﬀerent and later period that was critical.73 The critical time can never be later than the date on which legal proceedings are commenced. Further, the choice of critical date is a matter not of procedure but of substance, so it must be a matter ultimately for the court itself to determine in the course of its decision.74 It has proven that the doctrine of critical date cannot prevent Courts from looking at the whole of the evidence before coming to a decision. In the Taba Award,75 the tribunal stated: “[E]vents subsequent to the critical period can be in principle also relevant, not in terms of a change of the situation, but only to the extent that

69

70 71 72 73 74 75

D. H. N. Johnson. ‘Acquisitive Prescription in International Law’ 27 BYBIL (1950), pp. 332, 342. 2 RIAA (1928), p. 839. Ibid., at p. 845. ICJ Reports 1953, p. 47. R. Jennings, op. cit. (1992), p. 711. Ibid. E. Lauterpacht. (ed.) International Law Reports Vol. 80 (Grotius, Cambridge 1991), p. 226.

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they may reveal or illustrate the understanding of the situation as it was during the critical period.”76 In the Island of Palmas Case,77 Judge Huber said: The events falling between the Treaty of Paris, December 10, 1898, and the rise of the present dispute in 1906, cannot in themselves serve to indicate the legal situation of the island at the critical moment when the cession of the Philippines by Spain took place. They are however indirectly of a certain interest, owing to the light they might throw on the period immediately preceding.78

The importance and role played by the concept of the critical date are obvious in several recent cases tried by the ICJ, such as the cases of Maritime Delimitation and Territorial Questions between Qatar and Bahrain,79 Land and Maritime Boundary between Cameroon and Nigeria80 and Sovereignty over Pulau Ligitan and Pulau Sipadan between Indonesia and Malaysia.81 In the case of Sovereignty over Pulau Ligitan and Pulau Sipadan, having found ﬂaws in the primary arguments of both parties, the Court considered whether an examination of eﬀectivités provided a basis for a decision.82 In this regard, Indonesia argued that 1969 was a critical date. The Court essentially agreed, holding that “it cannot take into consideration acts having taken place after the date on which the dispute between the Parties crystallized unless such acts are a normal continuation of prior acts and are not undertaken for the purpose of improving the legal position of the Party which relies on them.”83 Accordingly, the Court gave weight only to pre-1969 activities, thereby precluding any consideration of Malaysian activities on the islands, particularly in relation to a tourist facility for scuba divers. In this case, it was the express recognition of the 1969 critical date that made it possible for the Court to avoid the sensitive legal questions associated with Malaysia’s involvement in the establishment, and continuing development and regulation since the 1980s.

2.4

Analysis of Existing Dispute Resolution Mechanisms

States have forged two major classes of methods to settle disputes: diplomatic and judicial. The procedures of negotiation, consultation, good oﬃces and mediation, fact ﬁnding and conciliation are dubbed “diplomatic or political”, while arbitration 76 77 78 79 80 81 82 83

Ibid., the Taba Award, para. 175. J. B. Scott. The Hague Court Reports, Series 2 (Oxford University Press, New York 1932), p. 83. Ibid., p. 83, 125. ICJ Reports 2001, p. 40. ICJ Reports 2002, p. 303. ICJ Reports 2002, p. 625. Ibid., pp. 678–9, para. 126–27. Ibid., p. 682, para. 135.

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and judicial settlement by international tribunals are claimed as “judicial or legal”.84 The basic distinction between the diplomatic and judicial is not that the diplomatic methods are not strictly based on law but, rather, that it is politics that dictates outcomes are generally non-binding, unlike those achieved by the judicial methods. Rules exist for the use of diplomatic methods, even for negotiations, which are face-to-face communications to settle a dispute without the aid of third parties.85 The law is always present as an invisible third party, even in negotiations; and the disputing parties’ perceptions of the strength of their respective legal arguments is a major factor inﬂuencing the outcome of the negotiations or the decision to move from negotiation to some other form of dispute settlement.86 In China’s academia, the diplomatic methods generally include negotiations and consultations, good oﬃces and mediation, inquiry and conciliation while the judicial methods embraces arbitration and adjudication.87 But in the Chinese government’s practice since 1949, it seems that the diplomatic methods just refer to negotiations and consultations. For example, in its diplomatic declarations with regard to international disputes (except international economic disputes),88 the methods mentioned are just negotiations and consultations. Consequently, this narrow conception prevents China from making full use of the existing dispute settlement mechanisms to achieve peaceful resolutions. This fact becomes more obvious when one considers that since the founding of the People’s Republic of China in 1949, the Chinese government has never used the ICJ or other international courts or tribunals at all. 2.4.1

The Principle of Peaceful Settlement of International Disputes

One of the fundamental objectives of the United Nations Charter is the promotion of the peaceful resolution of disputes. This is referred to in Article 1(1) and is more explicitly stated in Article 2(3), which provides that “all Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.” This principle becomes more detailed in Art 33(1) of the Charter, which reads:

84

85

86 87

88

J. B. Moore. (ed.) International Adjudications Vol. I (Oxford University Press, New York 1929), pp. xxxvi–xxxvii. C. M. Fombad. ‘Consultation and Negotiation in the Paciﬁc Settlement of International Disputes’ 1 AJICL (1989), pp. 707–724. J. Collier and V. Lowe, op. cit. (1999), p. 8. T. Wang. International Law (Law Press, Beijing 1995), pp. 568–613; M. Duan. International Law (Peking University Press, Beijing 1997), pp. 447–70; X. Wang. International Law (Zhongguo zhengfa zaxue chubanshe (China Politics and Law University Press), Beijing 2002), pp. 345–63; A. Zhang. International Law (Renmin fayuan chubanshe (People’s Court Press), Beijing 2000), pp. 672–743. China, since its entry into the WTO in 2001, has accepted the WTO dispute settlement regulations.

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The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, ﬁrst of all, seek a solution by negotiation, enquiry, mediation, conciliation, judicial settlement, resort to regional agencies or arrangements or other peaceful methods of their own choice.

In the UN Charter, Article 33 imposes on States the obligation to settle the disputes, the continuance of which is likely to endanger the maintenance of international peace and security. When the Security Council deems necessary, it can call upon the parties to settle their dispute.89 In such a circumstance, it is the Security Council that decides whether the disputing parties need to settle their disputes, instead of the disputing parties themselves. With regard to the procedural aspect, the Security Council may encourage the disputing parties – by a non-binding recommendation – to choose one of the peaceful methods listed in article 33 or “recommend appropriate procedures or methods of adjustment”.90 Article 2(3) of the UN Charter implies that as long as States do not resort to force, there has been no disposition of violation of law in their failure to settle disputes.91 The Charter’s provision gives the disputing parties the freedom to decide when and how to settle their disputes peacefully, so the further obligations concerning settlement of disputes are expected in bilateral or multilateral treaties. States, based on their sovereignty, have free choice of entering into various international treaties that may include the obligations to settle their disputes. But the principle of peaceful settlement of international disputes in the UN Charter seems to give too much freedom to states. Not surprisingly, some problems become manifest under the principle of “free choice of means”. Unless the disputing parties have already agreed on a procedure for settlement before their dispute arises, it would be diﬃcult for them to establish such a procedure when the parties are already entered into a dispute. The negative part of the principle of “free choice of means” lies in the possibility that states could reject one proposed solution after another. In practice, “free choice” may become very unrealistic when a weak state is confronted by a stronger state that is more likely to abuse its power. Under this principle, international courts are often lack of jurisdiction. For example, Article 36(2) of the ICJ Statute, the so-called optional clause, which is just the reﬂection of the principle, makes the ICJ especially prone to attacks of lack of jurisdiction.92 The “free choice” implies that no state can be required to recognize the jurisdiction of the Court and states may revoke the jurisdiction at

89 90 91

92

UN Charter, Art 33 (2). Ibid., Art. 36 (1). L.Henkin, R. Pugh, O. Schachter and H. Smit. International Law: Cases and Materials (West Publishing, MN 1987), p. 910. G. L. Scott, op. cit. (1987), p. 58.

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any time or even refuse to appear before the Court.93 Territorial disputes are no exception. That is why in the Cameroon v. Nigeria case Nigeria quickly objected to the ICJ’s jurisdiction when the ICJ awarded the Bakassi to Cameroon. Nigeria even called attention to the fact that it had objected to the jurisdiction of the Court and had never agreed to be bound by the Court’s decision.94 Likewise, the United States, Thailand, and France are examples of countries that rejected ICJ compulsory jurisdiction in the past. Under the principle of “free choice”, one party may take the view that only negotiations can bring about a satisfactory solution, while the other party may consider that a court judgment constitutes the only satisfactory mode of settlement.95 This easily creates an impasse in dispute settlement, even if both parties act in good faith. The principle of free choice, which is based on state’s sovereignty, per se, is antagonistic to the principle of co-operation. The disputing parties can avoid cooperation in practice. For example, in the Southern Blueﬁn Tuna dispute (Australia and New Zealand v. Japan), Japan tried to avoid cooperation by purposely delaying the starting of dispute settlement proceedings. In this case, Australia and New Zealand had formally requested urgent consultations and negotiations with regard to Japan’s unilateral “experimental ﬁshing program”. They were conducted for over a year, partly within the Commission for the Conservation of the Southern Blueﬁn Tuna, but led to no accord. Japan then commenced unilateral ﬁshing, which was considered by the applicants as a termination of the negotiations and thus as an authorization to begin compulsory dispute settlement under Part XV, Sec. 2 UNCLOS. Japan, in turn, replied that it had no intention of terminating the negotiations.96 If the concept of the free choice of settlement methods has any validity, it is only on the condition that it does not stand alone. Explicitly, one of the parties may set into motion a settlement procedure, even when the other party resorts to dilatory methods or avoids “meaningful negotiations”. Such latitude is provided, for instance, in the United Nations Convention on the Law of the Sea for certain categories of disputes.97

93 94 95

96 97

P. M. Munya, op. cit. (1998), p. 162. ICJ Reports 2002, p. 313. para. 9, 12. B. Simma. (ed.) The Charter of the United Nations: A Commentary, vol. 1 (2 edn. Oxford/New York 2002). ITLOS, provisional order of 27 August 1999, 38 ILM (1999), p. 1624, paras. 56–60. Third United Nations Conference on the Law of the Sea, pp. 151–200, U.N. Doc. A/CONF. 62/122, U.N. Sales No. E. 84.V. 3 (1982).

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53

Negotiations and Consultations

Negotiations are regarded as the most elementary method of settling international disputes between the contending parties.98 Whenever there is a dispute, the ﬁrst reaction to it must necessarily be “negotiations” between the disputants, even if initially only in the form of recriminatory exchanges. The most prominent characteristic of this method is the total absence of a third party, so the other methods can be bunched up into the third party settlement.99 What is the deﬁnition of negotiations? Judge Moore in the Mavrommatis Palestine Concessions case gave the best one: . . . In the international sphere and in the sense of International Law, negotiation is the legal and orderly administrative process by which Governments, in the exercise of their unquestionable powers conduct their relations with another and discuss, adjust and settle their diﬀerences.100

Dr. Charles M. Forbad singled out three important features of negotiations: (1) Negotiations are a legal process and as such must operate and function within the general framework of International law. (2) From the broad formulation, it covers both “ad hoc” and permanent or institutional negotiations, as well as bilateral and multilateral negotiations. (3) Negotiations provide a medium both for general discussions and aﬀecting adjustments that help towards either preventing or avoiding potential disputes and resolving actual disputes that have arisen.101 As the oldest essential instrument for resolving as well as preventing or avoiding disputes, negotiation becomes the preferred method of resolving international disputes for the obvious reasons: Firstly, negotiation, as a procedure, has the great advantage of ﬂexibility in which it may be used for any type of dispute and pursued through any channel authorized by the parties.102 Secondly, using negotiations, the disputing parties have maximum control over both the dispute settlement process and outcome. Governments tend to have a preference for dispute settlement procedures over which they retain the greatest

98 99

100

101 102

A. Cassese. International Law (Oxford University Press, Oxford/New York 2001), p. 213. L. L. Randolph. Third-Party Settlement of Disputes in Theory and Practice (Oceana Publications, New York 1973), pp. 1–28. The Mavrommatis Palestine Concessions case ( Judgment), PCIJ series A. No. 2 (1924), pp. 62–63. C. M. Fombad, op. cit. (1989), p. 38. S. H. Waldock. International Disputes: the Legal Aspects (Europa Publications, London 1972), p. 36.

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measure of control, especially related to the vital interests of the states. Negotiations leave the solution entirely to the parties concerned, without any undue pressure from outside,103 so the self-control is invariably tight. In contrast, third-party settlement carries a shortcoming of reducing a state’s ﬂexibility and freedom in the process of handling a dispute. Negotiations places responsibility for resolving the dispute on the parties themselves, therefore they are in the best position to develop a mutually acceptable solution. Thirdly, negotiations usually guarantee the maximum acceptability and stability of settlement. Because any settlement reached by negotiations is presumed to be freely agreed to by the parties to the dispute, rather than imposed on them by third parties, the parties are in the most willing mood to carry it out. Fourthly, negotiations are likely to promote good and long term cooperation between states if the disputing parties derive some beneﬁt from the diplomatic exchange. Negotiations favor compromise and accommodation between the parties and the result is, more likely, a “give-and-take” rather than “all-or-nothing” solution. Finally, negotiations are generally simple, direct and less costly. It can be carried on in a secret way more easily than any third party settlement. It is often said that the process of negotiations can develop the parties’ mutual understanding that can foster cooperation and dispute management between or among the parties.104 We must admit that negotiations still remain as one of the most important instruments for settlement of territorial and boundary disputes. But, in no way can it justify the notion that diplomatic negotiation is the only perfect method to settle territorial and boundary disputes. The inherent limitations of negotiation become apparent in resolving territorial and boundary disputes. During negotiations, the parties confront each other with nothing but their own assertions of fact and law and such evidence as they may choose to produce. Their negotiating procedures and resources are probably inadequate for establishing mutually agreed facts or data, which are instrumental for a resolution. In the event of a conﬂict, neither Government may be prepared to make the ﬁrst move, either because it conceives its duty to press its State’s claims to the utmost or because of a fear of being criticized by public opinion at home.105 In many situations, no arrangement, however ingenious, is capable of producing a fruitful result. For example, in a territorial dispute the party in possession may see no reason to negotiate at all.106 103 104

105 106

A. Cassese. International Law (Oxford University Press, Oxford/New York 2005), p. 279. See Chinese Government’s diplomatic declarations, at [11 Feb. 2008]. S. H. Waldock, op. cit. (1972), p. 36. J. G. Merrills. International Dispute Settlement (Cambridge University Press, Cambridge 2005), p. 24.

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Negotiation free from any third party’s inﬂuence tends to favour the stronger against the weaker power.107 The stronger State may easily subdue the other party by resorting to a host of means available to it on account of its de facto superiority.108 A negotiated settlement may reﬂect only the parties’ relative negotiating power, rather than the legal or equitable merits or inherent justice of their respective positions. Thus a state with a completely unjustiﬁed claim may be able to secure a favourable negotiated settlement by bringing superior power to bear.109 So if one party believes its bargaining position is weak, it may prefer to use other dispute settlement instruments, such as conciliation or adjudication, which can lend to its position third party support or support from neutral legal principles. Two powerful states often feel hard to set in the track of fruitful negotiation when they are reluctant to concede for a compromise owing to their pride in their power. Negotiation is merely a method to resolve a dispute, but it does not guarantee the settlement of a dispute. It is quite possible for negotiations to become ineffective if the parties’ positions are far apart and there are no common interests to bridge the gap.110 The failure to compromise by negotiations is attributable to the fact that “territory has a psychological importance for nations that is quite out of proportion to its intrinsic value, strategic or economic.”111 Probably, neither party is willing to compromise so that negotiations reach an impasse. Recently, China and Japan tried to settle their maritime boundary dispute in East China Sea by negotiations, but they failed after nine rounds of talks because they found their views were so diﬀerent and uncompromising.112 If there are no other alternatives available, negotiations end and a war may break out. The Falkland War between UK and Argentina in 1982 gives such an indication. Before the war, the United Kingdom initially denied that there was any dispute with Argentina. When this was no longer feasible, the United Kingdom delayed formalizing negotiations for as long as possible. One alternative after another was discussed and rejected. When there was no prospect of securing a settlement by negotiations the war broke out.113 In some cases, without third party involvement to help the parties reach a compromise, or to decide the matter for them, a dispute concerning territorial interests may trigger a war.

107 108 109 110 111

112

113

Ibid. A. Cassese, op. cit. (2001), p. 279. J. G. Merrills, op. cit. (2005), p. 25. Ibid., p. 24. E. Luard. (ed.) The International Regulation of Frontier Disputes (Thames & Hudson, London 1970), p. 7. BBC News, at [12 Feb. 2008]. J. G. Merrills, op. cit. (2005), p. 26.

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Negotiations are political in nature and often submissive to intervening pressures from some other interest groups. Sometimes such inﬂuential pressures may obstruct negotiations or even make negotiations impracticable for the parties. In such a case, the involvement of third party may relieve the government of direct responsibility and accountability for a compromise and thus make settlement possible. The notion that negotiation is an all-suﬃcient means of settling international territorial and boundary disputes becomes very unacceptable when we consider the limitations of negotiation. China, owing to its historical and ideological reasons, has a distrust of third party settlement and regards negotiation as the only method to settle its territorial and boundary disputes. This situation calls for a change with the advocate of peaceful development. Negotiations can control a conﬂict for a certain time while alternatives are being considered. But every time an alternative is considered and discarded, the dispute has less and less room to evolve toward settlement. The successful control of a conﬂict seems to lie in the ability to avoid running short of viable alternatives.114 Negotiation is not an entirely satisfactory way of securing an expeditious and ﬁnal solution to an international dispute.115 Thus, to guarantee peaceful settlement of territorial and boundary disputes, negotiation should not be regarded as the only and ﬁnal method of dispute settlement. When a dispute becomes too contentious to permit eﬀective negotiation, the third party involvement is critical to reconciling the views of the two states if a solution is to be reached.116 If the parties cannot agree on the substantive aspects of a dispute by negotiations, they may turn to negotiating an agreement on a procedural solution.117 The terms “negotiations” and “consultations” are often used interchangeably.118 There is no signiﬁcant diﬀerence between them.119 But there is theoretical distinction between these two concepts. “Consultation” could be described as consisting of the formal or informal, “ad hoc” or permanent, bilateral or multilateral discussions and conversations between states aimed at avoiding or preventing potential rather than actual disputes. Consultation, unlike negotiation, relates more to situations

114

115 116

117 118

119

R. d. Hoyos. ‘Islas Malvinas or Falkland Islands: The negotiation of a conﬂict, 1945–1982’ in M. A. Morris and V. Millan (eds.) Contolling Latin American Conﬂicts (Westview Press, Boulder, Colarado 1983), pp. 192–3. C. M. Fombad, op. cit. (1989), pp. 44–5. E. Luard. (ed.) The International Regulation of Frontier Disputes (Thames & Hudson, London 1970), pp. 221–5. J. G. Merrills, op. cit. (2005), p. 12. B. Cheng. ‘Dispute Settlement in Bilateral Air Transport Agreements’ in K.-H. Böckstiegel (ed.) Settlement of Space Law Disputes: The present state of the Law and perspectives of further development: Proceedings of an International Colloquium, Munich, 13 and 14 September 1979 (Carl Heymanns Verlag, Bonn 1980), p. 106. A. Aust. Handbook of International Law (Cambridge University Press, Cambridge/New York 2005), p. 432.

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and issues of potential controversy rather than actual disputes.120 Thus, if consultation is aimed at settlement of an actual dispute that has arisen, then it becomes indistinguishable from negotiation.121 2.4.3

Mediation, Good Oﬃces, Conciliation and Inquiry

Negotiation has one way or another to connect with the other methods of dispute settlement. Good oﬃces and inquiry and other means of settlement mentioned in Article 33 of the UN Charter can be regarded as supplementary to negotiation – as serving the purpose either of helping the parties to bring their negotiations to a successful result or of providing an agreed subsidiary means of ﬁnding a solution in the event that a complete impasse has existed in the negotiations. Negotiations are not in conﬂict with other methods. When other methods of settlement engage in, the negotiation does not necessarily terminate. Generally, some minimal negotiations must have taken place before a dispute is brought to a court. In the case of Haya de la Torre (Colombia/Peru), the ICJ noted that all the questions submitted to it have been argued by the parties.122 When the disputing parties can not resolve their dispute by negotiations, they may agree to using good oﬃces and mediation, requesting limited intervention by a third party to help them break the impasse. In the case of good oﬃces, the role of the third party is usually limited to simply bringing the parties into communication and facilitating their negations. Starting or re-starting negotiations is just the end for good oﬃces. In the case of mediation, the mediator usually performs a more active role in fostering face-to-face talk and negotiations between the parties by advancing his or her own informal and nonbinding proposals. Thus, the end of good oﬃce and mediation is just negotiation. Mediation can be regarded as an adjunct of negotiation.123 It has been most eﬀective at forestalling or ending hostilities, sometimes it may produce successful settlements (for example, the representatives of Pope John Paul II mediated a solution to Argentina and Chile’s dispute over the Beagle Channel in 1984),124 but it has often fallen short of reaching a fundamental resolution in the case of territorial and boundary disputes. For example, in the territorial dispute between India and Pakistan over Kashmir in 1965, the mediation of the former Soviet Union was instrumental in securing a cease-ﬁre between the two warring nations. No progress

120 121 122 123 124

C. M. Fombad, op. cit. (1989), pp. 38–9. Ibid., p. 39. ICJ Reports 1951, p. 78. J. G. Merrills, op. cit. (2005), p. 28. M. Laudy. ‘The Vatican Mediation of the Beagle Channel Dispute: Crisis Intervention and Forum Building’ , at [12 Feb. 2008].

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was made, however, in resolving the underlying dispute.125 Prior to the outbreak of the War of the Paciﬁc, the United States tried unsuccessfully to mediate Bolivia and Chile’s territorial dispute. A number of states have oﬀered at various times to mediate – with little success – in Honduras and Nicaragua’s border dispute before that case was settled by the ICJ. And in 1965, Britain and Guatemala requested the United States to mediate in determining the boundaries of newly independent Belize, though the two sides ended up rejecting the U.S. proposal.126 Conciliation is a method for the settlement of international disputes of any nature based on the terms proposed by a Commission set up by the Parties. Before oﬀering settlement proposals, the Commission is obliged to conduct an impartial examination of the various factual and legal elements of the dispute.127 In conciliation, the third party plays a more active role in participation than good oﬃces and mediation though its proposals are not legally binding on the disputants, either. There is one view that conciliation is a kind of institutionalized negotiation.128 The task of the conciliation commission is to encourage and structure the parties’ dialogue, while providing them with whatever assistance may be necessary to bring it to a successful conclusion. Another view is that conciliation is closer to inquiry or arbitration.129 According to this view, the function of the conciliation commission is to provide information and advice as to the merits of the parties’ positions and to suggest a settlement that corresponds to what they deserve, not what they claim. Conciliation is regarded as a form of quasi-arbitration, rather than a forum for negotiation.130 If the parties can negotiate an agreement that their dispute shall be submitted to “conciliation” by an independent commission or by a third State, the resulting solution may provide a substitute for the legislative process.131 Although the number of cases in which conciliation has actually been used remains very small, in practice it has proved particularly useful for disputes like the Jan Mayen case where the parties are seeking an equitable compromise on the delimitation of their continental shelf.132 Inquiry, as a method envisaged in the 1899 Hague Convention for the Peaceful Settlement of Disputes, refers to a scheme whereby the contending parties agree to

125 126

127 128 129 130 131 132

J. G. Merrills, op. cit. (2005), pp. 38–42. United States Institute of Peace. Territorial Disputes and Their Resolution: the Case of Ecuador and Peru (27 1999), [13 Feb. 2008] J. G. Merrills, op. cit. (2005), p. 64. Ibid., p. 72. Ibid., p. 72. Ibid., pp. 72–3. S. H. Waldock, op. cit. (1972), p. 5. J. G. Merrills. ‘The Means of Dispute Settlement’ in M. D. Evans (ed.) International Law (Oxford University Press, Oxford/ New York 2006), p. 542.

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set up an international body, consisting of independent and impartial individuals, for the limited purpose of ‘elucidating the facts [in dispute] by means of an impartial and conscientious investigation’.133 It is for the contestants to decide whether the ﬁndings of the body conducting the inquiry shall, or shall not, be legally binding on them. It aims at establishing facts to facilitate the work of a negotiation or a conciliation or an arbitration or a litigation.134 In reality, many international disputes (including territorial and boundary disputes) are compounded by the simple truth that neither party is prepared to accept the other’s version of events. Therefore, in the present system of international law where no compulsory factﬁnding machinery exists, the commission of inquiry is invaluable.135 2.4.4

Arbitration and Adjudication

Although many states are still reluctant to bring their territorial and boundary disputes before international courts and tribunals for binding decisions, the dynamics of arbitration and adjudication should not be ignored in settling interstate territorial and boundary disputes. In fact, the ICJ and other international courts and tribunals have made a great contribution to peaceful settlement of territorial and boundary disputes. In cases where much depends upon the weighing of complex historical cartographic or survey evidence, authoritative third-party adjudication may be more acceptable domestically than bilateral negotiations.136 As a result of negotiations, states conclude treaties that are binding. The Hague Conventions of 1899 and 1907 give the following deﬁnition: “international arbitration has for its object the settlement of diﬀerences between States by judges of their own choice, and on the basis of a respect for law.”137 There are two basic elements in this deﬁnition: (i) Consent of the arbitrating parties. (ii) On the basis of a respect for law. “Consent of the arbitrating parties” covers not only their own choice of selecting judges, but also deciding the procedures and the jurisdiction of the arbitral tribunal. “On the basis of a respect for law” can mean that the arbitrators observe the rules of natural justice in hearing the parties and must pronounce an award ‘on the basis of a respect for the law’ and must accept it as binding.138 In retrospect, territorial and boundary disputes have been a fruitful source for arbitration, for example, the Island of Palmas Case (1928),139 the Clipperton Island

133 134 135 136 137 138 139

The 1899 Hague Convention, Art. 9. The 1907 Hague Convention, Part III (Article 9–Article 36); the Statue of the ICJ, Art. 50. M. Dixon. International Law (Oxford University Press, Oxford/New York 2005), p. 261. C. Gray and B. Kingsbury, op. cit. (1992), p. 117. The 1899 Hague Convention, Art. 15; the 1907 Hague Convention, Art. 37. S. H. Waldock, op. cit. (1972), pp. 101–2. 2 RIAA, p. 829.

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Arbitration (France v. Mexico) (1932),140 the Argentine/Chile Arbitration (1977),141 the Rann of Kutch Arbitration (Pakistan/Indian) (1968),142 the 1988 boundary award concerning the Taba area between Egypt and Israel,143 the dispute over St. Pierre and Miquelon between Canada and France settled in 1992,144 Chile and Argentina’s use of arbitration to settle their contested border in the Laguna del Desierto region in 1994145 and the Guinea/Guinea-Bissau Maritime Delimitation Case (1992).146 A recent case is the Eritrea-Yemen Arbitration Concerning Maritime Delimitation (1999).147 As far as territorial and boundary disputes are concerned, arbitration has some particular advantages. Firstly, arbitration oﬀers more space for cultural accommodation. Because arbitration allows the arbitrating parties to choose their own arbitrators, they may choose the arbitrators who possess better knowledge of their cultures. When parties to an arbitration come from diverse cultural environments, the arbitrators’ understanding of the cultural psychology of the Parties to the arbitration process is be very critical.148 The Temple case is regarded as a good illustration of the potential importance of the cultural factors.149 The failure of Prince Damrong or the Siamese government to protest at the ﬂying of the French ﬂag during his visits to the temple might have had no great legal signiﬁcance if the judges had known the common experience of most Asiatic States in their intercourse with the Occidental powers.150 The cultural understanding may help the arbitrators to arrange the arbitration in accordance with the parties’ cultural inclination. This feature looks more suitable for resolving such highly emotional disputes as territorial and boundary disputes. To cater for parties’ preference, in the Beagle Channel arbitration (Argentine/Chile), the tribunal appointed was made up by judges of the ICJ;151 and in the Island of

140 141 142 143

144

145

146 147 148

149 150 151

26 AJIL, p. 390. 17 ILM, p. 638. See also RIAA, Vol. XXI, 18 Feb. 1977, pp. 53–264. 7 ILM, p. 633. Egypt-Israel Arbitration Tribunal: Award in Boundary Dispute Concerning the Taba Area, 27 ILM(1988), p. 1421. Court of Arbitration for the Delimitation of Maritime Areas Between Canada and France: Decision in Case Concerning Delimitation of Maritime Areas, 31 ILM(1992), p. 1145. ‘Territorial Disputes and Their Resolution: The Case of Ecuador and Peru Two – Territorial Conﬂicts in Latin America’, at [12 Feb. 2008]. 77 ILR, p. 636. [12 Feb. 2008]. E. P. Mendes. ‘Canada: A new Forum to Develop the Cultural Psychology of International Commercial Arbitration’ 3 (3) J. Int’l Arb. (1986), p. 71. C. Gray and B. Kingsbury, op. cit. (1992), p. 112. Ibid. See also the dissenting opinion of Judge Wellington Koo, ICJ Reports, pp. 90–1. Beagle Channel Arbitration (Argentine/Chile), 52 ILR, p. 93.

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Palmas case,152 Max Huber was appointed as a single arbitrator to decide who had the legal title to the Island of Palmas. Secondly, arbitration allows the arbitrating parties to choose their applicable law. This confers on the parties much more freedom than adjudication. In the Trail Smelter case, the tribunal was instructed to apply “the law and practice followed in dealing with cognate questions in United States of America as well as international law and practice.”153 Hence, in territorial and boundary disputes, arbitral tribunals can be authorized by the disputing parties to decide the applicability of rules, treaties, maps and other ancient documents, and even take into account what is fair and reasonable. In the Rann of Kutch case, the tribunal used “equitable” considerations of various kinds to expand its application and interpretation of the law. The award of certain territory to Pakistan was held to be justiﬁed on the ground that “it would be inequitable to recognize these inlets as foreign territory.”154 This technique has been particularly prominent in arbitrations concerning territorial and boundary disputes.155 Thirdly, arbitration focuses on the resolution of the underlying problem, which leads to the dispute, rather than merely the defeat of one’s opponent. The emphasis on resolution, not battle, also contributes to the benign relationship between the arguing parties. As a result, arbitration – being fact-driven and fact-oriented – is better able to resolve the emotional issues while taking into account of long-term harmonious relationship. This is very important for settlement of territorial and boundary disputes. Meanwhile, arbitration, unlike negotiation, mediation and conciliation, always results in a decision which is binding. So it is a method to settle a dispute rather that delays it. Territory and frontiers need certainty and stability for peace and development. An authoritative decision-making arbitral panel tends to imprint legitimacy on a solution that might otherwise be diﬃcult to achieve in light of domestic political pressures.156 Fourthly, international arbitration is traditionally considered as more yielding to sovereignty than litigation before an international court, because adjudication has less ﬂexible procedure than arbitration. In arbitration, the parties may limit the range of decisions because it is open for the tribunal to reach and maintain a measure of control over stages of the process. Arbitral tribunals have tended to accept and comply with such limitations.157 This feature makes arbitration more attractive to states that, on one hand, yearn for settling their territorial or boundary disputes through legal methods, on the other hand, are reluctant to give up all their 152 153 154 155 156 157

Island of Palmas case (The Netherlands v. United States), 2 RIAA (1928), p. 829. Trail Smelter Arbitration (US v. Canada), 3 RIAA(1938 and 1941), p. 1905. 50 ILR, p. 50. J. G. Merrills, op. cit. (2005), p. 106. C. Gray and B. Kingsbury, op. cit. (1992), pp. 97, 108. Ibid., p. 114.

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control of settlement procedure. For example, the parties are allowed to desire that the arbitration shall be held in private and the award shall remain unpublished. Secrecy is a very important issue in settling the emotional territorial and boundary disputes. In contrast, the judicial tribunal must generally hold its hearings in public. In arbitration, autonomy of the parties can also render intervention by third States virtually impossible. Conclusively, arbitration can be regarded as a shift from the power-orientated system towards the law-orientated system. It is called “an attempt to bring the Rule of Law into international relations and to replace the use of force with the routine of litigation.”158 This advantage was recognized at the Hague Peace Conference 1899, which sought to facilitate its use as a means of settling international disputes and avoiding recourse to the use of force.159 Herodotus of Halicarnasus is the earliest political thinker who considers the arbitration of disputes between states to be a prerequisite for peace.160 Arbitration like other settlement methods also has its weaknesses. One serious weakness is that the validity of arbitral awards is generally handled diplomatically instead of judicially. On one hand, if a state is unable to challenge an unsatisfactory award, submission to arbitration is made more hazardous and less attractive than it ought to be. The Venezuela-British Guiana Boundary award161 is an object lesson here. On the other hand, if it is open to a state to challenge the validity of an award, the “binding” eﬀect of an arbitral award is emptied of most of its meaning. Argentina’s repudiation of the award in the Beagle Channel case162 demonstrates this side of the problem. Adjudication involves the reference of disputes to permanent tribunals for a legally binding decision. It developed from arbitration, which accounts for the close similarity between the two.163 Superﬁcially, the procedure followed by the ICJ in the cases closely resembles the arbitral procedure provided by the Hague Conventions. Their proceedings are both initiated by a compromis, a treaty between the disputants that deﬁnes the subject of the dispute, lists relevant facts, and speciﬁes other procedural details. Arbitral tribunals and the ICJ both have jurisdiction to decide whether they are competent to hear the cases presented to it by the

158 159

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161 162 163

J. Collier and V. Lowe, op. cit. (1999), p. 33. See generally W. E. Darby. W. Evans Darby (4 edn. J. M. Dent, London 1904). See also J. B. Scott. The Hague Conventions and Declarations of 1899 and 1907 (New York 1915). Herodotus. 2 The Histories (H. Carter trans.) (The Heritage Press, New York 1958), p. 411; F. Przetacznik. ‘The Compulsory Jurisdiction of the International Court of Justice’ 68 (1) The Compulsory Jurisdiction of the International Court of Justice (1990), pp. 40–41. 92 British and Foreign State Papers (1899–1900), p. 160. Beagle Channel Award, 52 ILR (1977), p. 93. J. G. Merrills, op. cit. (1998), p. 93.

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compromis of the parties.164 Their proceedings typically consist of presentation of arguments in two phases – written pleadings and oral arguments.165 In addition, the composition of arbitral panels may be similar with a Chamber of the ICJ. For example, the ﬁve-member panel arbitrating the Beagle Channel dispute between Argentina and Chile was composed entirely of the ICJ judges.166 Furthermore, the principles of international law relied upon by the ICJ will necessarily be reﬂected in any arbitral decision. Nevertheless, adjudication still diﬀers from arbitration. Firstly, the judicial court, such as the ICJ, is permanent and can deal with any kinds of disputes which involve international law while the arbitral tribunal is just composed of persons selected by the state parties and is usually created to deal with a particular dispute or class of disputes. Compared with arbitration, a court permanently established may show greater continuity of decisions and thus consolidate the law. Secondly, the judicial tribunal must generally hold its hearings in public, and all its judgments are published while arbitration is usually held in private and the award may remain unpublished if the parties so desire. Thirdly, arbitration is more costly than adjudication. The parties to arbitration have to pay the arbitrators and the tribunal’s registrar and other oﬃcials and meet other expenses of the arbitration, thus making it more expensive than judicial settlement. The parties do not have to make any of these payments in the case of the ICJ.167 Fourthly, the Statute of the International Court of Justice provides an easy and simple procedure in Article 36(2), the Optional Clause, whereby States can accept the jurisdiction of the Court as compulsory ipso facto and without legal agreement in all or a certain class of cases. This can be regarded as one advantage that may be claimed over arbitration in judicial settlement. In addition, the ICJ Statute even expressly permits intervention by third states where the interests of the intervening state may be aﬀected by the Court’s decision.168 For example, the boundary dispute between Cameroon and Nigeria was submitted to the ICJ in March 1994 and the Court ﬁnally decided the case on October 10, 2002. The delay was caused by the intervention of Equatorial Guinea whose potential interests in the broader dispute between Nigeria and Cameroon are relatively minor.169

164 165 166 167

168 169

ICJ Statute, Art. 36, para. 2; The 1907 Hague Convention, Art. 73. ICJ Statute, Art. 43, para. 6; The 1907 Hague Convention, Art. 63. Beagle Channel Arbitration (Arg. V. Chile), Award of Apr. 18, 1977, 17 ILM (1978), p. 634. The expenses of the Court are borne by the United Nations in such a manner as is decided by the General Assembly. ICJ Statute, Art. 32. ICJ Statue, Art. 62. Land and Maritime Boundary Between Cameroon and Nigeria (Camer. v. Niger.; Eq. Guinea intervening), ICJ Reports 2002, para. 18, p. 15.

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Now adjudication is a direct reminder of the ICJ, which, as the successor of the Permanent Court of International Justice, has enjoyed great success since the end of the Cold War. States have increasingly had recourse to international adjudication, in the current belief that independent and impartial third-party binding settlement of disputes constitutes a helpful way of resolving international diﬀerences. In particular, an increasing number of states, chieﬂy developing countries as well as states belonging to the former Socialist bloc, submit disputes to the ICJ.170 It is fair to note that use of the ICJ did increase substantially between the 1960s and 1990s after a period of stalemate situation, reaching an all-time high of eighteen cases on the docket in 1999. This signiﬁcant shift reﬂects the achievements of the expansion of both the law in a particular area and the resort to it. Sir Robert Jennings stated that the legal component of territorial and boundary disputes is straightforwardly justiciable.171 A steady stream of cases pertaining to international territorial and boundary disputes has consistently ﬂown into the ﬁles of the ICJ in recent years. Since 1990, thirteen cases concerning territorial and boundary disputes have been brought to the ICJ. Most recently, Peru instituted proceedings against Chile with regard to a dispute concerning maritime delimitation between the two States in January 2008.172 However, the cases brought to the ICJ has enriched the ICJ case law, which enables other disputing states to appraise the relative strengths and weaknesses of their arguments. This is particularly meaningful for the states that are also involved in territorial and boundary disputes. Recourse to court or tribunal may help states to externalize responsibility and suppress internal passionate nationalism. In any case, it is legitimate for a government to say to its people that they have to abide by a binding decision delivered by a court or tribunal, such as the ICJ. The recent case concerning the sovereignty over the islands of Pulau Ligitan and Pulau Sipadan, which was brought before the ICJ by Indonesia and Malaysia,173 has been widely remarked and noted in diplomatic circles because it is the ﬁrst case to be brought to international dispute settlement by a state of the Association of

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172 173

A. Cassese. International Law (Oxford University Press, Oxford/New York 2001), p. 218. For example, Legality of Use of Force (Yugoslavia v. United States of America) in 1999, Legality of Use of Force (Yugoslavia v. Spain) in 1999, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Yugoslavia) in 1999, Maritime Delimitation in the Black Sea (Romania v. Ukraine) in 2004. R. Jennings. ‘The Proper Work and Purposes of the ICJ’ in A. S. Muller (ed.) The International Court of Justice: Its Future Role After Fifty Years (Martinus Nijihoﬀ Publishers, The Hague 1997), pp. 33–45. ICJ Press Release, at [15 Feb. 2008]. The decisions, pleadings, and basic documents of the International Court of Justice are available at [4 Apr. 2008].

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Southeast Asian Nations since the Temple of Preah Vihear case.174 Although it is too early to predict that the political decision by Indonesia and Malaysia to use judicial settlement will start a regional trend, it is to be hoped that the Court’s assessment of the parties’ arguments and its clear and virtually unanimous decision will induce other Asian states that are unable to resolve similar small-island problems through negotiation to submit their disputes to compulsory dispute settlement.175

2.5 Some Tendencies Concerning International Dispute Resolution Mechanisms In general, formalizing dispute settlement is consistently the mainstream of the mechanisms of international dispute settlement. This trend got underway in 1899, the year in which states adopted the Hague Convention on the Paciﬁc Settlement of Disputes.176 It has become particularly noticeable since the early 1990s with the Cold War obstacles to cooperation among states diminishing and the pressing demands of globalization. This trend was preceded by the development of the dispute settlement system of the 1982 Convention on the Law of the Sea, the WTO and the Organization on Security and Co-operation in Europe (OSCE). Under such a settlement system, negotiations are employed in combination with other dispute-resolving techniques – conciliation, arbitration and adjudication. The 1982 UNCLOS deploys a variety of techniques in an innovative and imaginative way to deal with diverse types of disputes that may arise.177 Primarily in Part XV the Convention establishes the dispute settlement system with respect to the interpretation and application of its provisions.178 It encourages parties to settle their disputes by the means of their mutual choice, including negotiations and voluntary conciliation.179 If the diplomatic eﬀorts fail, the compulsory binding dispute settlement system becomes operative. The Convention allows the parties, when signing, ratifying or acceding to it, to choose one or more of three diﬀerent dispute settlement forums, and a fourth for certain subjects:180 (1) the Tribunal for the Law of the Sea,181 (2) the

174

175 176 177 178 179 180 181

D. A. Colson. ‘International Decision: Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia)’ 97 (2) AJIL (2003), p. 406. Ibid., p. 406. ‘Symposium: The Hague Peace Conference’ 94 AJIL (2000), p. 1. J. G. Merrills, op. cit. (2005), pp. 182–210. UNCLOS, Arts. 186–91, 279–99 and Anns. V–VIII. Ibid., Arts. 279–85. Ibid., Art. 287. Ibid., Ann. VI, Art. 2.

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International Court of Justice, (3) arbitration,182 and (4) special arbitration (for disputes involving ﬁsheries, the marine environment, marine scientiﬁc research and navigation).183 If the disputants prefer the same procedure for the settlement of the dispute, it may be submitted only to that procedure, unless the parties otherwise agree.184 If they do not prefer the same procedure, then arbitration automatically becomes the compulsory dispute settlement mechanism.185 (Note: the parties are allowed to make some reservations to the compulsory dispute settlement provided in section 2.)186 A special chamber of the Tribunal for the Law of the Sea is also available for disputes regarding deep seabed mining.187 All of these procedures are compulsory and the results are binding on the parties.188 Under WTO, the members have agreed to use the multilateral system for settling their WTO trade disputes rather than using unilateral action, which is more aﬃliated to power. That means settling disputes in compliance with the agreed procedures rather than taking the law into their own hands. To prevent disputes from developing out of control, the WTO Dispute Settlement Understanding (DSU) mandates the compulsive use of a multilateral system of dispute settlement as institutionalized mechanisms under the WTO Agreement.189 This applies to the cases in which a member believes that another member infringes the WTO Agreement. Guided by this institutionalized system under WTO, a member cannot take action based on unilateral determinations. It may only act after recourse to dispute settlement under the rules and procedures of the DSU. Whatever actions the complaining member takes, it may only take them based on the ﬁndings of an adopted panel or Appellate Body report or arbitration award.190 The Member concerned must also respect the procedures foreseen in the DSU for the determination of the time-period for implementation and impose countermeasures only on the basis of an authorization by the Dispute Settlement Body (DSB).191 This excludes uncooperative unilateral actions and increases the possibility of dispute settlement.

182 183

184 185 186 187

188 189 190 191

Ibid., Ann. VII. Ibid., Ann. VIII. A list of experts in these ﬁelds is to be maintained for this alternative. Ibid., Art. 2. UNCOLOS, Art. 287 (4). UNCOLOS, Art. 287 (5). UNCLOS, Art. 298. UNCLOS, Arts. 186–91, 288, para. 3, and Ann. VI. Commercial arbitration is also available for certain deep seabed mining disputes. Ibid., Art. 188, para. 2. Ibid., Art. 296. Art. 23.1 of the DSU. Art. 23.2 of the DSU. Ibid.

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The UN Charter also encourages recourse to regional arrangements to achieve the objective of settling disputes by peaceful means. Article 52 of the UN Charter provides that nothing in the Charter precludes the existence of regional arrangements or agencies for dealing with international peace and security of a regional nature. In recent years, some regions have established institutionalized mechanisms for dispute settlement. The Conference (now Organization) on Security and Cooperation in Europe (OSCE) is a good illustration.192 Another prominent tendency is the so-called “judicial negotiation.” With its ﬂexibility, negotiation has been assimilated by the judicial methods. One important concept is “judicial negotiation”. This concept is applicable under the ICAO Council Rules for the Settlement of Diﬀerences.193 It requires the council to initiate, and encourage or actively direct a negotiated settlement between the disputants, as an integral part of its essentially adjudicatory role under chapter XVIII of the Chicago Convention of 1944,194 rather than a complimentary part. This negotiation may be undertaken at any stage of the proceedings at the parties’ discretions by only satisfying the requirement of being prior to the meeting at which the ﬁnal decision is to be rendered. We can ﬁnd some examples supporting judicial negotiation in the practice of the ICJ. In the Aegean Sea Continental Shelf case,195 the court rejected any suggestion that the existence of active negotiations constituted a legal impediment to the exercise of jurisdiction.196 In the separate opinion, Vice-President Judge Nagendra Singh said, “there can be no question, therefore, of the incompatibility of negotiates with judicial settlement at any stage in the course of the dispute.”197 The adjudication may terminate if the negotiations succeed. In the Fisheries Jurisdiction (UK v Iceland) case,198 the International Court observed, “The obligation to negotiation thus ﬂows from the very nature of the respective rights of the Parties; to direct them to negotiate is therefore a proper exercise of the judicial functions in this case. This also corresponds to the Principles and provisions of the Charter of the United Nations concerning peaceful settlement of disputes.”199

192 193 194

195 196 197 198 199

J. Collier and V. Lowe. op. cit. (1999), p. 40. Rules for the Settlement of Diﬀerences. 2nd ed. ICAO Doc. 7782/2 (1975). The Convention on International Civil Aviation, Chicago, 7 December 1944 in the United States, Department of State, Proceedings of the International Civil Aviation Conference, Chicago, Illinois 1944, Publication No. 2820, 2 volumes, Washington (1978). ICJ Reports 1978, p. 3. Ibid., p. 3. The separate opinion of Vice-President Judge Nagendra Singh, p. 48. ICJ Reports 1974, p. 3. Ibid., p. 32, para. 74.

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In the Trial of Pakistani Prisoners of War (Pakistan v. India), the Court suggested that the judicial role is simply an alternative to direct and friendly settlement through negotiations and the Court tries to facilitate such direct and friendly settlements as far as it is compatible with their statute.200 Judicial negotiation is not an independent method of resolving disputes but remains supplementary to adjudication. This application might encourage states’ recourse to the ICJ if its procedures would be clearly clariﬁed. The above tendencies, although some of them are reﬂected in economic area, have some implications to the general framework for settlement of interstate territorial and boundary disputes. The employment of the dispute settlement techniques in combination and the application of judicial negotiations imply the importance of the exhaustion of negotiations in the settlement framework. Thus, in order to settle such sensitive disputes as territorial and boundary disputes, the disputants should be given enough chances to negotiate based on international law, especially on the rules and principles elaborated by international courts and tribunals. Suﬃcient legal arguments are necessary for the parties to build up their conﬁdence in achieving a ﬁnal and satisfactory settlement based on international law.

200

ICJ Reports (1973), p. 347.

Part II Speciﬁc Features of China’s Approach to International Law and Dispute Resolution Mechanisms

Chapter 3 China’s Approach to International Law The fact that the PRC failed to settle all its territorial and boundary disputes in the past 58 years is a prominent disappointing feature of its history.1 The reasons for the failure may be manifold, but it seems that its attitude towards international law, and especially its attitude towards the proper role of international law in settlement of territorial and boundary disputes, is of some relevance to the issue. Meanwhile, some changes as the result of China’s Open Door Policy have positive implications for China’s new attitude.

3.1 3.1.1

Problems The Continuity of the Traditional Concepts – Li and Fa

In order to understand China’s present approach to international law, it is necessary to examine its classical conception of the social system. The three-thousand-year-old conception is still eﬀective and operative at the subconscious level in China. Some three thousand years ago, two philosophical concepts were developed and established in China. One is Li (Confucianism) and the other is Fa (Legalism). Some scholars compare Li and Fa to Natural Law and Positive Law respectively.2 Nonetheless, no proper English equivalent covers all of the features of Li and Fa. Li and Fa are the two basic concepts the Chinese have created to understand the diversiﬁed social phenomena in their society. Li refers to the use of moral rules to regulate individual behaviour in accordance with natural law. As far as an individual in a society is concerned, Li includes all aspects of behaviour and social position ranging from politeness and propriety to

1

2

Since 1949 when People’s Republic of China was founded, China has involved in several bloody wars, most of which were caused by territorial and boundary disputes with its neighbouring states. For example, the Sino-Indian war in1962, the Sino-Russian Border war in 1969 and the SinoVietnam wars in 1979 and 1988. H. I. Kim. Fundamental, Legal, Concepts of China and the West: A Comparative Study (Kennikat Press, New York/London 1981); D. Bodde. ‘Evidence for “Laws of Nature” in Chinese Thought’ 20 Harv. J. Asiatic Stud. (1975), p. 709.

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social status. Li establishes unequal relations between people. Based on Li, people should know who is the master and who the servant, who is the elder and who the younger, who is the guest and who the host and behave accordingly. Li suggests to people their unequal duties and rights when they stay together. Li tries to make people internalise the unequal formalised behaviour so that personal desires and cultivation can be properly socialized. Confucius argues that under law, external authorities administer punishments after illegal actions, so people generally behave well without understanding the reasons why they should; whereas under Li, patterns of behaviour are supposed to be internalised and to exert their inﬂuence before actions are taken, so that people behave properly because they fear shame and want to avoid losing face.3 Fa, which is often comparable to “legalism” or “law”, is traditionally diﬀerent from the western concept of law. In ancient China, “law” referred exclusively to criminal law. Any perpetrator should be punished severely as a criminal. So law, to some extent, equaled punishment, and commoners accordingly feared the law and the legal institutions. The only thing people knew was that if they violated the imperial law they would be punished; but they never had a sense that they might use the law to protect their civil interests. This is the way in which “law” in the absence of a sense of civil rights protection was perceived by commoners for more than two thousand years. Anything related to law such as courts was only assumed to deter potential evildoers instead of aiming at the good,4 which was described in the well-known proverb: “Law is meant for a base person but not for a gentleman.”5 Generally, law in Chinese traditional comprehension is an instrument for dominance and not for the protection of natural rights. This traditional conception just saw the sign of change in 1979. Li is persuasive, preventive and enforced by social sanction, while Fa is compulsive, punitive and enforced by legal sanction. Both normative concepts have helped maintain social order and stability. But as far as the traditional relationship between Li and Fa is concerned, the conclusion drawn from the Chinese past legal practice is that Li was believed to be more eﬀective and positive in function than Fa and that Li ranked above Fa in importance. As a result, in ancient China, many

3

4

5

Analects of Confucius, one of the core texts of Confucianism, states in Part II (3): “If the people be led by laws, and uniformity sought to be given them by punishments, they will try to avoid the punishment, but have no sense of shame. If they be led by virtue, and uniformity sought to be given them by the rules of propriety, they will have the sense of shame, and moreover will become good.” The English version of Analects of Confucius is available at [20 Feb. 2008]. Z. Liang. ‘The Past, the Present and the Future of Chinese Law: A Critical Retrospect of a Kind of Culture’ Study of Comparative Law (1987 June), pp. 17, 19–20. The Chinese version is: 法备小人, 不防君子 (Fa bei xiao ren, bu fang jun zi).

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criminal and civil cases were decided in accordance with Li rather than Fa.6 Li was shrined as creating and maintaining a harmonious relationship while Fa was degraded as disrupting harmony. Fa which is not grown out of Li can never be a real law. Fa just functions as a supplement to Li. According to Li, the hierarchical structure in a civil society is built on ﬁve natural status relationships: father and son; ruler and subject; husband and wife; elder and younger brother; and the relationship between friends.7 The lower part should obey the higher part. Before China was forced by western powers to open its doors in the 1840’s,8 the international Li in the Chinese perception was that China was the centre of the world. The basic assumption of the Chinese perspective of the world was that the international order should be based on China’s cultural superiority. Therefore, the relations between China and its neighbours were thought to be similar to the ones between father and son, husband and wife, and king and subject, which contained anything but the concept of sovereign equality and independence. The tribute system which China set up for its neighbouring countries typically expressed its old concept of intrastate relationship. Thus, when modern international law based on the concept of sovereign equality and independence was introduced to China, it was completely astonished.9 In short, the traditional international Li held by the Chinese was a hierarchical and anti-egalitarian Sinocentric world order which rested on moral virtue:10

6

7

8

9

10

For example, a civil case in ancient China can illustrate this practice. In the Qing Dynasty, a widow had a dispute with her deceased husband’s cousin, Mr. Sun, over the ownership of a piece of land. After a lawsuit had been brought to the county magistrate, six relatives and friends volunteered to serve as conciliators. The conciliators and disputing parties examined the deeds of the land. They concluded the widow’s late husband had mortgaged the disputed land to Mr. Sun. The late husband had never been able to repay the loan. As a result, Mr. Sun took over the land. The conciliators decided that Mr. Sun had the title to the property, but stated that, as uncle of his deceased cousin’s children, Mr. Sun had a moral duty to look after the widow and her children. In the end, Mr. Sun agreed to transfer the title of the land to the widow. The conciliators reported the result to the county magistrate and requested the suspension of the lawsuit. The Magistrate immediately approved the request. See Y. Shen. Resolution of Disputes between Foreign Banks and Chinese Sovereign Borrowers: Public and Private International Law Aspects (Kluwer Law International, 2001), p. 13. In this theory, the subject should obey the ruler; the younger should obey the elder; the female should obey the male. The ﬁrst Opium War (1840–42) was the starting point for Imperial China to lose its former predominant status in its history. T. Wang. ‘International Law in China: Historical and Contemporary Perspectives’ The Chinese Yearbook of International Law (1991), pp. 21–47. Z. Li. ‘Teaching, Research, and the Dissemination of International Law in China: The Contribution of Wang Tieya’ 31 Can. Y. B. Int’l L. (1993), p. 210. See also T. Wang, op. cit. (1991), pp. 13–21. The legitimacy of the hierarchical and anti-egalitarian Sinocentric world order rested more on moral virtue than military power. In other words, the concept of the universal state ruled by the

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mankind should be governed by one ruler in accordance with a set of universally accepted principles.11 But since the 1840’s, as the defeated party in a series of wars with the west, it was China that was treated as an “uncivilized state” by the western powers and gradually fell into the semi-colonized position.12 Western powers destroyed its international Li. In new China,13 international law is also viewed through cultural spectacles. The late Professor Wang Tieya, one of the most distinguished international law scholars and lawyers, advocated an authoritative view of international law, which has been dominating China’s theory and practice. In his theory, international law should be treated as a unique legal system which should never be confused with domestic law, although a kind of interactive and supplementary relationship between these two diﬀerent legal systems exists. International law and domestic law can supplement each other but cannot replace each other.14 Consequently, the Chinese government and its international lawyers believe that there should be some kind of “international Li” existing as the basis for international law.15 According to Confucianism, obedience to Li will improve the public order and social relationships. In the Chinese view, the priority for international society is to construct a so-called “international Li”. Actually China has been searching for the “international Li” ever since it began to understand international law. What is “international Li”? Who is the “father” and who is the “son” in the international society? When China realizes that the “international Li” is still in the process of formation and that she is living in a world without a father, it naturally regards the

11

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Chinese Emperor with a cosmic virtue was richer in cultural symbolism than in political dynamics. See generally Z. Li. ‘Traditional Chinese World Order’ 1 Chinese J. Int’l L. (2002), pp. 32–35. This concept is well expressed in the Chinese saying that “there is only one sun in the sky and one sovereign over mankind.” See S. Leng. ‘Chinese Law’ in A. Larson and C. W. Jeanks (eds.) Sovereignty within The Law (Oceana Publications, 1965), p. 247. T. Wang, op. cit. (1991), pp. 31–47. It refers to the People’s Republic of China, which was founded in 1949. On the question of the relationship between international law and municipal law, Wang Tieya and Wei Min, two leading experts in international law, describe like this: “International law and municipal law are two systems of law or one may say that international law is a special system of law which is diﬀerent from domestic law. . . . However, because municipal law is enacted by states and international law is enacted through the participation of states, there are close connections between these two systems-mutual inﬁltration and mutual supplementation. See T. Wang and M. Wei. (eds.) International Law (Law Press, Beijing 1981), p. 44. The Chinese believe that in the domestic society, there exist both Li and Fa which function simultaneously for a peaceful and orderly society, named as a harmonious society.

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world as being in a state of anarchy,16 and the “international law” that has not grown out of “international Li” is no “real law”. Consequently, it intends to denounce all the international rules that are thought to be against the third world, to which it thinks it belongs, and to summon its fellow countries to create new international rules.17 The new rules have inherent connections with the current Chinese ideology and policy. As a result, China’s foreign policy plays the role of “international Li”, at least as a temporal replacement. Nowadays, in China, international law is also modiﬁed by the words “Chinese characteristics”,18 only because China doubts the existence of international Li in the international domain. According to traditional Chinese ideology, without Li , there is no way in which a society can be a harmonious one or one ruled by real law.19 Thus, Fa in the international society is often regarded as an temporary expedient instead of a permanent institution. Although China established a judicial system very early in history, the prevalence of Li encouraged the disputants to resolve their diﬀerences by dialogue rather than by adjudication. The Confucian conception of minimum order is characterized by disappearance of litigation.20 According to Confucianism, the minimum social order shouldn’t be achieved by submitting disputes to an appropriate decisionmaker, such as a judge. It calls for disappearance of litigation, and instead promotes knowledge of virtue throughout the world. In the Confucian ideal world, a selfperfected person knows the diﬀerence between right and wrong. If his claim is spurious or questionable, he will feel too ashamed to raise it.21 As Confucius put it, “[I]f the people be led by laws, and uniformity is sought to be given to them by punishment, they will try to avoid the punishment, but have no sense of shame. If they be led by virtue, and uniformity is sought to be given to them by the rules of Li, they will have the sense of shame, and moreover will become good.”22 Although Confucius felt conﬁdent that he could try lawsuits as well as anyone else,

16

17 18

19

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21 22

Z. Yang. ‘A Probe into the Relationship between International Order and State Sovereignty’ 6 Falü kexue (Science of Law) (2004), p. 80. See generally T. Wang, op. cit. (1991), pp. 1–115. At the inaugural meeting of the Chinese Society of International Law in February 1980, Huan Xiang, President of the Society, called for a progressive development of New China’s own theory and system of international law guided by Marxism-Leninism and Mao Zedong Thought that integrates China’s international practice. See Chinese Yearbook of International Law (1982), p. 306. The Confucian concept of Li involves the use of moral rules to regulate behaviour with the universe. See Creel. ‘Legal Institutions and Procedures during the Chou Dynasty’ in J. Cohen, R. R. Edwards and F.-M. C. Chen (eds.) Essay on China’s Legal Tradition (Princeton University Press, 1980), pp. 38–39. The Confucian conception of minimum order has three core ideas: (1) absence of unauthorized coercion or violence; (2) disappearance of litigation; and (3) authorized use of force. F. T.-s. Chen. ‘The Confucian View of World Order’ 1 Ind. Int’l & Comp. L. Rev. (1991), p. 57. Confucian Analects, Bk. II, Ch. III.

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he still gave preference to the idea that “what is necessary is to cause the people not to litigate.”23 The traditional Chinese preference for consultation, mediation and conciliation over formal methods of dispute resolution has its origins in the Confucian philosophy, which views social conﬂicts as shameful aberrations from Li, that is, from the natural order of social life. In Chinese, court ( fayuan) originally means a place to conduct a severe punishment instead of place to seek justice. Historically, the Chinese had very painful experience with the rule of law and the courts. In ancient China, law referred exclusively to criminal law. The word “court” was closely associated with punishing criminals in a harsh way. In addition, the painful experience was strengthened by the principle of collective responsibility, under which the criminal’s family was also subject to punishment by exile, enslavement, or castration.24 The practice of using the courts mainly for punishment continued in Mao’s time (1949–1976). Based on such a distorted legal culture, it was common to regard adjudication as a kind of shame and a loss of face. There are many vivid Chinese proverbs related to the general aversion to adjudication, such as “in death avoid hell, in life avoid the law courts,” “to enter a court of law is to enter a tiger’s mouth,” and “it is better to die of starvation than to be a thief; it is better to be vexed to death than to bring a lawsuit,” etc.25 Even if modern Chinese have some trust in courts and judges, they still give preference to more informal methods of dispute resolution. Although China is now undergoing massive legal modernization, the traditional culture still persists and aversion to law, especially the law that lacks the support of Li, operates at a subconscious level. Therefore, promoting Fa to be raised to a position higher than Li in the people’s subconsciousness is comparable to an ideological revolution for the Chinese people. China, in many ways, is being challenged by itself. 3.1.2

The Chinese Pragmatic Approach to International Law

At the very beginning, China’s approach to international law was characterized particularly by pragmatism. In 1864, William A. P. Martin, an American missionary and Sinologist, introduced international law to China by his translation

23

24

25

Chapter IV of GREAT LEARNING (Da Xue), one of the Four Books which were selected as a foundational introduction to Confucianism, Commentary. See also F. T.-s. Chen. ‘The Confucian View of World Order’ 1 Ind. Int’l & Comp. L. Rev. (1991), p. 58. J. Waley-Cohen. ‘Collective Responsibility in Qing Criminal Law’ in K. G. Turner, J. V. Feinerman and R. K. Guy (eds.) The Limits of the Rule of Law in China (University of Washington Press, Seattle/London 2000), pp. 112–31. See generally P. Chen. Law and Justice: The Legal System in China 2400 B.C.–1960 A.D. (Dunellen Pub. Co., New York/London 1973). See also R. Nafziger and R. Jiafang. ‘Chinese Methods of Resolving International Trade, Investment, and Maritime Disputes’ 23 Willamette L. Rev. (1987), p. 624.

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of Henry Wheaton’s Elements of International Law. Only after being convinced that international law was useful for preventing diplomatic conﬂict from turning into something more serious did the Qing government approve the publication and distribution of Martin’s translations.26 It was during the Chinese struggle to shake oﬀ the yoke of foreign domination in China and in order to win China a respected place as a sovereign equal in the family of nations that the importance of international law was gradually realized. International law was treated as an instrument to deal with the western powers.27 This ﬁrst impression has deeply inﬂuenced China’s attitude to international law. Shortly after the founding of the PRC, owing to the diﬀerent ideology, the Chinese Communist Party (hereinafter the CCP) labeled international law as a bourgeois product and treated it with disrespect in many circumstances. Generally, the PRC respected international law whenever it was to the Chinese government’s advantage, and ignored it when it appeared to be detrimental to the government’s interests. At that time, even the acknowledgement of the existence of international law, in the Chinese view, did not indicate that the PRC had accepted the so-called “western international law”. Many diﬀerences existed between China and the West. As one Chinese international law expert described international law in 1958, “international law is one of the instruments for resolving international problems. If this instrument is useful to our country, to the socialist cause or to the cause of the peoples of the world, we will use it. However, if this instrument is disadvantageous to these causes, we will not use it and should create a new instrument to replace it.”28 In 1978, when the CCP decided to open China to the west and to shift the work priority from class struggle to economic development, international law accordingly got a new role to play – fostering economic development. From then on, international law has been regarded as an eﬀective method to integrate China into the international society to economic beneﬁt.29 The words that best describe the Chinese pragmatism are: “all should start from actuality.” “Actuality” has such a vague meaning that it can be regarded as a kind of justiﬁcation for any action, including the attitude towards law. The Chinese legal pragmatism is an approach for which it is characteristic to regard law as an outcome of actuality, and to treat law as a servant of policy.30 Therefore, international law is just an expression of foreign policy and has no independent status

26 27 28

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T. Wang, op. cit. (1991), pp. 1–115. Ibid. Z. Liru ‘Refuting Chen Tiqiang’s Absurd Theory of International Law’ Renmin ribao (People’s Daily) (Beijing 18 Sep. 1957), p. 3. H. Chiu. ‘Chinese Attitudes towards International Law in the Post-Mao Era, 1978–1987’ 21 International Lawyer (1987), p. 1128. X. Yu. ‘Legal Pragmatism in the People’s Republic of China’ in P. Keller (ed.) Chinese Law and Legal Theory (Ashgate Publishing Limited, England 2001), pp. 71–2.

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at all. Since 1978, the “actuality” has been the need for economic development. Consequently, international law serves the country’s economic development. As one Chinese international law scholar has written, “contemporary international law, as far as our country is concerned, is an indispensable means to realize socialist modernization and construction.”31 In 1981, Professor Wang Tieya deﬁned international law as “the sum total of principles, rules, regulations and systems which are binding and which mainly regulate interstate relations.”32 He explained that “while states are subject to the binding force of international law, they are also the makers of international law. Therefore, the basis for the legal eﬀect of international law can only be attributed to states themselves, that is, the will of states.”33 He emphasized that such will is not the arbitrary will of a single state, nor does it refer to the “common will” of states, but rather is an agreement between the will of various states.34 His theory about international law represents the Chinese academic authority. According to his theory, international law is expressive of the “reconciled will” of states instead of the “common will”. What is the “reconciled will”? What is the diﬀerence between the “reconciled will” and the “common will”? In China, no one has given good answers to these basic questions. From Wang’s emphasis on the interaction between international law and international relations in his teaching and research in international law, it seems that the “reconciled will” refers to the result of interstate struggle during the complicated international relations. In his words, international law is not only a branch of legal science but also an oﬀspring of international relations.35 Thus, international law keeps changing with the development of international relations.36 His theory suggests that international relations dominate international law and states’ practice. How states settle their disputes, in fact, depends on the international relations, which are political in nature. His theory suggests that international lawyers work rather as international relations scholars, who are likely to give international law a negative assessment.37 No one denies the fact that states try to justify their actions by international law while implementing their foreign policy, but it is unacceptable to degrade international law to a state’s foreign policy. Actually, international law provides a

31

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L. Fengming. Xiandai guoji fa gangyao (Essentials of Modern International Law) (Mass Press, Beijing 1982), p. 5. T. Wang and M. Wei. (eds.) International Law (Law Press, Beijing 1981), p. 1. Z. Li, op. cit. (1993), p. 206. Ibid. Ibid., p. 193. Ibid. O. Yasuaki. ‘International Law in and with International Politics: The Functions of International Law in International Society’ 14 (1) EJIL (2003), pp. 109–113.

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framework within which international politics works.38 Even though international law has many uncertainties, nations generally agree upon a basic set of rules, which provide a basis for the practice of international relations. As Judge Jessup said, “the function of international law is to provide a legal basis for the orderly management of international relations.”39 The Chinese pragmatic approach neglects the importance of the stability created out of lasting rules and principles and will undercut the goal of constructing a stable and law-ruled international society. Even Deng Xiaoping, the late Chinese President, admitted that the Chinese approach was constantly shifting with the changing views of the Chinese leaders.40 International law should not be treated by pragmatists as an instrument cloaked with a mantle of “legality” to achieve the suppression of the weak by the strong and the eating of the small ﬁsh by the big ﬁsh. If China really wants to integrate itself into the international community and settle its territorial and boundary disputes in a peaceful way, it should respect the existing international rules and principles and use them as the basis for negotiations with its neighbours. A pragmatic approach in a legal sense does not mean to do and say what seems expedient in any given ten-minute time frame. On the contrary, it should work for the future. It should be a kind of rule-based pragmatism that progressively challenges legal solutions while not overrunning the common-sense tradition that they represent.41 International law does not provide a strict hierarchy of claims to certain ownership titles. Therefore, each case will have to be assessed on a case-by-case basis.42 An appropriate legal pragmatism helps us to resist dogmatism in all its forms, particularly in the sensitive cases concerning territorial interests. It allows international law to mediate among states and their interests, but it never means the complete replacement of international law by a state’s expedient policy. 3.1.3

Sovereignty – China’s Perforated Shield

Implicit in the concept of sovereignty is the notion of territory.43 Sovereignty, in the Chinese view, is the central point of all international legal principles and

38 39 40

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L. Henkin. How Nations Behave (Columbia University Press, New York 1979), p. 18. J. Jessup. A Modern Law of Nations (Macmillan, New York 1948), p. 20. X. Deng. Selected Works of Deng Xiaoping (1975–1982) (People’s Publishing House, Beijing 1983), pp. 136–37. C. P. Wells. ‘Why Pragmatism Works For Me’ 74 S. Cal. L. Rev. (2000–2001), p. 354. S. Lee. ‘Territorial Disputes among Japan, China and Taiwan Concerning the Senkaku Islands’ 3 (7) Boundary & Territory Brieﬁng (2002), p. 24. D. W. Lee. ‘Hong Kong 1982–1984: Irredentism in the Chinese Practice of International Law’ 1 Int’l Legal Persp. (1987–1988), p. 12.

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norms44 and serves as the cornerstone of settlement of disputes, observance of treaties, special privileges and immunities in foreign relations. In China, Professor Zhou Gengsheng gave his authoritative deﬁnition of sovereignty in such a way: state sovereignty refers to the state’s absolute supremacy over its internal aﬀairs and external aﬀairs. In his analysis, state sovereignty contains two features: autonomy in tackling its internal aﬀairs and independence in handling its external aﬀairs. He particularly emphasized that absolute independence from any external interference is the core of sovereignty.45 China believes that, because states create international law when they exercise their sovereignty, the validity and eﬀectiveness of international law cannot forgo the continuing consent and support of nation-states.46 State sovereignty is the very foundation upon which international law rests. State sovereignty should be treated as a whole and cannot be cut down to pieces and treated in complete isolation. State sovereignty implies at least the following corollaries: (1) sovereign equality; (2) political independence; (3) territorial integrity; (4) exclusive jurisdiction over a territory and the permanent population therein; (5) freedom from external intervention and the corresponding duty of non-intervention in areas of exclusive domestic jurisdiction of other States; (6) freedom to choose political, economic, social and cultural systems; and, (7) dependence of obligations arising from international law and treaties on the consent of States.47 Among these corollaries, China regards the prohibition of interference and intervention as the most important one.48 China holds the view that every state inherently enjoys an absolute, indivisible and perpetual sovereignty, and its state sovereignty can only be limited by international law, and that international law should be created by all independent states, including both the developed and developing states. Obviously, China stresses what international law should be instead of what it is. The “Five Principles of Peaceful Co-existence”49 advocated consistently by China emphasize that states should show mutual respect for each other’s sovereignty.

44

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47 48 49

W. Levi. Contemporary International Law (Westview Press, Boulder/San Francisco/Oxford 1991), p. 81. G. Zhou. International Law Vol. 1 (The Commercial Press, Beijing 1976), p. 75. J. Shen. ‘National Sovereignty and Human Rights in a Positive Law Context’ 26 Brook. J. Int’ I L. (2000–2001), p. 419. Ibid., pp. 419–20. Ibid., p. 420. The Five Principles of Peaceful Co-existence consist of: (1) mutual respect for sovereignty and territorial integrity; (2) mutual nonaggression; (3) mutual noninterference in internal aﬀairs; (4) equality and mutual beneﬁt; and (5) peaceful co-existence. They are regarded as China’s most signiﬁcant contribution to the progressive development of contemporary international law. For detailed discussion, see S. S. Kim. ‘The Development of International Law in Post-Mao China: Change and Continuity’ 1 J. Chinese L. (1987), pp. 117–60.

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Whether the words “mutual respect” imply a theory of absolute sovereignty or of relative sovereignty is not clear. In its oﬃcial documents, China has repeatedly emphasized that its sovereignty is absolute, indivisible and perpetual and that it will never tolerate any violation of its sovereignty. These words are the reminder of the “absolute sovereignty” theory. Such an attitude was also reﬂected in the case of Jackson v. the People’s Republic of China (the Huguang Railway Bonds).50 An American citizen named Russell Jackson, the holder of the bonds, instituted the case against China based on the fact the Railway bonds issued in the early 20th century by the previous Chinese government were not honoured by the then-present one. The case was ﬁrst decided in 1982 by an American court. The court issued notice to the Chinese government through its embassy in the USA. The Chinese government refused to appear before the court based on the principle of absolute State immunity. The brief ﬁled by China’s American counsel suggests that China regards the principle of absolute sovereign immunity as fundamental to its sovereignty. From the Chinese government’s point of view, the absolute immunity theory derived from the principle of the international law of State sovereignty.51 In 1992, when UN Secretary-General Boutros Boutros-Ghali issued a report stating that “the time of absolute and exclusive sovereignty . . . has passed; its theory was never matched by reality”, China took the most skeptical stance of all states toward the report.52 China gave this public opposition because Ghali’s report contained too many sovereignty-diluting features.53 But in practice, China has never strictly kept in line with the theory of “absolute sovereignty”. Although China shows an ambiguous attitude to the established customary law, it accepts the principle that state sovereignty is subject to the limitation of treaty obligations.54 It even negotiated the border agreements with Burma, Russia, Kazakhstan and Kyrgyzstan based on the so-called “unequal treaties.” (In the Chinese oﬃcial documents, China declares all the “unequal treaties” null and void because those treaties violate China’s sovereignty.) On 14 December 1981, China for the ﬁrst time voted for the extension of the UN peacekeeping force staying in 50

51

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53 54

T. Cheng. ‘Huguang Bond Case and the Question of State Sovereign Immunity’ 6 World Knowledge (Shijie zhishi) (1983), p. 2; F. Zhu. ‘U.S. Court Violates International Law’ Beijing Review (14 Mar. 1983), pp. 24–30; D. Liu. ‘The Odious Nature of the Huguang Railway Loans’ 1 Study of International Problems (Guji wenti yanjiu) (1984), p. 57; Q. Zhu. ‘Criticizing the Huguang Bond Case’ 11 Democracy and Legal System (Minzhu yu fazhi) (1984), p. 12. Wang. ‘China’s Attitude towards State Immunity – An Eastern Approach’ in N. Ando (ed.) Japan and International Law: Past, Present and Future (Kluwer Academic Publishers Group, 1999), p. 163. S. S. Kim. ‘China and the United Nations’ in E. Economy and M. Oksenberg (eds.) China Joins the World: Progress and Prospects (Council on Foreign Relations Press, New York 1999), p. 52. Ibid. T. Wang, op. cit. (1991), pp. 69–70.

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Cyprus. From then on, China has actively supported the UN peacekeeping activities and got involved itself.55 These involvements also speak against China’s theory about absolute sovereignty and non-intervention. The ambiguous meaning of sovereignty permits states to interpret the concept expediently to serve their various purposes while simultaneously catering for their nationalism.56 China tries to hold up its wieldy shield of “absolute sovereignty” for its political purposes, although the shield has already been perforated. China’s faithful adherence to declaring the principle of inviolability of state sovereignty has become a distinctive feature of the Chinese attitude towards international law.57 This attitude has its own historical origin. As late as the 1920’s, China was not treated as a fully sovereign state by the Western powers.58 The powers that participated in the Washington Conference (1921–22) refused to renegotiate the tariﬀ provisions of earlier treaties on the grounds that the Chinese lacked the essential characteristics of a modern state, and were reluctant to accord China the rights of a fully sovereign state.59 It was not until the early 1930s that the Nationalist government succeeded in gaining tariﬀ autonomy, and another decade passed before the treaties of 1943 brought a formal end to extra-territoriality in China and promised recognition of the Chinese government’s sovereignty. Even after the Communists took power in October 1949, the Western powers still challenged some of China’s sovereign rights by refusing to recognize the People’s Republic of China.60 To China, sovereignty is really a hard-won shield in the struggle to get rid of foreign domination and to protect itself from foreign expansion and aggression.61 During the Cold War, China used sovereignty as its shield for maintaining its independence disregarding its being isolated from the international community.

55 56

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58

59 60

61

S. S. Kim, op. cit. (1999), pp. 53–4. W. Levi. Contemporary International Law (Westview Press, Boulder/San Francisco/Oxford 1991), p. 81. Z. Li. ‘Legacy of Modern Chinese History: Its Relevance to the Chinese Perspective of the Contemporary International Legal Order’ Singapore Journal of International & Comparative Law (2001), p. 318. See also S. S. Kim. ‘Sovereignty in the Chinese Image of World Order’ in R. S. J. Macdonald (ed.) Essays in Honour of Wang Tieya (M. Nijhoﬀ, Dordrecht/Boston 1994), p. 428. K. u. Meng. ‘A Criticism of the Theories of Capitalist International Law on International Entities and the Recognition of States’ (2) Study of International Aﬀairs (3 Feb. 1960), p. 45. 2 Foreign Rel. U.S. (1930), pp. 538, 539. The majority of the members of the United Nations held that the question of which government should represent China in the UN should be considered an “important question” requiring a 2/3 majority voter under Article 18 of the UN Charter. From the Chinese Communists’ viewpoint, such actions were related to American policy of support for the Chiang Kai-shek government, and were intended to challenge the Communists’ right to rule the Chinese people and to further isolate them from participation in international organizations and aﬀairs. People’s Republic of China did not assume its legal seat in the United Nations until 1971. T. Wang, op. cit. (1991), pp. 1–115.

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This experience enhanced China’s positive attitude to sovereignty while rejecting the notion of “world law” and keeping its territorial integrity. In the Chinese mind, the “world law” attitudes imply or serve to justify a number of objectionable principles, including: the denial or deprecation of state sovereignty, supremacy of international law over domestic law, giving individuals the status of subjects of international law, legalization of collective intervention, compulsory jurisdiction of the ICJ, and the abolition or limitation of the immunity of foreign states.62 Confronted with the issues of Taiwan, Tibet and Xinjiang, sovereignty becomes the most eﬀective weapon for China to keep its territorial integrity. More frequently, China invokes the sacrosanct principle of sovereignty in its eﬀorts to stop Taiwan from breaking away. Theoretically, China accepts the “absolute sovereignty” to defend itself against the unfettered expansionism of super powers. Practically, China oscillates between “absolute sovereignty” and “relative sovereignty”. China knows that the theory of “absolute sovereignty” might encourage states to disrespect each other’s sovereignty. Therefore, the choice of the words “mutual respect for sovereignty” in the Five Principles is the Chinese technique to avoid a deﬁnite stance on either of the two basic theories. On the one hand, China’s ambiguous attitude to sovereignty gives China the advantage of ﬂexibility in practice; on the other hand, such an attitude may impede its ability to resolve its territorial and boundary disputes on the basis of international law. Sovereignty, based on the Westphalian system, is one of the inherent fundamental rights of independent states, similar to a person’s right to live, and is thus diﬀerent from the rights entitled by authority or law. Therefore, sovereignty falls into a policy-ruled area rather than a law-ruled area. States are entitled to use whatever instruments they have, such as force, to defend their sovereignty. Territory has a natural connection with the concept of sovereignty. All the disputes concerning territorial interests involve state sovereignty and sovereignty integrity. As far as settlement of territorial and boundary disputes is concerned, the adoption of the “absolute sovereignty” theory, to some extent, is equivalent to replacing international law with a state’s policy. When sovereignty becomes absolute, policy inevitably prevails over law. This result completely deviates from the goal of creating a world ruled by law instead of a world ruled by power. In fact, the acceptance of the “relative sovereignty” theory has become the only choice for the states that really want to play the game of law, which itself is a kind of restriction on states’ behaviours. China’s ambiguous attitude towards sovereignty, or, more precisely speaking, to “relative sovereignty”, may make China sleep in the same bed with the west

62

S. Ogden. ‘Sovereignty and International Law: The Perspective of the People’s Republic of China’ 7 N.Y.U.J. Int’ I L. & Pol. (1974), p. 10.

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but dream a diﬀerent dream. That is to say, China may use the same principles of international law to obtain a diﬀerent goal. Such an ambiguity may become a negative factor in the process of peaceful settlement of its diﬃcult territorial and boundary disputes. Peaceful settlement requires states to recognize the reality of relative sovereignty and to stabilize the position of international law in their dispute resolution framework. 3.1.4

Attitude to the Sources of International Law

The sources of international law must be one of the elementary particles of the legal regime at the international level.63 Generally speaking, Article 38 (1) of the Statute of the International Court of Justice provides the most authoritative statement on the sources of international law in such a way:64 The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: (a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting States; (b) international custom, as evidence of a general practice accepted as law; (c) the general principles of law recognized by civilized nations; (d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualiﬁed publicists of the various nations, as subsidiary means for the determination of rules of law.

China’s diﬀerent interpretation to this provision may cause some problems in using international law to settle China’s territorial and boundary disputes. Although the answer to the question whether the sources enumerated in Art. 38(1) are hierarchical is in the negative,65 in practice, China puts the ﬁrst two primary sources in a hierarchical structure; that is to say, international treaties are followed by international custom (Chinese law uses a diﬀerent term for international custom. This will be discussed later). The Chinese constitutional law has

63 64

65

I. Brownlie. Principles of Public International Law (3 edn. Clarendon Press, Oxford 1979), p. 1. Ibid., p. 3. A strong tendency has emerged to regard Art. 38 as the deﬁnition of the formal sources of international law. This view is widely shared by State parties to the ICJ Statute, which include practically all countries in the world. The same view has also been endorsed by the ICJ. Moreover, in extra-judicial conﬂict situations governments often expressly refer to Art. 38 of the ICJ Statute. This trend is also reﬂected by the widespread recognition that the sources of law listed in Art. 38 of the ICJ Statute are at the same time sources of international law in general. See G. M. Danilenko. Law-Making in the International Community (Martinus Nijhoﬀ, Dordrecht/London 1993), pp. 34–6. J. O’Brein. International Law (Cavendish Publishing Limited, London 2001), p. 67. The matter was discussed in 1920 and an attempt to include the words ‘in the undermentioned order’ in Art 38 was rejected by the committee so that the Article in its ﬁnal form included no express reference to hierarchy.

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no explicit statute related to the hierarchical structure,66 but such a structure is a salient feature in many other Chinese laws. For example, Article 142 of General Principles of the Civil Law of the People’s Republic of China provides for: The application of law in civil relations with foreigners shall be determined by the provisions in this chapter. If any international treaty concluded or acceded to by the People’s Republic of China contains provisions diﬀering from those in the civil laws of the People’s Republic of China, the provisions of the international treaty shall apply, unless the provisions are ones on which the People’s Republic of China has announced reservations. International practice may be applied to matters for which neither the law of the People’s Republic of China nor any international treaty concluded or acceded to by the People’s Republic of China has any provisions.67

Other laws, such as the 1982 trademark law,68 the 1984 patent law,69 the 1985 law of succession,70 the 1986 ﬁshery law,71 the 1986 postal law,72 the 1986 administrative procedure law73 and the 1992 maritime law74 all have the same provisions. But bear in mind that the term of “international practice” is used instead of “international custom” in those Chinese laws. The term of “international custom” is not mentioned at all. What is meant by “international practice”? Does it refer to international custom or international usage or both? Actually, no legal interpretation has been given yet. It seems that “international practice” refers to, or at least includes “international custom”. Therefore, customary international law is inferior to international treaty in the Chinese legal hierarchy. Chinese law also implies that customary international law has not obtained a stable status in the Chinese legal system. The provision that “international practice may be applied to matters for which neither the law of the People’s Republic

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74

The 1982 Constitution of the PRC is silent on the status and validity of international law in Chinese municipal law. See M. Wei. ‘The New Constitution of Our Country and Principles of International Law’ (5) Law Magazine (1983), p. 16. General Principles of the Civil Law of the PRC, Art.142, at [24 Feb. 2008]. Trademark Law of the PRC, Art. 17, at [24 Feb. 2008]. Patent Law of the PRC, Art. 20, at [24 Feb. 2008]. Law of Succession of the PRC, Art. 36, at [24 Feb. 2008]. Fishery Act of the PRC, Art. 8, at [24 Feb. 2008]. Postal Law of the PRC, Art. 42, at [24 Feb. 2008]. Administrative Procedure Law of the PRC, Art. 72, at [24 Feb. 2008]. Maritime Law of the PRC, Art. 268, at [24 Feb. 2008].

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of China nor any international treaty concluded or acceded to by the People’s Republic of China has any provisions” shows that there are some circumstances in which China may unilaterally refuse to obey some customary international law if it considers the customary law to be inapplicable. China does not have much motivation to abide by those principles of customary international law that it considers as discriminatory, such as uti possidetis. Contemporary Chinese scholars and jurists explain that China does not exhibit a high degree of motivation to uphold customary international law just because customary international law was created and developed by the West and it was deprived of the chance to play a role in the process itself. China’s ﬂexible attitude to customary international law is also reﬂected in its past practice. During the 1950s and 1960s, when it was refused to enter most of international treaty regimes, China often resorted to some customary international laws for protection.75 From time to time, both Chinese oﬃcials and publicists invoked such norms as “the standards of international law and dignity and justice,” “the elementary rules of international law,” “international law and practice” and “an established pattern of conduct” in their assertions. However, since 1971 when it successfully regained its legal seat in the United Nations, China has seldom invoked customary international law and, instead, has begun to resort to certain General Assembly resolutions as the authoritative references for its multilateral diplomacy.76 China’s attitude to customary international law largely depends on the change of its position in the international legal order.77 With the increase of China’s power, Chinese international law experts began to defend their own interpretation of Article 38 (1) of the Statute of the ICJ. As a representative, Professor Wang Tieya said that the “evidence of a general practice accepted as law” can be created or found especially in the resolutions of the General Assembly.78 Professor Wang was particularly interested in the resolutions adopted by the General Assembly of the United Nations. In his opinion, the resolutions constitute an authentic interpretation of the provisions in the Charter of the United Nations, particularly when adopted by unanimous vote; and the most obvious eﬀect of these resolutions on the development of international law is their evidential value in the formation of customary international law.79 His view, in fact, points to China’s intention to take part in formulating international law through the General Assembly, which is regarded as the forum where the voice of the Third World can be heard. The problem that lurks in the practice of stressing 75 76 77

78 79

S. S. Kim, op. cit. (1987), p. 134. Ibid., p. 135. A. Sun and L. Wang. ‘A Preliminary Discussion on the Validity of Treaties in Municipal Law’ 5 Law Review (1986), p. 82. T. Wang, op. cit. (1991), pp. 1–115. Ibid.

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the evidential value of the resolutions of the General Assembly in the formation of customary international law is China’s simultaneous reluctance to accept the important evidential role of the decisions of international courts and tribunals in the law-making process. Professor Wang even considered that the authority of General Assembly resolutions is deﬁnitely higher than “judicial decisions and the teachings of the most highly qualiﬁed publicists.” He believed that if Article 38(1) of the Statute of the International Court of Justice were to be redrafted today, the legal eﬀect of General Assembly resolutions would be taken into account.80 Consequently, China particularly emphasizes Article 59 of the Statute, which provides that “the decision of the Court has no binding force except between the parties and in respect of that particular case”, and rejects the rule of stare decisis in Anglo-American common law.81 The role of the decisions made by the ICJ in the development and clariﬁcation of international rules and principles has not been recognized by China yet. As Karol Wolfke has written, “Considering that the formation of international custom is spontaneous, what would seem to be important is not the courts’ function according to statutes, but the role they play in fact. And their informal share in the development of international customary law is undoubtedly considerable.”82 In retrospect, judgments and opinions of international courts, especially of the ICJ, are of decisive importance as evidence of customary law. The ICJ has invoked them almost as if they were positive law. Judge H. Lauterpacht pointed out: “In fact, the practice of referring to its previous decisions has become one of the most conspicuous features of the Judgments and Opinions of the Court.”83 Although article 59 of the ICJ Statute provides that the judgment of the Court is only binding on the parties and “in respect of that particular case”, the status of the ICJ in the area of international judiciary, the judgments and advisory opinions of the Court have always been considered as the authoritative expression and interpretation of the questions involved in the case. In fact, the ICJ and its predecessor the Permanent Court of International Justice and other international courts and tribunals have played instrumental roles in ascertaining some important customary rules applicable to resolving territorial and boundary disputes, such as estoppel,84

80 81 82

83

84

Ibid. T. Wang and M. Wei. (eds.) International Law (Law Press, Beijing 1981), p. 32. K. Wolfke. Custom in Present International Law (Martinus Nijhoﬀ, Dordrecht/Boston/London 1993), p. 72. H. Lauterpacht. The Development of International Law by the International Court (Praeger, New York 1958), p. 9. For example, Gulf of Maine case, ICJ Reports 1984, p. 286; Temple of Preah Vihear case, ICJ Reports 1962, p. 6.

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acquiescence,85 recognition,86 the critical date87 and uti possidetis,88 etc. The reevaluation of the decisions and opinions of international courts and tribunals, especially the ICJ, in the clariﬁcation of customary international law can be called an essential step for China to take in order to settle its territorial and boundary disputes within international legal system. Although China ranks international treaty higher than international custom in its legislation, China is often entrapped in a disjunction between theory and practice when confronted with the “unequal treaties” related to its territorial and boundary disputes. On the one hand, the so-called “unequal treaties” are repeatedly asserted null and void ab initio by the Chinese government and Chinese publicists.89 In principle, the Chinese publicists accept international treaties as a primary source of international law, but they exclude the treaties called “unequal treaties”. China follows Articles 52 and 53 of the Vienna Convention on the Law of Treaties and considers that since “unequal treaties” are always characterized by the imposition of grossly unequal obligations on a weaker state by a stronger one through use or threat of force, they violate not only the law of treaties but also the principle of sovereign equality and the abolition of these treaties therefore constitutes a lawful exception to the pacta sunt servanda rule.90 Although the PRC has never given a precise deﬁnition of an “unequal treaty”, some speciﬁc treaties were called “unequal treaties” in some circumstances.91 China classiﬁes treaties into two groups: equal and unequal. The latter undermine the most

85

86 87 88 89

90 91

For example, Temple of Preah Vihear case, ICJ Reports 1962, p. 6; Eastern Greenland case, PICJ 1933, Ser A/B, No. 53. For example, Eastern Greenland case, PICJ 1933, Ser A/B, No. 53. For example, The Palmas Island Arbitration, 22 AJIL(1928), p. 735. For example, Frontier Dispute Case (Burkina Faso v. Mali), ICJ Reports 1986, p. 554. The Common Principles, Art. 3 and Art.55, at [25 Feb. 2008]. T. Wang, op. cit. (1991), pp. 1–115. On 8 Mar. 1963, People’s Daily (Renmin ribao) contained an editorial evaluating American Communist Party’s Declaration, where some unequal treaties were mentioned as examples. The sentences went like this: “During the time of more than 100 years before the victory of Chinese revolution, the imperialist and colonist states, such as the United States, Britain, France, Imperial Russia, Germany, Japan, Italy, Austria, Holland, Portugal, ect., invaded China agressively. They coerced the Chinese government into signing scores of unequal treaties, such as the 1842 Nanking Treaty, the 1858 Aigun Treaty, the 1858 Tientsin Treaty, the 1860 Peking Convention, the 1881 Yili Treaty, the 1887 Sino-Portuguese Treaty of Peking, the 1895 Shimonoseki Treaty, the 1898 Convention for the Extension of Hong Kong Territory, the 1901 Boxer Protocol, etc. Through these unequal treaties, these states seized land in the east, west, north and south of China, and leased land in the coastal and inner China. Some of them used force to occupy Taiwan, Penghu

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fundamental principles of international law, such as the principle of sovereignty; therefore they are illegal and void, and states have the right to abrogate this type of treaty at any time. The right to abrogate “unequal treaties” is the essence of the Chinese concept. This view has been shared in the writings of many Chinese publicists and jurists. On the other hand, in practice, quite a number of China’s territorial and boundary disputes have been settled based on the so-called “unequal treaties”. In other words, the “unequal treaties” were not as void as the Chinese have declared. For example, in 1960, China and Burma settled their border disputes based on the “unequal treaties”. On 9 July 1957, Zhou Enlai, the late Premier of the PRC, asserted in a report on the issue of the Sino-Burmese border to the National People’s Congress: Our government holds that the border claimed upon the recognized treaties shall be respected in accordance with the general international practice, but this does not exclude the possibility that the governments of two friendly states come to a fair and reasonable settlement for both sides through peaceful negotiations.92

On 1 October 1960, the Chinese government and Burmese government signed a border treaty for a ﬁnal settlement of the two countries’ border issue. Although the “unequal treaty” imposed on China by Britain was not mentioned in the SinoBurmese border treaty, the exchange of notes between the PRC and Britain on 8 June 1941 was cited as evidence.93 In 1956, Burmese Premier said that although China declared all the “unequal treaties” imposed by Britain before the founding of PRC null and void, China was still willing to negotiate the border issue with Burma based on the demarcation once suggested by Britain. What China felt unacceptable was the “unequal treaty” itself rather than the demarcation line as the content in the “unequal treaty” signed between China and Britain.94 Another good example is the settlement of the Sino-Russian border disputes.95 The settlement was mainly achieved through the 1991 Sino-Russian Border Agreement96 and the 2001 Treaty of Good-Neighborliness and Friendly Cooperation Between

92

93 94 95 96

Islands, and some of them used coercion to occupy Hong Kong and lease Kowloon, and some them occupied Macao by force.” The general procedure concerning settlement of border issue in the PRC’s practice is characterized by an agreement as the result of negotiation preceding the ﬁnal recognized treaty. See T. Wang, op. cit. (1991), pp. 1–115. Ibid. Ibid. China and Russia had been in border disputes for more than 300 years. See the text of the Treaty at [25 Feb. 2008].

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the People’s Republic of China and the Russian Federation (hereinafter the 2001 SinoRussian Treaty).97 These two agreements were based on the “unequal treaties” signed between Tsarist Russia and Imperial China in the mid-19th century.98 Although there is an argument going on about whether the “unequal treaties” are legal problems or not,99 it is noticeable that the Vienna Convention of the Law of Treaties 1969 makes no mention of the category of “unequal treaties”. Actually, the term of “unequal treaty” was ﬁrstly framed in a strong political and moral sense.100 Especially its political color is usually linked to nationalism that is considered detrimental to the legalization of territorial and boundary disputes. In the early 1960s, the deterioration of the relationship between the PRC and the Soviet Union was accompanied with politicization of the border disputes. On 8 March 1963, the Chinese newspaper People’s Daily raised the issue of “unequal treaties” and questioned the validity of the entire Sino-Soviet border. The Chinese insisted that the Soviet Union should recognize the fact that the treaties were unequal. The Soviet side rejected such a request for fear that the Chinese could revive extensive territorial claims in the future. Then, the political criticism about the “unequal treaties” and the rampant domestic nationalism made it impossible for the two countries to look at their border disputes from a legal perspective. Since the early 1980s, in consideration of the solution of the border issues and the improvement of the bilateral relationship, Beijing gave up the demand that the 19th century treaties should be acknowledged as the “unequal treaties”. The term “unequal treaty” involves too many political elements and too much nationalism. To settle the sensitive territorial and boundary disputes, it seems necessary for China to avoid the term of “unequal treaties” and get itself out of the dilemma of disjunctions between theory and practice.

97

98

99

100

See the text of the Treaty at [25 Feb. 2008]. The “unequal treaties” mainly refer to the 1858 Aigun Treaty, the 1860 Peking Convention, the 1864 Sino-Russian Northwest Border Delimitation Agreement, the 1881 Yili Treaty (the Treaty of St. Petersburg). L. F. Chen examined various classical approaches to the concept of unequal treaties, all of which posit the issue of unequal treaties in moral terms and do not question their legal validity. However, in I. Brownlie’s opinion, unequal treaties are a legal problem which warrants the invalidation of a treaty. L.-F. Chen. State Succession to Unequal Treaties (Archon Books, Hamden, Conn. 1974), pp. 28–29; I. Brownlee. Principles of Public International Law (Oxford University Press, London 1966), pp. 495–96. The twentieth century concept of “unequal treaties” was developed by the Soviet Union following the Russian Revolution, and was later used by Asian countries attempting to sever colonial relationship with Western States. After World War I, the term “unequal” treaties was frequently used by these states and began speciﬁcally to denote those nineteenth century treaties in which “Western Powers forced Asian States to accept, inter alia, extraterritorial jurisdiction, . . . territorial cessions and liability to pay tributes, etc.”

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91

Opportunities Change in Ideology

Shirley V. Scott described an ideology as an idea/principle or a set of ideas analyzed in terms of power and believed that every political structure has one particular principle that is integral to that structure.101 International law is eminently qualiﬁed to serve as an ideology102 and its power originates just in peoples’ acceptance of that ideology as a basis for action.103 Certainly contradictory ideologies can paralyze international law in the international community and sometimes even cause the opponents to use force or threat of force to solve their diﬀerences, regardless of law. Diplomatic and historic studies reveal that China’s border wars (the Sino-Indian Border War, the Sino-Soviet Border War and the Sino-Vietnamese Border War) are, to a certain extent, related to ideological struggle.104 Since the inception of the PRC in 1949, there have been some radical ideological and political shifts within the Chinese leadership and academe which subsequently resulted in some changes in both domestic and foreign policy issues. One of the most signiﬁcant changes, which can be called a “watershed”, took place in 1979 when China opened its door to the world and initiated economic reforms. One of the noticeable changes in ideology is that China has completely accepted the theory that only one international law governs all the states in the world. Retrospectively, in the 1950s, under the inﬂuence of the former Soviet Union,105 there was a prevailing theory that two separate systems of international law coexisted in the world: the capitalist and the socialist.106 Then, some Chinese scholars

101

102

103 104

105

106

S. V. Scott. ‘International Law as Ideology: Theorizing the Relationship between International Law and International Politics’ 5 EJIL (1994), p. 318. Morgenthau thought that peace and international law are eminently qualiﬁed to serve as ideologies for a policy of the status quo. See Morgenthau. Politics Among Nations (7 edn. McGraw-Hill Higher Education, Boston 2005), p. 101. See generally S. V. Scott, op. cit. (1994), pp. 311–25. K. S. Shelvankar. ‘China’s Himalayan Frontier: India’s Attitude’ 38 (4) Foreign Aﬀairs (October 1962), p. 477; H. C. Hinton. Communist China in World Politics (Houghton Miﬄin, New York 1966), p. 281; D. J. Doolin. Territorial Claims in the Sino-Soviet Conﬂict (Hoover Institution on War, Revolution, and Peace, Stanford University, Stanford, Calif. 1965); T. S. An. The Sino-Soviet Territorial Dispute (The Westminster Press, Philadelphia 1973), pp. 73–6. G. Ginsburgs and C. Pinkele. ‘The Genesis of the Territorial Issue in the Sino-Soviet Dialogue: Substantive Dispute or Ideological Pas de Deux?’ in J. A. Cohen (ed.) China’s Practice of International Law: Some Cases Studies (Havard University Press, Cambridge 1972), pp. 167–238. H. Chiu. ‘Communist China’s Attitude toward International Law’ 60 (2) AJIL (1966), p. 253. See also E. Snyder. ‘The Communist Theory of International Law’ 2 J. John. Bassett Moore SOC’Y Int’l L. (1961–1962), p. 82. H. Chiu. The People’s of China and the Law of Treaties (Harvard University Press, Cambridge/Mass. 1972), p. 72.

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argued that there were two incompatible systems whose diﬀerent values made it impossible to develop uniform rules applicable to both. At that time, all the treaties and agreements concluded between capitalist and socialist countries were regarded as the result of a ﬁerce struggle between the two parties and a compromise between them reﬂected the reality of the power balance rather than common values.107 Such an ideology consequently made China reluctant to support general international law in the 1950s and 1960s. At that time, China was loyal to the fundamental principle of Communist theory that the state superstructure, including all the laws, reﬂects the economic base of the society and serves the interests of the ruling class. International law was consequently considered to be the result of class structures.108 Zhou Gengsheng, whose two-volume treatise on international law may be accepted as representative of the general attitude and thinking of that period, especially during the 1960s, asserted, “international law, although diﬀerent from domestic law, also shows the will of the ruling classes in diﬀerent states”.109 His theory emphasized the class character as one of the four characteristics of international law.110 Thus, the traditional international law, originated from the West, was regarded as an instrument of imperialists to exploit the working classes.111 During that period of time, the class struggle ideology also inﬂuenced the Chinese government’s foreign policy. For example, the 1958 conference of law of sea was attended by only 80 states, and the conventions adopted there did not, from the Chinese point of view, reﬂect the needs of the Third World. They put a lot of emphasis on the so-called “freedom of the high seas.” China thought that the superpowers would take advantage of their long-distance ﬂeets and send their warships through the territorial waters of other states. A few days later, Beijing formulated its view in even less diplomatic terms: “The international struggle over the law of the sea was in essence a struggle between aggression and anti-aggression, plunder and anti-plunder, hegemony and anti-hegemony. The Chinese government stood ﬁrmly on the side of the developing countries and all countries that upheld justice.”112 Traditional international law was often called “capital international law” and disregarded as nothing but a theoretical instrument to defend the aggressive or colonial policy of the powerful capitalist countries. This ideology, more or less, continued at the subconscious level in the Chinese leadership until the end of 1978. By the end of 1978, the proletarian ideology of Mao Zedong had been replaced by the pragmatic philosophy of Deng Xiaoping. In Deng’s words, the “colour of

107 108 109 110 111

112

H. Chiu, op. cit. (1966), p. 253. Ibid., p. 261. G. Zhou. International Law (The Commercial Press, Beijing 1981), pp. 3–8. Ibid. C. Q. Christol. ‘Communist China and International Law: Strategy and Tactics’ 21 (3) The Western Political Quarterly (Sep. 1968), p. 466. U.N. Doc. A/AC.138/SC.II/S2.62 (5 April 1973).

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the cat” does not matter so long as it can catch “the mice.” With near unanimity, scholars of contemporary China welcomed the change.113 In line with the new ideology, international law has gained an important position in the Chinese “open door” policy whose core is to promote foreign investment in China and China’s international trade. One Chinese writer has stated the importance of international law to China as follows: So far as our country is concerned, international law is an indispensable legal means to realize socialist modernization and construction. For instance, in order to explore resources near our coast, we must study the legal status of the continental shelf, ﬁshing zone and exclusive economic zone and international norms and custom between states in delimiting these regions.114

Deng Xiaoping, at two important Communist Party meetings held in the late 1978, advocated a serious attitude to international law.115 In the early 1980, Professor Wang Tieya in accordance with Deng’s proposal revised the Chinese theory in his article “The Current Trend in International Law”, stating that contemporary international law is in a state of transition from a Eurocentric system to a truly universal system that applies to all nations in the world.116 In fact, instead of denying the binding eﬀect of international law, all countries of the third world without doubt have accepted the bulk of the international legal system.117 In another article of Wang Tieya named “International Law in China: Historical and Contemporary Perspectives,” which he presented as his lecture at the Hague Academy of International Law in 1990, he concluded that the present task of international lawyers “is to take account of diﬀerent histories and cultures of various countries and to ﬁnd out principles of law and justice which are common to all.”118 As far as the concept of fundamental principles of international law is concerned, Wang Tieya emphasized that every legal system should contain some ultimate principles that act erga omnes upon all subjects of the system and from which other subordinate principles and rules derive their legal validity.119

113

114

115

116

117 118 119

L. W. Pye. ‘On Chinese Pragmatism in the 1980s’ (106) The China Quarterly ( Jun. 1986), p. 207. F. Liu. Essentials of Modern International Law (Mass Press, Beijing 1982), p. 5. A similar view is expressed in M. Wei. (ed.) Introduction of International Law (Brightness Press, Beijing 1986), p. 2. See also H. Chiu. ‘Chinese Views on the Sources of International Law’ 28 Harv. Int’l. L. J. (1987), p. 289. Z. Tao. ‘Carrying Out the Policy of Opening to The Outside World and Strengthening the Research Work in International Law’ (1) Studies in Law (Faxue yanjiu) (1985), p. 83. T. Wang. Selected Essays of Wang Tieya (China University of Political Science and Law Press, Beijing 1993), pp. 1–26. Ibid., pp. 27–59. Ibid., pp. 273–410. Ibid.

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From then on, no one in China has ever doubted the theory that there is but one international law applicable to all the international actors. The post-Mao literature on international law has largely kept the class struggle theory in limbo, in tune with the shift from an ideology-oriented to an interest-oriented, pragmatic foreign policy.120 Chinese international law scholars now believe that states observe the rules of international law not because these rules represent their class character but rather because these rules represent their national interests; and they believe that in international society there is no ruling class and that it is not possible to have such a class.121 However, the change in ideology has a positive inﬂuence on China’s approach to international law. 3.2.2

A Rising Sense of Fa

Although the traditional concept of Li still works at various levels in China’s practice, China has embarked to transform from a man-and-morality-ruled society to a system-and-law-ruled society. Henkin gave his positive view in 1979 as follows: Nor was international law threatened by the advent of Communist China, which, from its early days, accepted international law in principle. For some years it was content with isolation and seemed to seek relations only within the Communist family. When China decided to emerge on the international scene and strive for inﬂuence with governments and with Communist parties, it had to be prepared to play largely by existing rules. It did not seek to destroy or remake international law. Indeed, it invoked international law and acquiesced in its authority, as in its territorial disputes with India. Now, having broken with the Soviet Union, having normalized its relations with the United States, and competing with both for inﬂuence among the new nations, China will presumably increase its respect and support for agreed law of nations.122

At the end of 1978 China ended its ten-year-long internal anarchy, which had resulted from the notorious Cultural Revolution (1966–1976), and began to reconstruct its legal system. Deng Xiaoping as the most powerful leader in the post-Mao era even proposed a quick transformation from the rule of man to the rule of law to speed up China’s modernization, and meanwhile urged the need for study of international law.123 For the sake of economic development, two new Constitutions were promulgated respectively in 1978 and 1982, which marked the beginning

120

121 122 123

The Chinese “open door” policy which takes development of economy as the core has remained fairly consistent since the end of 1978. See S. S. Kim. ‘Chinese World Policy in Transition’ 1 World POL’Y J. (1984), p. 603. T. Wang. International Law (Law Press, Beijing 1995), p. 2. L. Henkin. How Nations Behave (Columbia University Press, New York 1979), pp. 109–110. X. Deng. Selected Works of Deng Xiaoping (1975–1982) (People’s Publishing House, Beijing 1983), p. 130.

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of China’s long march of legal system construction. Although the campaign was launched in the economic ﬁeld,124 the legal implications, without a doubt, would be signiﬁcant and far-reaching. Ever since, China has undertaken a broad range of international obligations and joined a number of international organizations at the international level, a development that would have been unthinkable in the Mao’s era.125 The inﬂuential article “We Must Strengthen International Law Research” written by Wang Tieya and Wei Min was published in the central government’s newspaper Renmin Ribao (People’s Daily) in 1979.126 Although Confucianism, which stresses the role of morality in society rather than the legal one, is still inﬂuencing the Chinese value system, the common sense about law has improved greatly and this trend will undoubtedly continue. The rising sense of law has to some extent contributed to the settlement of some of China’s territorial and boundary disputes. By 2004, China had successfully resolved the majority of its land border disputes with its neighbours through bilateral treaties,127 such as the border treaty with Laos (1991),128 the border agreement on the eastern sector with the former Soviet Union (1991),129 the border agreement on the western sector with Russia (1994) and other border agreements with Kazakhstan (1994),130 Kyrgyzstan (1996),131 and Tajikistan (1999).132 During the bilateral negotiations, China’s consistent recourse to some principles of international law was very impressive. The best illustration of this is the Sino-Russian border case. In the negotiations with its Russian counterpart before 1978, China also gave its legal arguments over the border issues. For instance, the Chinese side stated: “According to established principles of international law, the central line of the 124

125 126

127

128

129

130 131 132

Of the 409 laws and regulations promulgated from 1979 to the end of 1985, 327 (79.9%) were regulations designed to facilitate economic reconstruction; 60 laws and regulations deal with foreign economic activities alone. See Renmin ribao (People’s Daily) (Beijing 12 Dec. 1985), p. 1. See also A. Chen. ‘To Open Wider or to Close Again: Foreign Investment Policies and Laws’ 6 N. Y. L. Rev. (1984), p. 1. The People’s Republic of China was under the reign of Mao Zedong from 1949 to 1976. T. Wang and M. Wei ‘We Must Strengthen International Law Research’ Renmin ribao (People’s Daily) (Beijing 30 Mar. 1979), p. 3. Most of resolutions were achieved between 1990 and 2004. See the report on China’s territory and border issues at [27 Feb. 2008]. or at [27 Feb. 2008]. The treaty is available at [27 Feb. 2008]. The supplementary agreement on the eastern sector between China and Russia was signed in 2004. The supplementary agreement between China and Kazakhstan was signed in 1997 and 1998. The supplementary agreement between China and Kyrgyzstan was signed in 1999. The supplementary agreement between China and Tajikistan was signed in 2002.

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main navigable channel should form the boundary line which determines the ownership of islands in the case of navigable boundary rivers (the thalweg principle) and the middle line of the river in the case of non-navigable streams/rivers (the middle line principle).” But the legal claims were from time to time interrupted by its political declarations.133 For example, the Chinese leader Mao Zedong, in an interview with a group of Japanese socialists on 10 July 1964, accused the Soviet Union of pursuing an annexationist policy with regard to its neighbours,134 and declared that Khabarovsk and Vladivostok were built on the territory that belonged to China a century ago. Obviously, his speech accentuated the political aspect of the disputes.135 Since the 1980’s, the Chinese leaders have shifted their arguments to the legal aspects of the border issues, arguing that under the terms of the 19th century treaties between China and Russia the border rivers formed the boundary, but there was lack of clarity regarding the delimitation line and the ownership of the islands located in the border rivers.136 Thereafter, China focused exclusively on the disputes over the boundary delimitation. To avoid the political arguments, China adhered to the thalweg doctrine of traditional international law.137 For example, one of the persisting border disputes was about the sovereignty of the Bear island (“Bolshoi Ussurisky” in Russian and “Heixiazi Dao” in Chinese), which overlooks Khabarovsk: The island had a small permanent population and a number of weekend cottages. The Soviets/Russians feared that the surrender of the island would threaten the security of Khabarovsk. They claimed the ownership of the island on the basis of the long period of occupancy and the proximity to Khabarovsk. The Chinese claimed the island in pursuance of the thalweg principle.138

133

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135

136 137

138

G. Ginsburgs. ‘The Status of the Islands in the Russian-Chinese Border Waterways’ 24 Rev. Cen. & E. Eur. L. (1998), pp. 135–6. He gave the examples of Finland, the absorption of the Baltic states, western Ukraine, western Belorussia, the Bukovina and part of east Prussia to illustrate the Soviet annexation policy. He also supported Japan’s claim to the Kurile islands. See J. Bakshi. ‘Russia-China Boundary Agreement: Relevance for India’ XXIV (10) Strategic Analysis (Jan. 2001), at [27 Feb. 2008]. T. W. Robinson. ‘The Sino-Soviet Border Dispute: Background, Development, and the March 1969 Clashes’ 66 (4) The American Political Science Review (Dec. 1972), p. 1178. J. Bakshi, op. cit. (2001). Anyway, the ﬁnal titles of some islands were settled by compromise, not strictly sticking to the principles in order to produce a “win-win” result. See I. Akihiro. ‘An Inquiry for New Thinking on the Border Dispute: Backgrounds of “Historic Success” for the Sino-Russian Negotiations’ in I. Akihiro (ed.) Siberia And The Russian Far East In The 21st Century: Partners in the “Community of Asia” , Vol. 1 Crossroads in Northeast Asia (The Slavic Research Center, 2005), at [27 Feb. 2008]. J. Bakshi, op. cit. (2001).

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On 28 July 1986, President Mikhail Gorbachev gave an important speech in Vladivostok, in which he declared that the Soviet Union was willing to accept the thalweg principle to form the oﬃcial boundary line with China.139 Immediately, China welcomed the speech and subsequently, in 1987, a joint Soviet-Chinese Commission began to work on resolving the border dispute along the Amur and Ussuri rivers.140 In 1991, China and the former Soviet Union signed an important border agreement, in which the border rivers were delimitated on the basis of the principles of thalweg and middle line.141 On 18 December 1992, China and Russia signed another agreement called Joint Declaration on the Basis of Interrelations between the Russian Federation and the PRC, declaring that they would continue their border negotiations based on the signed border agreements or the generally recognized norms of international law in the case of there being no border treaties.142 In 1995, some domestic snags on both sides persisted as unfavorable elements for the ﬁnal settlement of the boundary disputes. Some Chinese were concerned that the boundary delimitation was based on the “unequal treaties” that had been declared null and void by the Chinese government.143 There was also severe criticism from the Russian public, saying that Russian national interest had been harmed and too much concession had been made to China regarding the boundary issues.144 During that diﬃcult period, the Chinese Premier conﬁrmed, “both sides should ﬁrmly adhere to their border agreements and strive for an early consensus on border disarmament and conﬁdence-building measures.”145 The Russian government also remained ﬁrm against the criticisms about the border agreements. Warding oﬀ domestic nationalist pressure in both Russia and China, the two parties signed the joint communiqué on 26 June 1995, which re-conﬁrmed their mutual commitment to the spirit and content of the 1991 Agreement on the eastern portion of the Russian-Chinese border.146 Eventually, treaties prevailed over nationalism. When a state declares its will to observe international law, it is actually creating a positive inﬂuence on the international community. As Louis Henkin has 139

140 141

142 143

144 145 146

People’s Daily news at . See also C. E. Ziegler. Foreign Policy and East Asia, Learning and Adaptation in the Gorbachev Era (Cambridge University Press, Cambridge 1993), pp. 72–73. Ibid. See the Border Agreement, Art. 5, at [28 Feb. 2008]. G. Ginsburgs, op. cit. (1998), pp. 142–3. Xin Hua News, at [27 Feb. 2008]. G. Ginsburgs, op. cit. (1998), pp. 135–68. China Daily (28 Jun. 1995), p. 1. Beijing Reviews (17–23 July 1995), p. 4.

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written, “Even when a nation hypocritically invokes international law as a cover for self-interested diplomacy as usual, it is signiﬁcant that it feels the need to pay this homage to virtue.”147 The international legal order is autonomous and international law not only supports but also constrains China’s claims and behaviour. China has realized the importance of legal justiﬁcations in its territorial claims. Its experience with international law in the Post-Mao era, especially during the period when Sino-Russian territory and boundary disputes were being settled, is quite positive for its future dispute resolution strategy.148 3.2.3

Motives for Legal Perspective

Territorial and boundary disputes are the embodiment of both legal and political factors, interests and justiﬁcations. Selﬁsh states usually decide which aspect, legal or political, they stress to serve their best interests. Sometimes, leaving a dispute unresolved is better than trying to resolve it.149 And sometimes, an eﬀort to resolve a dispute is better than doing nothing. However, in the latter case, the legal perspective of a dispute may be very helpful and sometimes even necessary for a settlement. For the sake of economic interests, China would like to settle its major territorial and boundary disputes. Its main objective is to create a long-term peaceful environment for its economic development.150 No one would deny the fact that the world has entered an economic age. Today, nations are far more likely to pursue their economic needs through international trade and foreign direct investment than through territorial acquisition.151 Ever since the end of 1978, China

147 148

149

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L. Henkin. How Nations Behave (Columbia University Press, New York 1979), p. 45. At the July 1995 ASEAN Meeting, the Chinese Foreign Minister Qian Qichen declared that China was willing to resolve the Spratly “disputes through peaceful means in accordance with principles deﬁned in recognized international law . . . including the UN Convention on the . . . Law of the Sea.” Commnetary: Bright Future for Sino- Asean Ties, Xinhua News Agency, Aug. 2, 1995, available in LEXIS, World Library, XINHUA File. For example, the border disputes between China and North Korea. Both China and North Korea know in general that their boundary follows the course of the Yalu River, which ﬂows westward into the Yellow Sea, and the Tumen River, which ﬂows eastward into the Sea of Japan. However, according to the Chinese map, their territory includes the vicinity of Chang-pei (Everwhite) Mountain, which is the Yalu-Tumen watershed. According to the Korean map, the boundary follows the water principle, with the line running through the summit. Both sides do not appear to take things seriously and are in no hurry to settle this minor discrepancy. See B. N. Tzou, op. cit. (1990), p. 55. S. Wei. ‘Conﬁdence Building and Eﬃcient Methods for Border Disputes Resolution’ in J. Dahlitz (ed.) Peaceful Resolution of Major International Disputes (The United Nations, New York 1999), p. 116. R. Mandel. ‘Roots of the Modern Interstate Border Dispute’ 24 (3) Journal of Conﬂict Resolution (Sep. 1980), pp. 428–9.

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has been engaged in expanding its economic activities around the world. In fact, economic relevance has had an impressive impact on China’s view of its territorial and boundary disputes. In the 1990’s, China successfully resolved its boundary disputes with Russia, Kazakhstan, Kyrgyzstan and Tajikistan in a relatively short time, a development which owes much to its economic considerations, especially energy concerns. Many specialists link China’s compromise with Russia in border issues with a “SinoRussian energy deal,”152 and China’s growing involvement in Central Asia also has to do with its energy security. China has become one of the major oil and gas importers, and the countries of Central Asia – particularly Kazakhstan, Uzbekistan. Turkmenistan, Kyrgyzstan and Tajikistan, some of whom were once embroiled in boundary disputes with China – are important potential suppliers in Beijing’s energy strategy.153 Through regional organizations – the Shanghai Co-operation Organisation (hereinafter the SCO)154 and the Association of South-East Asian Nations – China is trying to establish closer relations with its neighbours. The settlement, or at least the agreement on a framework for settlement, of boundary disputes has been put on Beijing’s agenda.155 Beijing’s leaders have realized that being accommodating best serves their interests in maintaining stable ties in the region.156 The settlement of the Sino-Russian border disputes has strengthened the relations between the two countries and improved the bilateral trade and regional economic cooperation. For China, in developing its traditional industrial bases in Northeast China, a territory, which borders Russia, directly relies on Russia. China can use energy resources and raw materials from Russia and beneﬁt from the big neighbor’s huge market.157 In March 2006, Russia and China signed an agreement to pipe large quantities of gas from ﬁelds in Siberia to China.158 The project of building

152 153

154

155

156 157

158

I. Akihiro, op. cit. (2005), p. 113. S. Vinogradov and P. Andrews-Speed. ‘China’s Involvement in Central Asian Petroleum: Convergent or Divergent Interests?’ 40 (2) Asian Survey (Mar.–Apr. 2000), p. 377. The Shanghai Cooperation Organization (SCO) is an intergovernmental international organization founded in Shanghai on 15 June 2001 by six countries: China, Russia, Kazakhstan, Kyrgyzstan, Tajikistan and Uzbekistan. T. Fravel ‘A New Sphere of Inﬂuence: How Trade Clout Is Winning China Allies Yet Stoking Distrust’ Financial Times (9 Dec. 2005), p. 17. Ibid. L. Zhang. ‘Border Solution Sets Precedent: Successful Settlement of Sino-Russian Border Disputes Provides a Model for Solving Other Border Problems’ Beijing Rev. (25 May 2005), at [29 Feb. 2008]. During the visit of March 2006 to China, Russian President Putin was heading a 90-member delegation, which included oﬃcials from Russia’s oil and gas industries and other economic representatives. The two sides signed 15 agreements to promote commercial co-operation,

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an oil pipeline from Kazakhstan to China was completed at the end of 2005. The pipeline enables Kazakhstan to export its substantial reserves of oil to China.159 Most of the unresolved boundary and territorial disputes China is embroiled in involve potential energy reserves. In the East China Sea, China and Japan face trouble in the form of disputes over the continental delimitation and the sovereignty of the islands of the Diaoyu Dao/Senkaku Islands. The disputed areas are estimated to hold abundant oil and gas resources.160 To some extent, the disputing parties are mainly struggling for the natural oil and gas reserves in the seabed. In the South China Sea, China and some Southeast Asian countries have similar troubles.161 China and its disputing counterparts thus ﬁnd themselves in the following dilemma: on the one hand, in and around the disputed seabed or territory, the potentially promising assets remain untouched and exploration may be delayed or prevented; on the other hand, the states concerned urgently want to exploit the potential resources to boost their economy. The desire to exploit oﬀshore hydrocarbon resources motivates China to ﬁnd a framework for the settlement of the disputes in the East China Sea and the South China Sea. Peter Odell believes that the rapidly expanding economies of the western Paciﬁc Rim will create very large demands that might provide a powerful incentive to solve boundary demarcation problems in the region.162 With the accumulating economic interest, India and China are more urgent compelled to clear the obstacle in their way and have put their names to an historic agreement which sets the process of resolving their border disputes in motion.163 The pact, signed in April 2005 by India’s national security advisor N. K. Narayan and Chinese Vice-Foreign Minister Dai Bingguo, sets out ‘guiding principles’ to settle the fate of disputed territories.164 In history, most of territorial and boundary disputes were settled by war. But this cannot be accepted by modern societies. Peaceful settlement of international

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162 163 164

including four relating to the energy sector. BBC News at [29 Feb. 2008]. People’s Daily News at [29 Feb. 2008]. Xin Hua News at [29 Feb. 2008]. J. C. K. Daly. ‘Energy Concerns and China’s Unresolved Territorial Disputes’ IV (24) China Brief (7 Dec. 2004), at [29 Feb. 2008]; See also J. Chen. ‘China’s Spratly Policy: With Special Reference to the Philippines and Malaysia’ 34 (10) Asian Survey (Oct. 1994), p. 895. P. R. Odell. ‘Hydrocarbons: The Pace Quickens’ in G. Blake (ed.), op. cit. (1998), pp. 39–41. Financial Times (London 21 April 1994). News at [25 Mar. 2008].

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disputes has been legally imposed on all states. China has the legal obligation to resolve its territorial and boundary disputes by peaceful means. China has signed various treaties with disputing states such as Japan, Vietnam, Indonesia, Malaysia, the Philippines, Brunei and India, committing itself to peaceful settlement of the relevant territorial and boundary disputes. On 2 November 2002, China signed a Code of Conduct in the South China Sea with the Association of South East Asian Nations (ASEAN),165 committing all signatories to peaceful resolutions of outstanding issues.166 Article 4 of the Declaration on the Conduct of Parties in the South China Sea provides, “The Parties concerned undertake to resolve their territorial and jurisdictional disputes by peaceful means, without resorting to the threat or use of force, through friendly consultations and negotiations by sovereign states directly concerned, in accordance with universally recognized principles of international law, including the 1982 UN Convention on the Law of the Sea.”167 China and Japan also commit themselves to settling all their disputes by peaceful means in two important treaties: the Joint Communique of the Government of Japan and the Government of the People’s Republic of China (1972) and the Treaty of Peace and Friendship between Japan and the People’s Republic of China (1978). Article 6 of the 1972 treaty provides: “The two Governments conﬁrm that, in conformity with the foregoing principles and the principles of the Charter of the United Nations, Japan and China shall in their mutual relations settle all disputes by peaceful means and shall refrain from the use or threat of force.”168 There is a similar content in the 1978 Sino-Japanese treaty.169 In the Japan-China Joint Declaration on Building a Partnership of Friendship and Cooperation for Peace and Development signed in 1998, the two sides restated that they shall observe the principles of the above two treaties and reaﬃrmed that the treaties will continue to be the most important foundation for their bilateral relations.170

165

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Malaysia, the Philippines, Vietnam, Indonesia and Brunei that have territorial or boundary disputes with China are all the members of the ASEAN. J. C. K. Daly, op. cit. (2004). See also the news at [14 Apr. 2008]. See the text of Declaration on the Conduct of Parties in the South China, at [14 Apr. 2008]. See the text of the 1972 Communique at [29 Feb. 2008]. Art. I (2): The Contracting Parties conﬁrm that, in conformity with the foregoing principles and the principles of the Charter of the United Nations, they shall in their mutual relations settle all disputes by peaceful means and shall refrain from the use or threat of force. See the text of the 1978 treaty at [29 Feb. 2008]. See the 1998 declaration at [29 Feb. 2008].

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In 2003, China and India signed the Declaration on Principles for Relations and Comprehensive Cooperation Between the People’s Republic of China and the Republic of India, in which the two sides agreed that neither side shall use or threaten to use force against the other and shall address diﬀerences through peaceful means in a fair, reasonable and mutually acceptable manner.171 The Agreement on Political Guiding Principles for Resolving the Boundary Issue, singed by China and India in 2005, has laid a solid foundation for resolving their border disputes. The agreement states that the two sides will resolve the boundary question through peaceful and friendly consultation and neither shall use or threaten to use force against the other by any means.172 Thus, economic considerations and legal obligations motivate China to take a legal and formal perspective on its territorial and boundary disputes and to attempt to settle them by peaceful methods. 3.2.4 The Legal Implications of the Principles of Status Quo and Joint Development 3.2.4.1 Status Quo With China’s successful settlement of its territorial and boundary disputes with Russia, Kazakhstan, Kergyzstan, Tajikistan and Vietnam on land,173 India is the only country with whom China has problematic land border disputes. In September 1993, China and India signed the agreement on the maintenance of peace and tranquility in the border areas along the line of actual control. In December 1996, the two sides signed an agreement on conﬁdence-building measures in the military ﬁeld along the line of actual control and agreed to respect the Line of Actual Control pending the ﬁnal solution of the boundary question.174 Respect for the Line of Actual Control is tantamount to respect for the principle of status quo, which

171

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See the 2003 declaration, at [28 Feb. 2008]. R. Walker and K. Renfrew ‘China and India Sign Deal to Settle 40-Year Territorial Dispute’ (12 Apr. 2005), at [28 Feb. 2008]. See also Xin Hua NEWS, the clariﬁcation of the Sino-Indian political principles for resolving boundary issue by the Ministry of Foreign Aﬀairs of the PRC, at [28 Feb. 2008]. On 30 December 1999, China and Vietnam signed delimitation treaty on land. On 2 June 2005, China and Russia exchanged ratiﬁcation documents of the complementary agreement on the eastern section of the China-Russia boundary, which meant that China and Russia have completely resolved all the border disputes. See the introduction to the China-Vietnam Border Delimitation Treaty of 30 December 1999 at: [14 Apr. 2008]. See also L. Zhang, op. cit. (2008). J. Bakshi, op. cit. (2001).

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was applied to the Sino-Russian border issue. What are the legal implications of the principle of status quo? The status quo is likely to be regarded as a prima facie justiﬁcation, which fosters the sense that the existing possession is just until another can show why it is not.175 If a state demands or makes change of the existing possession, it has a legal duty to show better justiﬁcation. Otherwise, its action will likely cause chaos.176 In short, the onus is on the revisionist.177 Therefore, onus proband, the burden of proof, should come ﬁrst in the claimant’s consideration. When China and India agreed on a status quo, they were obliged to give legal evidence to support any demand for subsequent changes. Such obligations originate from the general legal principle of ei incumbit probatio, qui dicit aﬃrmat, non qui negat (proof lies upon him who aﬃrms, not upon him who denies). That is to say, the burden of proof shall be on the one who demands any change of the Line of Actual Control. The Sino-Russian case is a good illustration. According to the Sino-Russian settlement framework, China and Russia ﬁrstly reached an agreement that they should observe the status quo in their border areas pending ﬁnal settlement. They were then obliged to present the documentary basis of their respective positions and claims.178 The principle of ei incumbit probatio, qui dicit aﬃrmat, non qui negat worked pretty well during the procedure. Before the two sides reached the ﬁnal border agreement, Russia had been in actual control of all the disputed territory. When China demanded to change this status quo, the burden of proof was on China. Accordingly, China justiﬁed its demand by the established international principle of the thalweg in the border delimitation. The grounds on which states attack exiting possession or aﬃrm it come from either the group of the historical, geographical and ethnic grounds or the various forms of merit or need,179 but the most legitimate ground should have a legal character. The political argument over the title to a piece of land has been proved senseless and fruitless. It is very unlikely to expect a result if China and India endlessly argue, not because “we want the disputed areas” but because both say, “the disputed areas are ours”. If international law is not clear enough to resolve a dispute, it is much easier to raise the issue. Disputes are more likely to open up in cases where international

175

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179

F. S. Northedge and M. D. Donelan. International Disputes: The Political Aspects (Europa Publications Limited, 1971), p. 77. Ibid. Ibid. V. S. Kotliar and S. Wei. ‘Elements of Guidelines Relating to Negotiations on Border Dispute Resolution Drafted and Agreed’ in J. Dahlitz (ed.) Peaceful Resolution Of Major International Disputes (The United Nations, 1999), pp. 141–2. F. S. Northedge and M. D. Donelan, op. cit. (1971), p. 77.

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law seems to have left room for diﬀerent claims.180 Territorial and boundary questions often produce a lengthy paper trail of treaties and legal documentation. If territorial claims do not have a strong legal basis, people and states should stress the irrationality or impossibility of the return of the lost territory. Finland’s conduct provides an example of this. As a result of the war between the former Soviet Union and Finland in 1939–40, Finland had to cede a large part of its eastern territories to the Soviet Union. In 1992 when Finland and Russia signed a new treaty concerning their relationship, the present border was agreed to be inviolable. Although the public had some voices about the lost territory, not one leading politician publicly favoured opening the question of the return of the lost areas. In the Finnish government’s opinion, the border had been determined by the bilateral treaties.181 Territorial disputes based on conﬂicting normative demands often cause powerpolitical competition.182 To avoid such a dangerous competition, international law provides shared norms for the disputing parties to develop a framework for settlement of their territorial and boundary disputes. The agreement on a status quo in the border areas implies that both China and India assume the burden of proof in their requesting a change of the status quo according to international legal procedures. 3.2.4.2 Joint Development As far as the territorial and boundary disputes in the East China Sea and the South China Sea are concerned, China is willing to ignore the sovereignty issue temporarily in order to proceed with joint development, which is called the policy of “shelving sovereignty for joint development.” Accordingly, in July 1995 China proposed to the ASEAN members that the sovereignty disputes over the Spratly Islands should be shelved and eﬀorts should be made for joint development.183 In 2004, China made a similar proposal to Japan, calling for joint development of the disputed area in the East China Sea.184 In July 2005 China and Vietnam agreed to promote joint exploitation in the South China Sea.185 In June 2006 China reached a general

180

181 182 183 184

185

T. Forsberg. ‘Explaining Territorial Disputes: From Power Politics to Normative Reasons’ 33 (4) Journal of Peace Research (1996), p. 444. Ibid., pp. 442–3. Ibid., p. 445. Xinhua News, July 30, 1995, available in LEXIS, World Library, XINAHUA File. Xinhua News, at [01 Mar. 2008]. As early as in March 2005, three oil companies from China, Vietnam and the Philippines signed a landmark tripartite agreement in Manila to jointly prospect oil and gas resources in the disputed South China Sea. Xinhua News, at [29 Feb. 2008].

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agreement with North Korea on the joint development of the source of oil in the bordering sea.186 The so-called “joint development” policy may have very positive legal implications for the disputing parties. In general, an agreement on joint development implies that the disputing parties are obliged to cooperate in good faith in the exploitation of the shared natural resources. In other words, the disputing parties have the legal obligation to negotiate in good faith towards reaching an equitable resolution of the dispute or interim arrangements. Article 74 and 83 of the 1982 UNCLOS provide that states “shall make every eﬀort” to enter into provisional arrangements.187 Therefore, although the states concerned are obliged not to undertake speciﬁc actions, at least they should have an obligation to negotiate about interim measures. Such a requirement is not merely a nonbinding recommendation or encouragement but a mandatory rule whose breach would represent a violation of international law.188 In the North Sea Continental Shelf cases, the ICJ also held that there was a customary rule requiring states with adjacent coastlines to negotiate a maritime boundary agreement in good faith, applying so-called equitable principles.189 The Court explained that this obligation “is moreover recognized in Article 33 of the Charter of the United Nations as one of the methods for the peaceful settlement of international disputes.”190 Under this obligation, since October 2004, China and Japan have held nine rounds of talks negotiating the continental disputes in the East China Sea.191 This obligation has been applied by oil-producing states to their practice and is recognized as a general principle of international law.192 Considering the ﬂuid nature of the hydrocarbon deposits, joint development emerges as the most advisable option to realize the obligation to cooperate.193 For example, the United Kingdom and Norway entered into an agreement to jointly develop the Frigg

186

187 188

189 190 191

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On 6 June 2006, the Chinese Foreign Ministry spokesman Liu Jianchao reported this news at a press conference. Xinhua News, at [01 Mar. 2008]. UNCLOS, Art. 74 (3) and Art. 83 (3). R. Lagoni. ‘Interim Measures Pending Maritime Delimitation Agreements’ 78 (2) AJIL (1984), p. 354. The North Sea Cases, I.C.J. Reports 1969, pp. 54–5, para. 101(D). North Sea Continental Shelf Cases, ICJ Reports 1969, p. 47, para. 86. BBC News, at [01 Mar. 2008]. W. T. Onorato. ‘Apportionment of an international Common Petroleum Deposit’ 26 ICLQ (1977), p. 331. And see D. M. Ong. ‘Joint Development of Common Oﬀshore Oil and Gas Deposits: “Mere” State Practice or Customary International Law?’ 93 (4) AJIL (1999), p. 801. Notwithstanding state practice in the form of joint development is insuﬃcient in itself to conﬁrm joint development as the only option available to interested states. See D. M. Ong, op. cit. (1999).

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(Gas) Reservoir as a single unit.194 In 1979 and 1990, Thailand and Malaysia also reached agreements for the joint development of the disputed area of continental shelf in the Gulf of Thailand.195 If a part of the disputed continental shelf is placed under a regime of joint management, it means that the neighbouring states are obliged to abstain from exercising, fully or partially, their sovereign rights that are disputed.196 In other words, pending the ﬁnal agreement or settlement of the dispute, there is an obligation on the parties concerned to exercise mutual restraint with respect to the unilateral exploration and exploitation of the resources in the disputed area.197 Based on the 1982 UNCLOS, each of the states concerned is legally entitled to claim the relevant rights to the area in question and the relevant rights are both inherent and exclusive.198 Article 77(2) further explains that the relevant rights are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal State. Besides the support from the conventional international law, customary international law also supports such states’ inherent rights. In the North Sea Continental Shelf cases, the ICJ based on the application of customary international law argued that the sovereign rights of a coastal state exist ipso facto and ab initio by virtue of its sovereignty over the adjacent land territory.199 Thus, concerning the resources in the disputed area, the disputing states either settle the boundary delimitation before exploitation or reach an agreement on joint development while setting aside the contentious boundary issue.200 Without the other parties’ agreement, any unilateral exploitation in the disputed area will potentially harm the others’ sovereignty over the resources in the place.

194

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196 197 198 199 200

Agreement Relating to the Exploitation of the Frigg Field Reservoir and the Transmission of Gas Therefrom to the United Kingdom, May 10, 1976, UK-Nor., 1977 Gr. Brit. TS No. 113 (Cmnd. 7043), 1098 UNTS 3. See J. C. Woodliﬀe. ‘ International Unitization of an Oﬀshore Gas Field’ 26 ICLQ (1977), p. 338. D. M. Ong. ‘Thailand/Malaysia: The Joint Development Agreement 1990’ 6 Int’l J. Estuarine & Coastal L. (1990), p. 57. D. M. Ong. ‘The 1979 and 1990 Malaysia-Thailand Joint Development Agreements: A Model for International Legal Cooperation in Common Oﬀshore Petroleum Deposits?’ 14 Int’l J. Marine & Coastal L. (1999), p. 207. More examples are mentioned in M. Miyoshi. ‘The Basic Concept of Joint Development of Hydrocarbon Resources on the Continental Shelf: With Special Reference to the Discussions at the East-West Centre Workshops on the South-East Asian Seas’ 3 Int’l J. Estuarine & Coastal L. (1988), pp. 1–3. M. Miyoshi, op. cit. (1988), p. 5. R. Lagoni, op. cit. (1984), p. 367. UNCLOS, Article 56(a). The North Sea Case, ICJ Reports 1969. p. 22, para. 19. D. M. Ong, op. cit. (1999), p. 776.

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From the Aegean Sea Continental Shelf case,201 one can infer that permanent exploration activities such as establishing installations, or activities which amount to actual appropriation or other use of the natural resources in the disputed areas, should be prohibited. And if these activities had happened, the Court would have terminated them by an injunction.202 The disputing parties should halt their operations in the area of overlapping claims while their case is before the Court.203 This obligation is also embodied in Article 74(3) and 83(3) of the LOS Convention (1982), where we can ﬁnd the provision: “. . . the States concerned in a spirit of understanding and co-operation, shall make every eﬀort . . . during this transitional period, not to jeopardize or hamper the reaching of the ﬁnal agreement. . . .” As for the EEZ and the continental shelf, the 1982 UNLOS requires states to cooperate toward reaching agreement regarding their delimitation disputes.204 The states concerned are also required to make every eﬀort to enter into practical provisional arrangements, presumably as a precaution against the discovery of common mineral or hydrocarbon deposits, prior to concluding the ﬁnal delimitation agreement.205 Generally, there are two types of joint development schemes: in the ﬁrst type boundary delimitation has been shelved, and in the second type a regime of joint development with the boundary delimited has been installed.206 Obviously, China’s policy of “shelving sovereignty for joint development” falls under the ﬁrst type, stressing the practical provisional arrangements. The policy is just to provide practical solutions to actual problems regarding the use of an area and is not to touch upon either the delimitation issue itself or the territorial questions underlying this issue.207 As for the resources in the disputed areas, China has two legitimate options: (1) trying to reach an agreement on joint development regardless of sovereignty with its neighbours; (2) if there is no possibility to reach such an agreement, China has to settle the boundary disputes before exploitation begins. The “joint development” policy is not supposed to jeopardize or hamper the achievement of the ﬁnal settlement of boundary delimitation at all because the parties feel free either to consolidate the agreed arrangements as a permanent regime or to continue to use them as arrangements of joint development after boundary delimitation.

201

202 203 204 205 206

207

Aegean Sea Continental Shelf (Greece v. Turk.), Interim Protection, Order of 11 September 1976, ICJ Reports 1976. p. 3. R. Lagoni, op. cit. (1984), p. 366. Ibid. UNCLOS, Art. 74 (1) and 83(1). UNCLOS, Art. 74(3) and 83(3). M. Miyoshi. ‘The Basic Concept of Joint Development of Hydrocarbon Resources on the Continental Shelf: With Special Reference to the Discussions at the East-West Centre Workshops on the South-East Asian Seas’ 3 Int’l J. Estuarine & Coastal L. (1988), p. 3. X. Deng. Selected Essays of Deng Xiaoping, Vol. 3 (People’s Publishing House, Beijing 1983), p. 49.

Chapter 4 China’s Approach to International Dispute Resolution Mechanisms For cultural and political reasons, China adheres to negotiations for settlement of its territorial and boundary disputes. So the third party procedures are usually ignored. However, the positive implications of third party settlement may make China rethink its dispute settlement strategy.

4.1 4.1.1

Problems The Role of Chinese Nationalism

Nationalism, as a political phenomenon, has led to the functioning of international boundaries. In many cases the delimitation of boundaries has become an expression of power.1 International relations scholars have produced a pessimistic evaluation about nationalism, which increases the chances of international conﬂict in the Post-Cold War era.2 Potentially, nationalism can spill over borders and increase the likelihood of international conﬂict. Where nationalism is involved, territorial and boundary disputes become very volatile and ﬂammable. Chinese nationalism, as one of the most eﬀective instruments available for the Chinese government to deal with its domestic and foreign aﬀairs, has profound implications for its choice of method to resolve its territorial and boundary disputes. Historically, Chinese nationalism largely aligned with xenophobia, which, as a result, expelled any third party from intervention into its disputes. Before the nineteenth century, Chinese nationalism did not exist in the Chinese Empire. Instead, Chinese culturism, which represented a ‘non-territorial concept’, held the place of today’s nationalism. Chinese culturism, which was the outgrowth of Confucianism, perceived China as the only true civilization and embodied a universal set of values.

1 2

P. K. Menon. ‘Settlement of International Boundary Disputes’ 8 Anglo-Am. L. Rev. (1924), p. 24. E. S. Downs and P. C. Saunders. ‘Legitimacy and the Limits of Nationalism: China and the Diaoyu Islands’ 23 (3) International Security (Winter 1998–1999), p. 114.

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Its cultural superiority was believed to be unchallenged.3 At that time, the Chinese culture was treated as the main instrument of the Empire’s expansion. The Chinese political elite began to embrace modern nationalist doctrines for China’s defense and regeneration only after China’s disastrous defeat by the British troops in the 1840–1842 Opium War, which led not only to the eventual disintegration of the Chinese empire but also to the loss of national sovereignty to imperialist powers. Since then, Chinese nationalism, striving to blot out the humiliation China had suﬀered at the hands of imperialists, has been the dominant theme in the Chinese politics.4 Chinese nationalism reached its peak in the May Fourth Movement in 19195 during which xenophobia was the main theme. After its experience of being reduced from the “Central Kingdom” of the universe to a semi-colony at the hands of foreign imperialism, China saw its culturism vanishing and nationalism thriving. Ultimately, Chinese nationalism replaced Chinese culturism. Nowadays, the myth of Chinese nationalism is deeply implanted in Chinese minds.6 Chinese people still share a deeply rooted, historical sense of injustice they suﬀered at the hands of foreign countries.7 China’s territorial claims reﬂect its dissatisfaction with the status quo and historical grievances that resonate deeply with nationalist sentiment.8 Anyone who accepted the territory’s cession in whatever form is dishonorably called Li Hongzhang,9 and no one would be another Li Hongzhang. Chinese political elites have been divided on how to revive China. Basically, there are three diﬀerent nationalist perspectives: nativism, antitraditionalism, and pragmatism.10

3

4

5

6 7

8

9

10

J. R. Levenson. Liang Ch’i-ch’ao and the Mind of Modern China (University of California Press, Berkeley 1967), p. 108. B. I. Schwartz. ‘Culture, Modernity, and Nationalism – Further Reﬂections’ in T. Weiming (ed.) China in Transformation (Harvard University Press, Cambridge, MA 1993), p. 247. J. Harrison. Modern Chinese Nationalism (Hunter College of the City of New York, Research Institute on Modern Asia, New York 1969), p. 2. S. Zhao. ‘China’s Pragmatic Nationalism: Is It Manageable?’ The Washington Quarterly (Winter 2005–2006), pp. 132–3. The May Fourth Movement was an anti-imperialist, cultural, and political movement in early modern China. Taking place on May 4, 1919, it marked the upsurge of Chinese nationalism, and a re-evaluation of Chinese cultural institutions, such as Confucianism. The movement grew out of dissatisfaction with the Treaty of Versailles settlement and the eﬀect of the New Cultural Movement. C. H. Lu. The Sino-Indian Border Dispute: A Legal Study (Greenwood Press, Connecticut 1986), p. 6. S. Zhao. ‘China’s Pragmatic Nationalism: Is It Manageable?’ The Washington Quarterly (Winter 2005–2006), p. 135. E. S. Downs and P. C. Saunders. ‘Legitimacy and the Limits of Nationalism: China and the Diaoyu Islands’ 23 (3) International Security (Winter 1998–1999), p. 122. Li Hongzhang was the nineteenth-century oﬃcial forever tainted by his role in the territory’s cession in the late Qing Dynasty (1636–1912). S. Zhao. ‘Chinese Nationalism and Its International Orientations’ 115 (1) Political Science Quarterly (2000), p. 5.

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In the nativist view, the eradication of foreign inﬂuences is the route to revive national strength, and the requisite national regeneration can only occur through isolation and rejection of the outside world.11 China should wall oﬀ foreigners for a real independence, which would be possible only when the Chinese people would be able to maximize internal development and minimize external dependency. Mao Zedong’s policy of zili gengsheng (self-reliance) was consonant with the potent spirit of nativism.12 The idea of nativism is very appealing to Chinese people because China had for about a century been the victim of foreign imperialist expansion.13 Antitraditionalism requests the complete rejection of Chinese traditional culture and calls for the creation of a completely new culture. In practice, it mixes with anti-Western xenophobia. In the Cultural Revolution (1966–1976), for example, the Red Guards14 were mobilized to destroy both the remnants of Confucianism and Capitalism (“Capitalism” in this context has to be understood to mean “Westernism”). It turned out that the Cultural Revolution isolated China almost completely from the rest of the world. Xenophobia is the most prominent feature of the ﬁrst two forms of nationalism. If nationalism with its aversion to foreigners were to continue as guidance of the Chinese policy, it would be impossible for China to use either the ICJ or the ICJ case law to settle its territorial and boundary disputes. Since the 1980s, pragmatism has dominated the thinking of the Chinese people.15 In the pragmatist view, it is justiﬁable to adopt whatever approach may make China stronger. Pragmatic nationalism is driven by national interests. Its orientation in world aﬀairs is assertive in defending and seeking China’s national interests.16 So, China may use the ICJ and other international courts and tribunals to settle its territorial and boundary disputes if its national interests require it. But pragmatic nationalism is so ﬂexible that, in most cases, the Chinese government would rather treat it as a political instrument to cope with its domestic and international problems. In an instrumentalist fashion, pragmatic nationalism without a ﬁxed, objectiﬁed, and eternally deﬁned content has been continually remade to ﬁt the needs of its creators and consumers.17 The political elements in the territorial and boundary disputes may be exaggerated and over-emphasized for political reasons. In that case, the third party’s involvement is indiscriminately labeled as harming

11 12

13 14

15 16 17

Ibid. Ibid. See also S. M. Goldstein. ‘Nationalism and Internationalism: Sino-Soviet Relations’ in T. W. Robinson and D. Shambaugh (eds.) Chinese Foreign Policy: Theory and Practice (Clarendon Press, Oxford, UK 1994), p. 229. S. Zhao, op. cit. (2000), p. 5. In the Great Cultural Revolution (1966–1976), the Red Guards were the student activists who were encouraged to shatter the old world and establish a new world. S. Zhao, op. cit. (2000), p. 10. Ibid., p. 14. Ibid., p. 18.

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Chinese national sovereignty and nationalism again becomes very pervasive in China’s international orientation. Accordingly, the Chinese leaders are very likely to claim again and again that they would rather lose thousands of troops than give up one inch of their land and that they would sacriﬁce and bleed to protect China’s territory. An examination of the role of nationalism in the present disputes over the Diaoyu/Senkaku Islands and the maritime delimitation in the East China Sea between China and Japan reveals the necessity of controlling nationalism. Japan has played a central role in the rise of Chinese nationalism, both as a spur for the development of Chinese state patriotism and as a target for Chinese xenophonia.18 Japan’s invasion of China in the 1930s and wartime atrocities such as the 1937 Nanjing massacre gave rise to popular anti-Japanese sentiment that continues to resonate widely.19 Thus the disputes over the Diaoyu (Senkaku) Islands and the maritime delimitation in the East China Sea can be linked quickly to Chinese nationalism. At present, China’s policy is to develop its economy, so all the government’s strategies are generally based on the principle of taking economic development as the core task. China’s economy largely depends on foreign investment, among which Japanese investment accounts for a very important proportion. Thus in 1990 and 1996, when the nationalists on both sides tried to escalate the disputes over Diaoyu Dao/Senkaku Islands,20 the Chinese government made an eﬀort to work with the Japanese government to prevent the territorial disputes from harming bilateral relations by controlling nationalism. The Chinese government was afraid that excessive nationalism, which may aﬀect the willingness of other states to trade with and invest in China, can stir up demands for assertive international policies that it would not satisfy.21 In early 2005, there was another noticeable antagonism between China and Japan when China began to develop the Chunxiao gas ﬁeld in the East China Sea. The news about the Sino-Japanese conﬂicts over the oil and gas resources in the East China Sea incited Chinese nationalism, and some extremists asserted that Japan was on its second expansion and rise and the territorial and boundary disputes between the two countries should be settled by war.22

18

19

20

21 22

C.-Y. Shih. ‘Deﬁning Japan: The Nationalist Assumption in China’s Foreign Policy’ 50 (3) International Journal (Summer 1995), pp. 543–544. E. S. Downs and P. C. Saunders. ‘Legitimacy and the Limits of Nationalism: China and the Diaoyu Islands’ 23 (3) International Security (Winter 1998–1999), p. 119. In 1990 and 1996, Japanese groups reasserted claims to the Diaoyu Islands and stirred up the disputes. E. S. Downs and P. C. Saunders, op. cit. (1998–1999), p. 121. L. Xiao ‘Zhongri guanxi: jingji zhuyi shidai wu qingya zhanshi (Sino-Japanese Relationship: War Is not a Easy Word at the Economic Age)’ (2005), at [07 Mar. 2008].

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If we for a moment suppose that during the disputes the two governments had not controlled nationalism on both sides, military conﬂicts would have been the result, and there would not have been any possibility of using a third party to settle the disputes peacefully. Nationalist values such as territorial unity and national power provide Chinese people with an independent basis for evaluating their government’s performance.23 The Chinese government appeals to these values and even uses nationalist sentiments for political purposes, such as development of economy, maintenance of internal stability, legitimacy of the government, etc.24 At present, nationalism is one of the sources of the Chinese government’s legitimacy (the other is economic performance). The Chinese government makes tactical shifts between the two sources of legitimacy. When the economy is doing poorly, the government stresses nationalism and blames foreigners. When the economy is doing well, the government emphasizes its successful economic management.25 At least in the short term, economic development goals may be an eﬀective restraint on nationalism.26 Therefore, good economy may imply the possibility of third party’s involvement in settlement of China’s territorial and boundary conﬂicts. But such pragmatic nationalism generates some anxieties about how China will deal with the so-called lost territory. Chinese leaders have managed nationalism successfully in the past, but some foreign experts worry that China’s rising power may mean the exponential increase of nationalism and the ruling out of third party involvement.27 Chinese nationalism may mislead China into a wrong course during the settlement process. In any case, controlling nationalism and disconnecting nationalism from possible third party involvement are important and necessary for peaceful settlement of China’s territorial and boundary disputes. 4.1.2

Adherence to Negotiations and Consultations

Since the founding of the PRC, China has doggedly adhered to face-to-face talks for settlement of its territorial and boundary disputes. In 1955, at the Afro-Asian conference which was held at Bandung, Indonesia, the Chinese premier Zhou Enlai issued a pattern of how Beijing resolved its border disputes: 1) Before negotiating a settlement, the disputing parties should maintain the status quo and recognize the

23

24 25 26 27

J. Townsend. ‘Chinese Nationalism’ in J. Unger (ed.) Chinese Nationalism (M. E. Sharpe, Armonk, N. Y. 1996), pp. 1–30. E. S. Downs and P. C. Saunders, op. cit. (1998–1999), pp. 114–146. Ibid., pp. 121–2. Ibid., pp. 126–7. David Shambaugh states that “as China has grown economically more powerful in recent years, nationalism has increased exponentially,” and predicts that increased Chinese strength “is likely to result in increased defensiveness and assertiveness.” See D. Shambaugh. ‘Containment or Engagement of China?’ 21 (2) International Security (Autumn), p. 205.

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undeﬁned boundary lines as lines yet to be deﬁned; 2) If one round of negotiations cannot produce any results, further negotiations should be held, and these further negotiations should be comprehensive, i.e. cover an entire border; 3) The disputing parties are supposed to negotiate a new border treaty at last.28 Obviously, adherence to negotiations is the most prominent feature of this pattern. Nowadays, adherence to negotiations continues to be a typical feature of China’s framework for settlement of its territorial and boundary disputes. The PRC had been negotiating with the former Soviet Union (Since December 1991 Russia has replaced it) on the territorial and boundary issues for 40 years before the ﬁnal settlement in 2004.29 The Code of Conduct in the South China Sea signed by China and the ASEAN in 2002 states, “the Parties concerned undertake to resolve their territorial and jurisdictional disputes by peaceful means, . . . through friendly consultations and negotiations by sovereign states directly concerned, . . . .”30 The Agreement on Political Guiding Principles for Resolving the Boundary Issue signed by China and India in 2005 also emphasizes that “the two sides will resolve the boundary question through peaceful and friendly consultation.”31 To resolve the dispute concerning the continental shelf/EEZ delimitation in the East China Sea, China has been endeavoring to negotiate a provisional arrangement with Japan pending ﬁnal settlement. Since October 2004, nine rounds of talks have been held between the two countries and the tenth round is being expected. During the second round of talks, which took place in May 2005, China and Japan reached a consensus, agreeing that their disputes shall be resolved through equal negotiations and consultations.32 In August 2005, the principles declared by the Chinese government as the guidelines for settlement of its territorial and boundary disputes also conﬁrmed its principle that any resolution shall be achieved through friendly negotiations and consultations.33 China’s adherence to negotiations and consultations has its cultural roots in Chinese culture, establishing a relationship between the parties is always a top priority. However, “relation”, which is often replaced by the word “connection”, connotes a negative attitude to adjudication. Connection, in Chinese called guanxi, particularly 28

29

30 31

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33

N. Maxwell. ‘Settlements and Disputes: China’s Approach to Territorial Issues’ Economic and Political Weekly (9 September 2006), pp. 3874–81. The ﬁrst round of talk was held in 1964. The second round was from 1969 to 1978. The third one commenced in 1987 and ended in 2004. Art. 4, at [03 Mar. 2008]. R. Walker and K. Renfrew ‘China and India Sign Deal to Settle 40–Year Territorial Dispute’ (12 Apr. 2005), at [8 Apr. 2008]. Xinhua News, at [3 Mar. 2008]. See the statement made by the Chinese Ministry of Foreign Aﬀairs on 31 August 2005, at [8 Apr. 2008].

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emphasizes the informal character to deal with all the issues including disputes between the individuals or groups. Guanxi is governed largely by objective, rather than subjective, considerations, and is more about private than public matters. Once a relationship has been acknowledged, a special connection is understood as having been established. Consequently some special rules would be privately applied to the parties who have connections. Today China endeavours to build up some special connections with neighbouring countries in order to employ these special connections to help resolve the territorial and boundary disputes without third party involvement. China’s adherence to negotiations and consultations also connects with China’s long history of rule of man rather than rule of law. The impression of rule of people leads to the general conception that courts are liable to making biased discretions. In court, judges may consider the speciﬁc facts of the case and tailor a result that is appropriate for the particular parties. Judges may also resolve disputes in ways that serve their own economic or relational interests. More often than not, judges may interpret legal principles in ways that are consistent with their political ideology.34 All the biased discretions have a crucial inﬂuence on judicial decisions. Such a distrust of courts extends to the Chinese attitude to the ICJ, which, from the Chinese viewpoint, is controlled by the West and might give judgments based on biased discretions.35 In the 1960s and 1970s, the composition of the ICJ with judges from Western countries and the practice of these judges to perpetuate vested interests of the Western states really intensiﬁed China’s skepticism about the ICJ. The Court was even viewed as a Western institution designed to serve Western interests. China felt that the composition of the Court did not reﬂect “the main forms of civilization and of the principal legal systems of the world.” Although its attitude to the composition of the Court has been improved since the 1980s, its distrust is not gone, especially in the cases concerning China’s territorial interests.36

34

35

36

P. K. Chew. ‘The Rule of Law: China’s Skepticism and the Rule of People’ 20 Ohio St. J. on Disp. Resol. (2005), p. 63. See also M. Y. K. Woo. ‘Law and Discretion in Contemporary Chinese Courts’ in K. G. Turner (ed.) The Limits of the Rule of Law in China (2000), pp. 163–72. Z. Li. ‘Teaching, Research, and the Dissemination of International Law in China: The Contribution of Wang Tieya’ 31 Can. Y. B. Int’l L. (1993), p. 197. Since the 1980’s, there has been an increase of numbers of judges from the developing counties in the composition of the Court. This change, to some extent, has alleviated the skepticism to the Court from the developing countries including China. The nomination of two Chinese international lawyers – Ni Zhengyu and Shi Jiuyong – as the judges of the ICJ respectively in the 1980s and 1990s encourages China to have an intention to use the ICJ to resolve her disputes concerning international economy, trade, technology, aviation, environment, transportation and culture. This indicates the beginning of change in China’s attitude to the ICJ. Nevertheless, up to now, China has not submitted a single dispute to the ICJ at all. See generally F. Liu. ‘A Discussion about Strengthening the Function of The International Court of Justice against the Background of

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As a result, the PRC has never signed any ad hoc agreement to submit its disputes to the ICJ and continuously makes reservations to any provisions concerning the compulsory jurisdiction of the ICJ upon its signing, ratifying or acceding international treaties. In China’s practice, the terms “negotiation” and “consultation” are often used interchangeably. In fact, there is no clear distinction between them. Nevertheless, the Chinese government often refers to negotiation and consultation as “friendly” negotiation and consultation.37 It seems that in the Chinese understanding negotiation and consultation can and should be friendly, otherwise it would be diﬃcult for the disputing states to keep up their friendly relationship. It also implies China’s reluctance to use other dispute settlement methods. A direct submission of a dispute by one party to arbitration or adjudication without any eﬀort to settle the issue by negotiations is regarded as unfriendly. The Chinese have always considered formal methods of dispute resolution, especially adjudication, as a last resort where friendly relationship between the parties is hardly possible.38 It is undeniable that negotiation boasts some prominent advantages such as ﬂexibility, autonomy and amicability in settling disputes. But we must bear in mind that negotiation as the only and ﬁnal method to settle disputes is not an entirely satisfactory way of ensuring an expeditious and conclusive solution to an international dispute.39 Negotiations cannot guarantee a friendly relationship. In reality, negotiations often become very unfriendly if the parties’ positions are far apart. If no substantial compromise is made, long rounds of negotiation can only highlight the split and cause animosity between the rowing parties. Consequently, hostility prevails over the expected friendliness. The disputing parties can desire to settle their disputes by negotiations, but they shouldn’t reject all the other dispute-resolving methods. Sometimes, the parties need a mediator to facilitate their dialogues without worrying about binding decisions. Sometimes, they may submit their disputes to a third party for a binding decision without delaying settlement. In short, negotiation is merely one method to settle disputes and it is impossible to make it eﬀective in all circumstances. In

37

38

39

Economic Globalization’ Jianghan Forum (August 2004), pp. 109–112. See also H. Wang. ‘China’s Theory and Practice of Peaceful Settlement of International Disputes’ Journal of Henan Normal University (Apr. 2002), at [08 May 2008]. Chew-LaFitte. ‘The Resolution of Transnational Commercial Disputes in the People’s Republic of China: A Guide for U.S. Practitioners’ 8 Yale J. World Pub. Ord. (1982), p. 267. J. P. Brady. Justice and Politics in People’s China: Legal Order or Continuing Resolution (Academic Press, New York 1982). See also R. Nafziger and R. Jiafang. ‘Chinese Methods of Resolving International Trade, Investment, and Maritime Disputes’ 23 Willamette L. Rev. (1987), p. 624. C. M. Fombad. ‘Consultation and Negotiation in the Paciﬁc Settlement of International Disputes’ 1 AJICL (1989), p. 714.

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some cases, without involvement of a third party, resolution would be impossible in the predictable future. China’s adherence to negotiation may be very negative to settlement of at least some of its territorial and boundary disputes.

4.2 4.2.1

Opportunities Changing Attitude towards the ICJ

Although the Chinese government still adheres to diplomatic methods to address its territorial and boundary disputes, China’s recent practice suggests a tendency to change its general attitude to international courts and tribunals. It has abandoned its former practice of rejecting the jurisdiction of any international court and tribunal. From 1949 to the early 1980s, the Chinese government adhered to diplomatic negotiations for settlement of whatever disputes it was embroiled in and rejected the jurisdiction of any international court and tribunal. Although some early SinoSoviet trading agreements contained the provision that the two parties might bring their future disputes to arbitral tribunals for settlement, these provisions became completely meaningless with the deterioration of Sino-Soviet relations in the late 1950s. All the Sino-Soviet disputes including economic and trading disputes were actually dealt with through negotiations and consultations.40 Accordingly, China rejected the jurisdiction of the ICJ openly and assertively. In September 1972, the PRC informed the Secretary-General of the United Nations that China did not recognize the declaration made by the KMT government (the former Chinese government) on 26 October 1946 about the acceptance of the compulsory jurisdiction of the ICJ and considered it defunct. In addition, the Chinese government had never made any special agreement (compromis) with other States to submit disputes to the ICJ.41 When signing, ratifying or acceding to international conventions, China blindly made reservations on the provisions for the jurisdiction of the ICJ. For example, China reserved Article 22 when it acceded to the International Convention on the Elimination of All Forms of Racial Discrimination in 1981.42 The Chinese government made the statement that “the 40

41 42

J. Zhao. ‘Zhongguo heping jiejue guoji zhengduan wenti chutan (A Tentative Discussion about the Chinese Peaceful Settlement of International Disputes)’ (1) Science of Law (2006), p. 102. T. Wang. International Law (Law Press, Beijing 1995), p. 612. Article 22 provides, “any dispute between two or more States Parties with respect to the interpretation or application of this Convention, which is not settled by negotiation or by the procedures expressly provided for in this Convention, shall, at the request of any of the parties to the dispute, be referred to the International Court of Justice for decision, unless the disputants agree to another mode of settlement.” See the Convention at [07 Mar. 2008].

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People’s Republic of China has reservations on the provisions of Article 22 of the Convention and will not be bound by it.” (The reservation was circulated by the Secretary-General on 13 January 1982.)43 China expressly rejected the Optional Clause in the Statute of the ICJ and practically ruled out any compromis or provisions of submitting disputes to the ICJ. From the late 1980s, China began to change its general attitude to international courts and tribunals. In the economic and trading ﬁelds, China has accepted the third party settlement of its international disputes. On 1 July 1992, the Chinese government ratiﬁed the Convention on the Settlement of Investment Disputes between States and Nationals of Other States. That meant that China accepted the jurisdiction of the International Centre for Settlement of Investment Disputes (ICSID). On 15 July 1993 the then Chinese Foreign Minister Qian Qichen sent an oﬃcial letter to the Secretary-General of the Permanent Court of Arbitration (the PCA) informing him of the Chinese decision of resuming all its activities in the PCA and sequentially nominated four renowned Chinese law experts as arbitrators of the PCA. Later in the same year, he sent another letter to the Foreign Minister of the Netherlands declaring that China accepts all the Hague Conventions for peaceful settlement of international disputes.44 Today, two Chinese law experts are still on the list of members of the PCA.45 This tendency has become even more noticeable since China’s entry into the WTO in 2001. On its entry, China without reserve accepted the WTO’s dispute resolution mechanisms, which include various compulsory jurisdictions. Such practice made a sharp contrast with China’s traditional practice of reserving all the provisions related to submitting disputes to a third party for settlement. The recent cases concerning the disputes between China and some other WTO members over the measures aﬀecting imports of automobile parts exempliﬁed China’s will to settle the disputes under the WTO dispute settlement system.46 In March and April of 2006, the EU, the United States and Canada respectively requested consultations with China concerning measures that allegedly aﬀect the importation of automobile parts from these places into China. Subsequently, according to the WTO dispute settlement system, China informed the Dispute Settlement Body (DSB) that it had accepted the request of the EU, the United States and Canada and other member states that had later joined the consultations. On 15 September 2006, Canada requested the establishment of a panel. As a result, on 26 October 2006, the WTO decided to establish a panel to arbitrate

43

44 45 46

See China’s reservation at [07 Mar. 2008]. J. Zhao, op. cit. (2006), p. 100. Mr. Shao Tianren and Dr. Duan Muzheng are now in the list of arbitrators of the PCA. Namely, the EU, the United States and Canada, Japan, Mexico, Australia.

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these disputes.47 This was the ﬁrst time the WTO had made a decision to establish a panel to arbitrate disputes involving China ever since China had joined the organization. Some changes have also occurred in China’s attitude to the ICJ, although it has not accepted the compulsory jurisdiction of the ICJ. In November 1986, the Chinese International Law Association sponsored a conference in Shanghai, discussing what attitude China should hold toward the jurisdiction of the ICJ. More than 130 participants from universities, institutes, foreign administrations and judicial authority gave many positive opinions about the ICJ.48 In 1989, the Chinese government declared that it would abandon the practice of making blind reservations on all the provisions concerning the jurisdiction of the ICJ. In the same year, China began to participate in the discussions between the ﬁve permanent members of the Security Council on how to strengthen the function of the ICJ. In 1994, the year Shi Jiuyong, a renowned Chinese international law expert, was elected to be Judge of the ICJ, the Chinese government made another political declaration that except the cases concerning the essential national interests where negotiation and consultation are adhered to for settlement, China, in general, shall not make any reservation when it signs, ratiﬁes and accedes to international conventions related to economy, trade, science, technology, aviation, environment, transportation, culture and other technical ﬁelds.49 Earlier on, the Cold War had paralyzed the eﬀective operation of the United Nations machinery including the ICJ.50 In the 1970s and the early 1980s, one of the main reasons for China’s negative attitude to the ICJ was its dissatisfaction with the composition of Judges in the ICJ. With the end of the Cold War and the developing countries’ active participation in international aﬀairs, the ICJ has changed profoundly. Now out of the ﬁfteen judges that make up the Court seven are nationals of the developing countries. The cultures and civilizations represented by the Judges today are much more various.51

47

48

49

50

51

See the cases at [07 Mar. 2008]. See the relevant reports at and [03 Mar. 2008]. T. Wang and H. Li. The Chinese International Law Annual Report 1987 (Law Press, Beijing 1988), p. 461. H. Wang. ‘China’s Theory and Practice of Peaceful Settlement of International Disputes’ Journal of Henan Normal University (Apr. 2002), at [08 May 2008]. I. J. Gassama. ‘World Order in the Post-Cold War Era: Relevance and Role of the United Nations after Fifty Years’ 20 Brook. J. Int’l L (1994), pp. 255–338. The present composition of the court is as follows: one from the United Kingdom, one from Jordan, one from Madagascar, one from China, one from Sierra Leone, one from Venezuela, one

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Nowadays, many Chinese international law scholars have realized the important role of the ICJ in helping China to settle its international disputes. They argue that China should be open-minded about the international judicial system.52 Dr. Gao Fengjun pointed out that China’s negative attitude to the ICJ is in contradiction with its promise to respect international law.53 Professor Huang Deming articulated that China should not exclude other peaceful methods when it tries to resolve its territorial and boundary disputes through negotiations and consultations.54 One scholar explained that states need peace and peace needs law and law needs the Court.55 Dr. Zhu Fenglan even suggested that China should use the ICJ or the ITLOS to settle its maritime boundary dispute with Japan if diplomatic negotiations fail.56 Many other Chinese scholars have made similar recommendations.57 It is very likely that the scholars’ recommendation may give the Chinese government a push. 4.2.2

The Dispute Settlement System of the 1982 UNCLOS and China’s Options

The 1982 UNCLOS has its complex dispute settlement system set down in its Articles 279–299 and Annexes V–VIII. The fundamental principle aﬃrmed in the Convention is that any dispute between the parties about the Convention should be resolved by any peaceful means of their choice.58 The Convention allows the disputing parties to choose whatever peaceful means they like to settle their disputes. Nevertheless, the traditional methods of negotiation and settlement through diplomatic channels are encouraged prior to reference to the compulsory procedures

52

53

54

55

56

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58

from the United States, one from Japan, one from Germany, one from Slovakia, one from France, one from New Zealand, one from Mexico, one from Morocco and one from Russia. X. Su. ‘Zhongguo canyu guoji sifa de kunzu yu duice fenxi (What Hinders China from Using International Judicial System: Analysis and Recommendation)’ 36 (3) Journal of East China Normal University: Philosophy and Social Science (May 2004), p. 66. F. Gao. ‘Zhongguo guojifa jiazhi guanxi lun (Analysis of the Value of International Law: from the Chinese Perspective)’ 130 (2) Law Review (2005), p. 78. D. Huang. ‘Zhongguo heping fazhan zhong waijiao zhineng tiaozheng de qianyan falü wenti (The Urgent Legal Problems Concerning Adjustment of the Diplomatic Functions in China’s Peaceful Development)’ 136 (2) Law Review (2006), p. 113. B. Chen. ‘Guoji fayuan zuoyong tantao (On the Function of the International Court of Justice)’ 23 (3) Modern Law Science ( Jun 2001), p. 155. F. Zhu. ‘Zhongri donghai zhengduan ji qi jiejue de qianjing (China-Japan Dispute over East China Sea and Its Resolution in Prospects)’ (7) Contemporary Asia-Paciﬁc Studies (2005), at [08 May 2008]. Y. Jin. ‘Donghai youqi ziyuan zhengyi jiaodian yu jiejue qianjing (Gas and Oil Rivalry in East China Sea and Prospect of Settlement)’, at [07 Mar. 2008]. UNCLOS, Art. 279.

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of Section 2 of Part XV.59 Because this encouragement is in accordance with the Chinese practice of using diplomatic methods to resolve its international disputes, the dispute resolution system is quite welcome to China. As a result, China has been very active in promoting settlement of its maritime delimitation disputes with its neighbours through negotiations and consultations.60 The 1982 UNCLOS is one of an extremely small number of global treaties that prescribe mandatory jurisdiction for disputes arising from the interpretation and application of its terms.61 The Convention can be called one to establish one of the broadest commitments to compulsory arbitration or adjudication yet made. Under the general principle that any dispute between the Parties about the Convention should be resolved by any peaceful means of their choice,62 the Convention clearly provides that no reservations or exceptions may be made to this Convention unless expressly permitted by other articles of this Convention.63 Tommy T. B. Koh, president of the Third United Nations Conference on the Law of the Sea remarked: “The world community’s interest in the peaceful settlement of disputes and the prevention of use of force in the settlement of disputes between States have been advanced by the mandatory system of dispute settlement in the Convention.”64 Compulsory jurisdiction exists to ensure that failure to reach agreement for settling disputes does not result in violent activities. Compulsory dispute settlement under Section 2 of Part XV is available to States for disputes relating to the delimitation of the territorial sea, continental shelf, and EEZ, and to historic title unless States have opted to exclude these disputes by virtue of Article 298(1)(a). To establish compulsory procedures entailing binding decisions, Section 2 of Part XV begins with Article 286: Subject to section 3, any dispute concerning the interpretation or application of this Convention shall, where no settlement has been reached by recourse to section 1, be submitted at the request of any party to the dispute to the court or tribunal having jurisdiction under this section.

Article 282 of the 1982 UNCLOS entails no exception to the principle of compulsory and binding third-party settlement set forth in Article 286. It deals with

59

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62 63 64

N. Klein. Dispute Settlement in the UN Convention on the Law of the Sea (Cambridge University Press, Cambridge 2005), p. 31. China has held many rounds of talks with Japan over the maritime delimitation in the East China Sea. China has engaged into a series of bilateral and multilateral negotiations with the Southeast Asian States over the disputes in the South China Sea. N. Klein. Dispute Settlement in the UN Convention on the Law of the Sea (Cambridge University Press, Cambridge 2005), p. 2. UNCLOS, Art. 279. UNCLOS, Art. 309. United Nations, Oﬃcial Text of the United Nations Convention on the Law of Sea with Annexes and Index, UN Sales No. E.83. V.5, p. xxxiii (1983).

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choice of forum: the means of compulsory and binding third-party settlement set forth in the Convention do not supplant a forum for such settlement otherwise chosen by both parties.65 Other dispute settlement provisions of the Convention reﬂect the same view: the result of compulsory and binding third-party settlement is the essence, and the forum is secondary. China ratiﬁed the 1982 UNCLOS on 7 June 1996, and this progressive step would inevitably have signiﬁcant repercussions on China’s choice to settle its numerous maritime delimitation disputes with the neighbouring States such as Japan, Vietnam, Brunei, Malaysia, Philippines and Indonesia, which have all ratiﬁed the 1982 UNCLOS. The result is that China and its neighbouring States cannot exclude themselves from the dispute settlement system under the 1982 UNCLOS. The PRC made the following declaration when it ratified the 1982 UNCLOS: The People’s Republic of China will eﬀect, through consultations the delimitation of the boundary of the maritime jurisdiction with the States with coasts opposite or adjacent to China respectively on the basis of international law and in accordance with the principle of equitability.66

Not until 25 August 2006 did China explain clearly what its above declaration may mean to the compulsory jurisdiction under Part XV of the 1982 UNCLOS. Understandably, there was some confusion about what this implied at the international level: John Donaldon and Alison Williams felt unclear about whether this declaration excluded the PRC from compulsory dispute settlement.67 Actually this declaration was rather political than legal. Article 298(1) clearly provides that when signing, ratifying or acceding to this Convention or at any time thereafter, a state may, without prejudice to the obligation arising under section 1, opt to exclude the disputes by virtue of Article 298(1)(a) from compulsory dispute settlement under Section 2 of Part XV in writing.68 In the declaration made when ratifying, China did not exclude the compulsory dispute settlement. Article 287(3) clearly provides that “State Party, which is a party to a dispute not covered by a declaration in force, shall be deemed to have accepted arbitration in accordance with

65 66

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UNCLOS, Art. 282. See China’s declaration at [08 Mar. 2008]. J. Donaldson and A. Williams. ‘Understanding Maritime Jurisdiction Disputes: the East China Sea and Beyond’ 59 Journal of International Aﬀairs (Winter 2005), p. 135. The Convention provides for binding dispute-settlement procedures but further allows states, when joining the Convention, to submit a declaration opting out of such procedures for disputes (1) regarding maritime boundaries between neighbouring states, (2) regarding military activities and certain law enforcement activities, and (3) in respect of which the UN Security Council is exercising the functions assigned to it under the UN Charter. See UNCLOS, Art. 298 (1)(a).

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Annex VII.” Accordingly, it is reasonably inferred that China was ready to use the compulsory dispute settlement under the 1982 UNCLOS when it ratiﬁed. This situation existed for 10 years.69 On 25 August 2006, the PRC made an additional declaration under Article 298 after its ratiﬁcation as follows: The Government of the People’s Republic of China does not accept any of the procedures provided for in Section 2 of Part XV of the Convention with respect to all the categories of disputes referred to in paragraph 1 (a) (b) and (c) of Article 298 of the Convention.70

Probably, this additional declaration is the result of the deterioration of SinoJapanese relations in recent years. The rows between the two Asian giants over history books, the Yasukuni shrine, the title to the Diaoyu/Senkaku Islands and the exploitation of the continental shelf in the East China Sea have reduced the bilateral relationship to the lowest level since they re-established their diplomatic relations in 1972.71 According to the Chinese theory and practice, a good relation or a good Guanxi is the premise for the possibility of settling disputes cooperatively and a bad Guanxi leads to confrontation and even conﬂict. From the fact that China did not exclude the compulsory dispute settlement under Part XV of the 1982 UNCLOS in the late 1990s and the early 2000s, we may deduce that the Chinese government had much conﬁdence in its relationship with its neighbour during that period and had the political will to use the compulsory dispute system of the Convention. Although it has made the additional declaration of opting out of the compulsory dispute settlement under Section 2 of Part VX, China is still governed by other parts of the compulsory dispute settlement system under the Convention. Articles 74 and 83 expressly stipulate that the States Parties shall resort to Part XV procedures in the event that no agreement is reached within a reasonable period of time.72 Under Article 298(1)(a)(i) of Part XV, either party to a dispute excluded from mandatory adjudication or arbitration can submit the matter to conciliation provided certain conditions have been met. The ﬁrst condition is that the dispute must be one that has arisen subsequent to the entry into force of the 1982 UNCLOS between the parties to the dispute. The second condition is that no agreement has been reached in negotiations between the parties after a reasonable

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From 7 June 1996 when China ratiﬁed the UNCLOS to 25 April 2006 when China made its additional declaration. See the declaration at [09 Mar. 2008]. The deteriorated Sino-Japanese relation was highlighted in April of 2005 when massive antiJapanese demonstrations were held nationwide in China. UNCLOS, Arts. 74(2) and 83(2).

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period of time.73 The disputing States are under obligation to negotiate to settle the EEZ/continental shelf disputes in the reasonable time. Undoubtedly, a reasonable period of time lapses if one party refuses the other party’s suggestion to negotiate.74 This obligation is one of the major reasons why China never stops negotiating with its disputing states. The conciliation process is compulsory and is not allowed to be reserved. If a State submits the matter to conciliation in accordance with Annex V, Section 2 of the Convention, the other party to the dispute is obliged to submit to such proceedings.75 The conciliation commission is to hear the parties, examine their claims and objections, and make proposals to the parties with a view to reaching an amicable settlement.76 On the basis of the commission’s report, the parties are then required to negotiate an agreement. If the negotiations do not result in an agreement, the parties shall, by mutual consent, submit the question to one of the procedures provided for in Section 2, unless the parties agree otherwise.77 Article 287 under Section 2 of Part VX oﬀers the parties a choice of forum for disputes subject to compulsory and binding settlement under the Convention: the International Tribunal for the Law of the Sea (ITLOS), the International Court of Justice, arbitration, or a special arbitration procedure for certain types of disputes. Under such a settlement system, what would be China’s choice? If negotiations failed, it would be possible for China to choose arbitration. Under the Convention settlement system, arbitration is the automatic forum if the States Parties are not covered by a declaration in force.78 China may prefer arbitration for settlement of its maritime boundary disputes largely due to its cultural inclination79 and the ﬂexibility of arbitration. A long-standing prejudice against litigation in the Chinese culture is still a psychological barrier China must overcome. The ﬂexibility

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76 77 78 79

A question arises as to what constitutes a “reasonable period of time” and whether a State could challenge the competence of the conciliation commission on the basis that eﬀorts at negotiations have not been exhausted or that a “reasonable” time for negotiations has not lapsed. See N. Klein. Dispute Settlement in the UN Convention on the Law of the Sea (Cambridge University Press, Cambridge 2005), p. 259. North Sea Continental Shelf, ICJ 1969, para. 85; United States Diplomatic and Consular Staﬀ in Tehran (United States v. Iran), ICJ 1980, paras. 49 and 52. Article 11 of Section 2 under Annex V provides that: 1. Any party to a dispute which, in accordance with Part XV, section 3, may be submitted to conciliation under this section, may institute the proceedings by written notiﬁcation addressed to the other party or parties to the dispute. 2. Any party to the dispute, notiﬁed under paragraph 1, shall be obliged to submit to such proceedings. Art. 6 of Annex V. Ibid., Article 298 (1)(a)(ii), Section 2, Part VX. Art. 287(3). B. Cheng. ‘Woguo yu haiyangfa gongyue de zhengduan hejie jizhi (China and the Dispute Settlement System under the Convention of the Law of the Sea)’ (10) Contemporary Law Review (2002), p. 107.

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of arbitration appealing to China lies in its secrecy, party control over the composition of the tribunal and the questions addressed in the proceedings. As far as a sensitive issue is concerned, secrecy is the ﬁrst consideration of the Chinese government. Maritime boundary delimitation is so associated with Chinese dignity that Chinese nationalism can be easily stirred up. The Chinese government habitually regards nationalism as an eﬀective instrument to serve its policy.80 When it really wants a third party to arbitrate, keeping the public from the details of the settlement proceedings is seen as essential to preserve China’s internal stability.81 In arbitration, the parties are entitled to decide whether their arbitration will be open to the public. The Chinese government may take advantage of such a right. The party control over the composition of the tribunal is another appealing factor. It has been the Chinese government’s habit to maximize its control over the dispute settlement. It is very unlikely for the Chinese government to submit its disputes to an unfamiliar third party for justice. The party control over the composition of the tribunal at least guarantees that the judges are familiar with the Chinese culture and tradition and without antagonism towards China. China is still suspicious of the so-called justice from tribunals exclusively composed of Western judges. The Chinese attitude towards the ICJ started to undergo some changes in the 1980s and the 1990s because two Chinese international law experts were then elected as Judges of the ICJ.82 Arbitration allows the disputing parties to choose their own arbitrators, so China may prefer arbitration to adjudication. The maritime boundary disputes in which China has embroiled are very complicated. Many of them are related to other disputes such as the titles to some islands and sovereignty issues; for example, the maritime boundary dispute in the East China Sea is closely related to the sovereignty dispute over the Diaoyu/Senkaku Islands between China and Japan and the sovereignty dispute between Mainland China and Taiwan. In the South China Sea, the unsettled titles to many islands between China and Southeast Asian States add much complexity and diﬃculty to the maritime boundary delimitation in that region. Focusing on the disputes liable to compromise and settlement is the premise for China’s submission of its disputes to a third party. Arbitration permits the parties to decide the issues to be addressed and constrains its activities within what has been agreed in the arbitration compromis.

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S. Zhao, op. cit. (2000), pp. 1–33. Retaining the nation stability is the top priority in the present Chinese government’s domestic policy. H. Wang. ‘China’s Theory and Practice of Peaceful Settlement of International Disputes’ Journal of Henan Normal University (Apr. 2002), at [08 May 2008].

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It is often said that the nature of the arbitration process is such that the result is usually a compromise.83 China’s policy prefers a win-win compromised settlement to a sum-zero result in its maritime boundary disputes. For example, China and Vietnam signed an agreement delimiting their maritime boundary in the Gulf of Tonkin (Beibu Bay). The agreement delimited a single territorial sea and continental shelf boundary and established a large common ﬁshing area on either side of the continental shelf boundary.84 It was hailed as a result of compromise and pragmatic considerations.85 Arbitration gives the parties much free room to make a compromise. That is why China was interested in arbitration much earlier than adjudication. In the 1950s, some bilateral treaties between China and the former Soviet Union contained the provisions for submitting their disputes to arbitration. Nowadays, some Chinese scholars predict that arbitration will be an alternative to negotiation for settlement of the maritime boundary dispute in the East China Sea.86 4.2.3 The Political Implications of the ICJ and Other International Courts and Tribunals We have to admit the fact that international law operates in the shadow of power. That means that the power and preferences of states inﬂuence the behavior both of governments and of dispute resolution tribunals.87 How a case is brought to

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A. Aust. Handbook of International Law (Cambridge University Press, Cambridge/New York 2005), p. 443. Agreement on the delimitation of the territorial seas, exclusive economic zones and continental shelves in the Beibu Gulf (Gulf of Tonkin) between the PRC and the Socialist Republic of Vietnam was signed on 25 December 2000 and went in force on 30 June 2004. Ted L. McDorman observes, “The line accepted by the two states in the Gulf of Tonkin is a product of obvious compromise, creativity and the result of pragmatic considerations.” See J. Donaldson and A. Williams, op. cit. (2005), p. 135. Although negotiation and consultation still take priority over other dispute settlement methods in China, some Chinese scholars suggest that it be necessary for China to prepare for arbitration of its maritime boundary dispute in the East China Sea. See Y. Jin, op. cit. (2008); G. Ji. ‘Jiejue haiyue guanxia zhengyi de yingdui celiu (The Strategy on Settlement of Maritime Jurisdictional Disputes)’ 14 (1) Journal of Shanghai Jiaotong Unisersity: Philosophy and Social Science (2006), pp. 11–17; D. Zhang and W. Wu. ‘Lun zhongri donghai haiyu huajie wenti ji qi jiejue (The Sino-Japanese Delimitation Issue in the East China Sea and Its Settlement)’ (4) World Economics and Politics (2006), p. 41; H. Wu. ‘Cong guojifa lun zhong ri diaoyudao zhengduan ji qi jiejue qianjing (The Prospect of Settlement of Diaoyu Islands between China and Japan: From International Law)’ 10 (1) China’s Borderland History and Geography Studies (2001), p. 83. R. O. Keohane, A. Moravcsik and A.-M. Slaughter. ‘Legalized Dispute Resolution: Interstate and Transnational’ 54 (3) International Organization (Summer 2000), p. 458.

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the ICJ in the ﬁrst place naturally involves political decisions.88 The reference of the territorial and boundary cases to the Court and the reception of its judgments depend on political decisions.89 Adjudication and politics are closely entwined for all aspects of the Court’s work, which is manifestly evident in territorial and boundary cases.90 It is also the case for how a case is brought to an international arbitral tribunal. The positive implications of recourse to international courts and tribunals are undoubtedly helpful for a State’s serious consideration of such third party settlements. China’s policy, both internal and foreign, inﬂuences its strategy for the settlement of its territorial and boundary disputes. For the time being and in the foreseeable future, China’s policy can be condensed into one slogan: China’s peaceful rise (or China’s peaceful development).91 Concurrently, a heated discussion about the theory of peaceful rise was brought about in the Chinese academia. But until now the theory has not yet taken clear shape. Some basic issues have been emphasized in the tentative shaping-up that is currently going on. For example, Professor Rao Geping argued that the theory should include China’s capability to recognize and respect the status quo such as the existing international legal system.92 He explained

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P. Magid. ‘The post-Adjudication Phase’ in C. Peck and R. S. K. Lee (eds.) Increasing the Eﬀectiveness of the International Court of Justice (Martinus Nijhoﬀ Publishers, The Hague/Boston 1997), p. 324. J. G. Merrills. ‘The International Court of Justice and the Adjudication of Territorial and Boundary Disputes’ 13 Leiden Journal of International Law (2000), p. 901. Ibid. The theory of China’s peaceful rise was ﬁrst introduced by Zheng Bijian, a senior aide to the Chinese President Hu Jintao, at 2003 Boao Forum for Asia. On 10 December 2003, the Chinese Premier Wen Jiabao delivered a speech at Harvard University in which he announced, “China’s development and rise will follow a peaceful road, which is diﬀerent from some powers’ development road. This road can mean a kind of peaceful rise.” He used the concept of “China’s peaceful rise” to assure that China would not want to take a confrontational policy against the United States. On 26 December of the same year, President Hu Jintao reaﬃrmed that China would stick to a peaceful road for its development and rise. Later, concerned that using the word “rise” may intimidate Washington, as well as some of China’s neighbors, Hu instead used “peaceful development” in his speech at the 2004 Boao forum in Hainan. To reconcile the terms “rise” and “development,” Zheng Bijian, elaborated in his 2005 Boao forum speech “China has chosen strategy to develop by taking advantage of the peaceful international environment, and at the same time to maintain world peace through its development. This is a strategy of peaceful rise, namely, a strategy of peaceful development.” But the detailed content of the China’s peaceful rise was not clariﬁed. S. Zhao. ‘China’s Pragmatic Nationalism: Is It Manageable?’ The Washington Quarterly (Winter 2005–2006), p. 139. See also B. Zheng. ‘China’s Peaceful Rise and New Role of Asia’ China Forum (Winter 2005), p. 3. See also F. Gao. ‘Zhongguo de heping fazhan yu guojifa de jiazhi tixi (China’s Peaceful Development and the Values of International Law)’ 137 (3) Law Review (2006), pp. 104–110. G. Rao. ‘Guoji falü chixu yu zhongguo de heping fazhan (The International Legal Order and China’s Peaceful Development)’ (85) Foreign Aﬀairs Review (Dec. 2005), pp. 48–54.

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that the peaceful rise policy actually indicates China’s willingness to accept the existing international law and international institutions and no intention to challenge them.93 Professor Li Zhaojie pointed out that a peaceful rise would become sustainable on condition that China adheres to the universally accepted principles, rules and institutions of international law.94 From another angle, the present gestation period of the theory can be regarded as an opportunity to shape the theory. What are the positive implications of international courts and tribunals for China’s peaceful rise when it tries to settle its territorial and boundary disputes? My research resulted in three noticeable implications for China. 4.2.3.1 Peace The conﬂicts relating to territory allocation and boundary delimitation are the most dangerous disputes, as they lie at the very heart of sovereignty. In addition, resource-rich territory is especially diﬃcult to relinquish for the disputing States. Accordingly, many of these disputes easily escalate into violence when the disputing parties just focus on the lucrative prospect of its exclusive exploitation of the rich natural resources in the disputed areas. The zero-sum nature of these disputes over territory makes negotiations particularly diﬃcult and poses a noticeable threat to both international and regional peace. In fact, China was involved in many conﬂicts that were the direct results of territorial and boundary disputes, such as the Sino-Indian War in 1962, the armed clashes on the Sino-Soviet border in 1969 and the Sino-Vietnamese War in 1979. Robert Mandel describes the dangerous nature of territorial and boundary disputes as follows: The isolated, competitive nature of these disputes causes them in a sense to become “lightning rods” for the anarchy in the international system. Though their focal point is perhaps the clearest and most concrete of any international conﬂict – the simple division of land – border disputes may provide one of the toughest roadblocks to the development of eﬀective policies for world peace.95

It is more likely for the States that have been embroiled in these disputes to initiate a diplomatic bargain for a possible settlement. But in many cases this has turned out to be fruitless. In order to avert war, it is reasonable for States to accept the concept that unsuccessful eﬀorts to solve the problem diplomatically should lead to a commitment to let a third party arbitrate or adjudicate the border between states.

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95

Ibid. This idea was presented by Professor Zhaojie Li in his speech of Chinese Perspective of International Law, p. 17. R. Mandel. ‘Roots of the Modern Interstate Border Dispute’ 24 (3) Journal of Conﬂict Resolution (Sep. 1980), p. 429.

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This is true irrespective of whether we look at all cases of a shared border or only at those cases in which there was a territorial dispute.96 J.G. Merrills concluded: The fact that cases about boundaries and territory provide much of the business of international courts and tribunals puts such disputes among those which national authorities may well be prepared to litigate. Evidently, therefore, disputes of this type are justiciable not just in the legal sense that they can in theory be settled by arbitration or adjudication, but also in the political sense that ever so often they are so settled.97

The ICJ has indeed made a useful contribution to the peaceful settlement of disputes. Since its establishment it has rendered decisions in 78 cases and 25 advisory opinions. As of October 2006, sixty-seven states had their declarations accepting its compulsory jurisdiction. A perusal of the kinds of issues that have come before the Court in the exercise of its contentious jurisdiction shows that governments have prepared to bring to it matters such as maritime boundaries, sovereignty over frontier lands, jurisdiction over the continental shelf and frontier disputes. Amongst the factors providing an incentive to refer those territorial and boundary cases to the ICJ in recent years was that some long-standing disputes badly needed settling.98 Although it is noticeable that a number of states have made Optional Clause declarations in which they exclude from the Court’s jurisdiction disputes relating to territory, boundaries and similar matters,99 the Court is attracting more and more developing countries to submit their territorial and boundary disputes to the Court.100 As Judge Sir Hersch Lauterpacht stated, “[I]t would appear that the primary purpose of the International Court . . . lies in its function as one of the instruments for securing peace in so far as this aim can be achieved through law.”101 The court of the Nicaragua Case noted that the purpose of judicial settlement is just to promote the peaceful settlement of disputes.102

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B. A. Simmons. ‘Capacity, Commitment, and Compliance: International Institutions and Territorial Disputes’ 46 (6) Journal of Conﬂict Resolution (Dec. 2002), p. 840. J. G. Merrills. op. cit. (2000). Ibid. J. G. Merrills. ‘The Optional Clause Revisited’ 64 BYBIL (1993), pp. 234–7. See also the recent declarations of Poland (1996), Yugoslavia (1999) and Nigeria (1998). Since the Nicaragua Case, declarations made by developing countries have increased, reﬂecting a growing conﬁdence in the Court since the 1980s. Many cases involved territorial and boundary disputes. For example, the cases of Maritime Delimitation in the Black Sea (Romania v. Ukraine) (2004–), Sovereignty over Pedra Branca/Pulau Batu Puteh, the Middle Rocks and South Ledge (Malaysia v. Singapore) (2003–), Frontier Dispute (Benin/Niger) (2001–), Territorial and Maritime Dispute (Nicaragua v. Colombia) (2001–2005), Maritime Delimitation between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras) (1999–). H. Lauterpacht. The Development of International Law by the International Court (Praeger, New York 1958), p. 3. ICJ Reports 1984, p. 434, para. 93.

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Ulysses S. Grant maintains that arbitration between states would help to settle their disputes and to preserve peace among them.103Arbitration is sometimes found even more appealing because it can mean more than general peace − without war. It is regarded as a method that can make the disputing parties maintain good relations even after settlement of disputes. An arbitration process may require friendly negotiation and consultation between the parties before resorting to the arbitral process. These informal contacts usually lay a good foundation for a mutual understanding. A reconciled solution from arbitration tends to preserve the relationship rather than damage the relationship between the disputing parties. Even if a particular agreement only envisages negotiations in its disputes settlement clauses, it does not necessarily mean exclusion of third party procedures because the parties could subsequently agree on such other methods of settlement if they deem necessary.104 International arbitration or adjudication aﬀords an attractive option for a government that has an interest in resolving a territorial dispute and intends to maintain regional or international peace.105 4.2.3.2 Co-operation Nowadays, the logic of collective action convinces self-interested states that cooperation better serves their longer-term interests.106 Co-operation is the joint action of two or more subjects of international law or other international bodies, and means more than ‘coexistence’ or ‘co-ordination’. It is the proactive action serving objectives that cannot be attained by a single actor. International co-operation is one of the fundamental principles in the UN Charter.107 A general obligation for states to co-operate in dispute settlement is asserted in the Friendly Relations Declaration,108 in which Article 5 provides: States shall seek in good faith and in a spirit of co-operation an early and equitable settlement of their international disputes by any of the following means: negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional arrangements or agencies or other peaceful means of their own choice, including good oﬃces. In seeking such a settlement, the parties shall agree on such peaceful means as may be appropriate to the circumstances and the nature of their dispute.109

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109

Ibid., p. 46. C. M. Fombad, op. cit. (1989), p. 714. B. A. Simmons, op. cit. (2002), p. 834. R. O. Keophane. ‘International Institutions: Two Approaches’ 32 Int’l Stud. Q. (1988), p. 379. The UN Charter, Art. 1(3); Chap. IX. Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations (Annex to GA Res. 2625 (XXV) of 24 October, 1970, 9 ILM (1970), p. 1292 et seq.). See the Declaration at [10 Mar. 2008].

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With the general obligation to settle their disputes peacefully, states are entitled to choose their own settlement schedule and methods. Such a pattern is quite weak in co-operation. The free choice easily results in an uncooperative situation in which one party may take the view that only negotiations can bring about a satisfactory solution, while the other party may consider that a court judgment constitutes the only satisfactory mode of settlement.110 More likely, a dispute reaches an impasse when neither side would like to compromise. Without support by the institutionalized settlement mechanisms in which courts and tribunals are important components, cooperation may easily become mere lip-service and empty in action, and thus dispute settlement would very likely depend on power instead of justice in the end. The methods of peaceful resolution are designed to prevent a dispute from escalating into a conﬂict.111 The successful control of a conﬂict – not necessarily its resolution – seems to lie in the ability to avoid running short of viable alternatives.112 If a State claims negotiation, which demands a high degree of cooperation, as its sole way to settle disputes, its attitude toward cooperation becomes unpredictable. Negotiation power is often envisaged by weak parties as a kind of potential threat and thus, in many cases, may impede cooperation. Consent to arbitration or adjudication is an objective indicator of the disputing parties’ willingness to cooperate in dispute settlement. In a judicial or an arbitral proceeding, the obligation to cooperate becomes an obligation erga omnes partes. Before a court, non-appearance of one party, usually of the defendant, cannot frustrate the process of litigation. In 1986, the Nicaragua case was confronted with the refusal of the United States to appear before the Jurisdiction of ICJ, but ICJ pushed on the proceeding in absence of the United States relying on Article 53 of the Statute of the ICJ, which provides: “Whenever one of the parties does not appear before the Court, or fails to defend its case, the other party may call upon the Court to decide in favour of its claim.”113 In arbitration, the failure to appoint the national arbitrator by one of the parties to the dispute, or to withdraw him under some pretext in the course of the proceeding, does not prevent the tribunal from rendering a binding award. States to dispute sometimes delay arbitration on purpose. For example, during the work of the Iran-US Claims

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B. Simma. (ed.) The Charter of the United Nations: A Commentary, vol. 1 (2 edn. Oxford/New York 2002). J. O’Brein, op. cit. (2001), p. 633. R. D. Hoyos. ‘Islas Malvinas or Falkland Islands: The negotiation of a conﬂict, 1945–1982’ in M. A. Morris and V. Millan (eds.) Contolling Latin American Conﬂicts (Westview Press, Boulder, Colarado 1983), p. 185, pp. 192–3. Case Concerning Military and Paramilitary Activities in and against Nicaragua, Merits (Nicaragua v. USA), ICJ Reports 1986, pp. 142–3, para. 285.

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Tribunal, Iran very frequently forced its arbitrators to resign.114 Such an obstruction leads to what is called a truncated tribunal. It is to be assumed that parties providing for arbitration do not intend that either of the parties could unilaterally frustrate arbitration by withdrawing its arbitrator.115 Consequently, cooperation in dispute settlement depends on a more institutionalized arrangement like the one in the Charter of Paris that can help the disputing parties to build up their conﬁdence in a cooperative interaction. The Charter of Paris tries to establish ‘appropriate mechanisms for the peaceful resolution of any dispute that may arise’ and undertakes ‘to seek new forms of co-operation in this area, in particular a range of methods for the peaceful settlement of disputes, including mandatory third-party involvement’.116 International courts and tribunals in fact are capable of pushing States to settle their sensitive territorial and boundary disputes in a peaceful and cooperative way. 4.2.3.3 Development The UN Charter entitles the disputing parties to decide when and how to settle their dispute in a peaceful way. Recourse to a court or a tribunal is optional. The dispute could have remained on the simple request-refusal-negotiation level.117 Because of this freedom, the States involved in a territorial dispute or a boundary dispute, as a rule, examine their motives for settling the dispute. Beth A. Simmons, based on her theoretical and empirical studies, concluded that accumulation of opportunity costs (e.g., foregone trade and investment) might provide the motivation for seeking an authoritative third-party ruling on a speciﬁc territorial or boundary case.118 She found that countries’ increasing recognition of the value of being “trading states” has likely enhanced a willingness to settle disruptive territorial claims.119 States also have an economic incentive to resolve maritime disputes in order to provide the companies interested in exploring for hydrocarbons with certainty and exclusivity of title.120 Logically, the desire to develop bilateral trading and economy may motivate the disputing States to settle the disputes that have negatively aﬀected their relations.

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G. H. Aldrich. The Jurisprudence of the Iran-United States Claims Tribunal (Oxford University Press, New York 1996), pp. 9–43, 458–63. S. M. Schwebel. International Arbitration: Three Salient Problems (Grotius Publications Limited, Cambridge 1987), pp. 214–15. Charter of Paris for a New Europe of 21 November 1990, under the heading ‘Guidelines for the Future’ 30 ILM (1991), p. 201. J. Collier and V. Lowe, op. cit. (1999), p. 5. B. A. Simmons, op. cit. (2002), pp. 829–56. Ibid. N. Klein. Dispute Settlement in the UN Convention on the Law of the Sea (Cambridge University Press, Cambridge 2005), p. 255.

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It would be ideal if the disputing parties could share common sense and reach a satisfactory agreement through negotiations and consultations. But there are many cases in which the disputing States ﬁnd themselves in a dilemma: on the one hand, they are eager to resolve some disputes for economic development, while on the other hand, they hardly expect a good solution in a reasonable time out of negotiations. For example, China and Japan are both eager to exploit the oil and gas in the disputed continental shelf between them, but nine rounds of bilateral talks resulted in no substantial progress. During negotiations, the parties may not be guided by legal principles or legally relevant factors a court might examine. Instead, they are guided by a host of other factors a tribunal might well ignore such as relative power and wealth, the state of their relations, security and foreign policy objectives, convenience, and concessions unrelated to the boundary. 121 An ancient Chinese book named A Book for Merchants122 explained the importance of settling title disputes in a ﬁgurative way: the fact that a running rabbit lures a hundred chasing men after it is not attributable to the possibility that a rabbit can be divided into a hundred pieces for allocation, but to the issue that the ownership of that rabbit is not settled, and meanwhile, at the market where numerous rabbits are on sale, no one dares to plunder because the title to the rabbits is undisputed.123 In fact, settlement of territorial and boundary disputes can defuse the violent struggle and promote an overall economic cooperation. Thus, the commitment to arbitrate a territorial or boundary dispute by a court or a tribunal appears to be closely tied to the purpose of economic development. The settlement of the dispute between Bahrain and Qatar is a good example for economic development beneﬁting from a binding decision. Before the settlement of their territorial and boundary disputes, Qatar and Bahrain had tried to negotiate with foreign companies about oil concessions in the disputed area, but the lack of border delimitation between them had frustrated such negotiations. In the 1980s, some incidents between the two forces almost brought the two countries to war. On 25 December 1990, through the good oﬃces of Saudi Arabia the two states signed an agreement in which they agreed to solve their problem by negotiations at ﬁrst. If they would not be able to negotiate a settlement by the deadline, they would refer the disputes to the ICJ.124 In March 2001, the ICJ delivered its judgment and helped the disputing states to resolve the dispute over sovereignty of the disputed islands and to draw a single maritime boundary between them.125

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Ibid. The book is named Shangju shu (<商君书>) in Chinese. The Chinese version is: “一兔走, 百人逐之, 非以免可分以为百, 由名分未定。夫卖兔者满市而盗不敢取, 由名分已定也°” A. Razavi. Continental Shelf Delimitation and Related Maritime Issues in the Persian Gulf (Martinus Nijhoﬀ Publishers, The Hague/Boston 1997), pp. 229–32. Maritime Delimitation and Territorial Questions between Qatar and Bahrain, I.C.J. Reports 2001, p. 40.

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The Court’s decision put an end to the disputes that had been constant irritants in their relations for over sixty years. With the settlement of their territorial and boundary disputes, both sides moved swiftly to open a new chapter of bilateral understanding and exploit the commercial potential in their newly deﬁned relationship. Until the issue of sovereignty was resolved, Bahrain and Qatar had agreed on freezing search for oil and gas in the disputed area. With the Court’s ruling, both sides quickly started exploring their side of the maritime border. The international community also welcomed this peaceful resolution.126 Many recent cases provide further good illustrations. Before 1992, the longstanding territorial dispute between Honduras and El Salvador had stunted the two countries’ economic relations. The settlement of the territorial dispute by the ICJ in 1992 has opened the way for bilateral trade.127 On 6 December 2001, Nicaragua instituted proceedings before the ICJ against Colombia over a dispute concerning territorial questions and maritime delimitation in the Western Caribbean. The ICJ was entrusted with settling the legal disputes between the two states. There have been tremendous beneﬁts from getting their borders settled. Nicaragua’s bilateral trade patterns with Honduras and Colombia reveal how unresolved territorial disputes aﬀect bilateral trade. Colombia, with whom Nicaragua has not resolved a speciﬁc territorial dispute, accounts for a much smaller proportion of Nicaragua’s trade than the trade with Honduras, with whom Nicaragua has resolved a territorial dispute by the ICJ.128 In sum, international courts and tribunals are created and maintained for the purposes of international peace, cooperation and development. In 2004, the former Chinese Minister of Foreign Aﬀairs Li Zhaoxing also used these three words to summarize the goals of China’s foreign policy at the General Debate of the 59th Session of the United Nations General Assembly.129 So it is logical to conclude that China’s peaceful policy should include proper roles for international courts and tribunals in settling its territorial and boundary disputes.

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The United Nations Secretary-General, Koﬁ Annan, congratulated Bahrain and Qatar, saying “their acceptance of the Court’s judgment has set an excellent example for other states on how disputes of this nature should be resolved.” [11 Mar. 2008]. B. A. Simmons, op. cit. (2002), p. 832. Ibid. See the Chinese statement at [11 Mar. 2008].

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Outlines of the Proposed Framework

Some tendencies in China are positive for a new framework for settlement of China’s territorial and boundary disputes. Although it is unrealistic to design one dispute resolution framework suitable for all China’s territorial and boundary disputes, it is possible and necessary to design a general framework as guidance. In general, the new proposed framework is a three-phase process: two diplomatic and one judicial or quasi-judicial. In the ﬁrst phase, the two parties are supposed to settle their dispute through negotiations and consultations. It would be an ideal result if they could negotiate a settlement. If the parties fail to reach a settlement through negotiations, they need move to the second phase, in which they are supposed to make some arrangements. For example, they need to agree to use relevant principles and rules elaborated by the ICJ, or other international courts and tribunals, and then restart talks on that new basis. They may also agree to develop the disputed area jointly regardless of the issue of sovereignty or title. Whatever arrangements are made, one of the main purposes is to increase the parties’ political will and conﬁdence. The third phase is called the judicial or quasi-judicial phase. That means that if the disputing parties cannot resolve their dispute in the process of the ﬁrst two phases, the parties need make a special agreement to submit their dispute to a third party for settlement. The third phase is not always necessary, but it is quite essential to have this phase in mind in the assumed new framework. One party may propose a special agreement providing that the two parties shall submit the maritime delimitation dispute to an arbitral tribunal like the International Tribunal for the Law of the Sea or an international court like the ICJ if they fail to reach a boundary agreement within a limited time. It would be diﬃcult for the other party to refuse this proposal and suspend the settlement because this act would inevitably damage her international reputation. In this phase, the parties also are more aware of their claims and legal justiﬁcations. Thus, this phase can give another basis for the parties to negotiate. It would be more likely for them to make a compromise if they would not like to go to a third party. Meanwhile, this phase combined with the previous phases can help the parties to build up their conﬁdence in submitting their dispute to a third party. Under the guidance of this general pattern, three new possible speciﬁc frameworks shall be discussed in the following chapters respectively for settlement of the maritime boundary dispute in the East China Sea, the sovereignty disputes in the South China Sea and the Sino-Indian border disputes.

Part III Case Study of China’s Current Territorial and Boundary Disputes

Chapter 5 The Sino-Japanese Disputes in the East China Sea 5.1

History of Disputes

In June 2007, when the ninth round of East China Sea Talks between China and Japan failed in Tokyo, the spotlight was once again on the disputes in this area.1 The semi-enclosed East China Sea, with an estimated area of 480,000 square miles, borders on the west with the PRC, on the east with Japan, on the north with South Korea and on the south with Taiwan. A small group of uninhabited drying rocks, islets and islands located in the southern part of the Sea are the so-called Diaoyu Islands or Senkaku Islands.2 Actually, the islands, composed of ﬁve small islands and three rocky outcrops, have a total land area of only 6.3 square kilometers. The biggest island named Diaoyudao (Tiaoyutai) in Chinese and Uotshuri-Shima in Japanese is just 4.3 square kilometers.3 They are 200 nautical miles east of the China mainland coast, 92 nautical miles from Taiwan and about 200 nautical miles southwest of Okinawa, severed from the Ryukyu Islands by the deep Okinawa Trough to the southeast.4

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No substantial breakthrough was made at the eighth round of talks and this stalemate is predictable in the near future. BBC News at [12 Mar. 2007]. More background information is available at [12 Mar. 2007]. The Chinese call the disputed islands “Diaoyu Dao” or “Tiao yu tai”and Japan calls them “Senkaku Gunto”. To be impartial, I thereafter call them “Diaoyu/Senkaku Islands”. The eight tiny islands are Diaoyu Dao (Uotshuri-Shima in Japanese, 4.319km²), Huangwei Yu (Kuba-shima, 1.08km²), Chiwei Yu (Taisho-Kojima, 0.154km²), Nanxiao Dao (Minami Kojima, 0.463km²), Beixiao Dao (Kita Kojima, 0.302 km²), Dabeixiao Dao (Okino Kitaiwa), Dananxiao Dao (Okino Minamiiwa), Feilai Dao (Tobise). T Okuhara, 15 Japanese Annual of International Law (1971), p. 106. Zhongguo Diminglu (Gazetteer of China), Beijing: Ditu(map) Publisher, 1983. The Okinawa Trough borders the continental shelf in the west and the Ryukyu arc in the East. The Trough is the most striking geophysical character of the seabed of the East China Sea in terms of its location, size and depth. The Trough reaches depths greater than two thousand meters and is therefore much deeper than continental shelves that extend between one and three hundred meters below sea level. See A. Couper. (ed.) The Times Atlas of the Oceans (Van Nostrand Reinhold Co., New York 1983). See also K. F. Royer. ‘Japan’s East China Sea Ocean Boundaries: What Solutions Can a Confused Legal Environment Provide in a Complex Boundary Dispute’ 22 Vand. J. Transnat’l L.

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In sum, the major disputes in which China has embroiled with Japan in the East China Sea consists of two: the maritime delimitation in the East China Sea and the sovereign status of the Diaoyu/Senkaku Islands.5 Compared with the territorial dispute over the Diaoyu/Senkaku Islands, which is actually a legacy of history, the maritime delimitation dispute is quite new because they are mainly due to diﬀering interpretation of the 1982 UNCLOS.6 In fact, the two disputes are inextricably intertwined because the maritime delimitation concerns the issue of which country has the right to use the Diaoyu/Senkaku Islands as the baseline of its territorial sea delimitation.7 Obviously, primarily regional interests in oil and gas resources that may lie under the seas drive the two major disputes. The Diaoyu/Senkaku Islands issue did not re-surface until 1969 when the Economic Commission for Asia and the Far East of the United Nations Economic and Social Council reported that the continental shelf of the East China “might contain one of the most proliﬁc oil and gas reservoirs of the world, possibly comparing favourably with the Persian Gulf.”8 Then both China and Japan had high expectations that there might be large hydrocarbon deposits in the waters oﬀ the Diaoyu/Senkaku Islands. The Law of the Sea at that time emphasized the theory of natural prolongation in determining continental shelf jurisdiction. Ownership of the Diaoyu/Senkaku Islands would permit the owner to a large area of the continental shelf that may have rich sources of gas and oil.9 Such a dispute is obviously related to the awakening interest by the world’s states in developing oﬀshore energy resources to meet the demands of their economies.10

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(1989), p. 589; Y. Qin, Y. Zhao and L. Chen. (eds.) Geology of the East China Sea (Science Press, Beijing 1996), pp. 1–3. Professor Ji Guoxing states succinctly, “The controversy [between China and Japan] involves two dimensions: territorial sovereignty over islands, and relevant jurisdictional rights and interests in maritime demarcation.” See G. Ji. ‘Maritime Jurisdiction in the Three China Seas: Options for Equitable Settlement’ Working paper of Institute on Global Conﬂict and Cooperation, San Diego (October 1995), at [15 Apr. 2008]. The UNCLOS entered in force on 16 November 1992. China ratiﬁed it on 7 June 1996 and Japan ratiﬁed in on 20 June 1996. Japan even unilaterally uses the Diaoyu/Senkaku Islands as its baseline to demark its territorial sea. See Y. Shi. ‘Neighbors at Odds’ 49 (13) Beijing Review (30 Mar. 2006), at: [08 May 2008]. Committee for Coordination of Joint Prospecting for Mineral Resources in Asian Oﬀshore Areas of the Economic Commission for Asia and the Far East, Report, Sixth Session 10, U.N. Doc. E/CN./L.239 (1969). W.-C. Lee. ‘Troubles under the Water: Sino- Japanese Conﬂict of Sovereignty on the Continental Shelf in the East China Sea’ 18 Ocean Dev. & Int’l L. (1987), p. 586. R. W. Smith and B. L. Thomas. ‘Island Dispute and the Law of the Sea: An Examination of Sovereignty and Delimitation Disputes’ 2 (4) Maritime Brieﬁng (1998), p. 15.

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Before 1970, Japan and the Republic of China (the ROC or Taiwan) had been carrying on a quarrel over the Diaoyu/Senkaku Islands at a private level.11 In September 1970, one year after the conﬁrmation of petroleum deposits around the Diaoyu/Senkaku Islands, the ﬁrst overt territorial dispute between Japan and the PRC was caused by the Japanese assertion of military control over the islands.12 In the same month, to answer a press question, the US Department of State spokesman said that the United States intended to return the Senkaku Islands to Japanese administration under the Nixon-Sato Communiqué agreeing to Okinawa Reversion on November 21, 1969.13 The Ryukyu Security Forces, a prefecture of Japan, accordingly took actions to drive oﬀ the Chinese ﬁshermen who used them as ﬁshing grounds.14 On 4 December 1970, the PRC asserted its claim to the sovereignty of the Diaoyu/Senkaku Islands over its central broadcasting radio and condemned the transaction between the U.S. and Japan.15 On 29 December, in its oﬃcial newspaper People’s Daily, China proclaimed, “it would never permit the U.S. and the Japanese reactionaries to annex China’s sacred territory Diaoyu Islands and other islands” and “the Chinese Government and people will absolutely not tolerate these crimes of encroachment upon China’s sovereignty.”16 On 23 February 1971, to combat the Japanese claim, the ROC (Taiwan), which also declared its representation for China, stressed its oﬃcial claim to the sovereignty of the Diaoyu/Senkaku Islands.17 Since 1970 China has periodically continued to lay claim to the Diaoyu/Senkaku Islands as well as the resources of the continental shelf surrounding them. In May 1970, China re-condemned the arrangement of Diaoyu/Senkaku Islands between Japan and the U.S.18 In June 1971 when Japan and the U.S. signed the Okinawa Reversion Treaty, China protested immediately and in December declared,

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T. R. Regland. ‘A Harbinger: The Senkaku Islands’ 10 San Diego L. Rev. (1972–1973), p. 665. Ibid. USDOS (1969), pp. 551–9. See also Chronology of Events relating to the Status of the Senkaku Islands, in S. Lee. ‘Territorial Disputes among Japan, China and Taiwan Concerning the Senkaku Islands’ 3 (7) Boundary & Territory Brieﬁng (2002), pp. 6–7. T. R. Regland, op. cit. (1972–1973), p. 665. See Chronology of Events relating to the Status of the Senkaku Islands, in S. Lee, op. cit. (2002). People’s Daily (Renmin ribao), 29 December 1970. On 23 February 1971, Wei Tao-ming, Foreign Minister of the ROC, claimed, “Regarding sovereign right on Tiao-yu-tai islets, we disagree with the Japanese Government in the latter’s claim that they are part of Japanese Nansei Gunto. . . . Our views and position on this issue have been repeatedly communicated to the Japanese Government. What is involved in case of the Tiao-yu-tai islets is sovereign rights and we shall not yield even inch of land or piece of rock. Our government will not waver in its determination on this matter. . . . .” USDOC (1970d). See also S. Lee, op. cit. (2002), pp. 11–2. People’s Daily (Renmin ribao), 1 May 1971.

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“We would never permit the U.S. and the Japanese reactionaries to annex China’s sacred territory Diaoyu Islands and other islands by making use of the Okinawa Reversion swindle . . . and make it a fait accompli.”19 The Chinese oﬃcial protest against Japan’s claim to the islands was also in a letter sent by Huang Hua, the head of the Chinese United Nations delegation, to Secretary-General Kurt Waldheim in May 1972.20 Given the complexity and sensitivity of the issue, Chinese and Japanese leaders agreed on the policy of “shelving the territorial disputes” when they signed the Sino-Japanese Treaty of Peace and Friendship in 1978.21 Starting from the early 1990s, the rapid development of economy in both China and Japan urged the two countries to explore the new sources of energy for their industry, so the dispute over the Diaoyu/Senkaku Islands, hailed as another “Persian Gulf,” ﬂared up once again. In September 1990, the Japanese press reported that the Japanese government was preparing to recognize the lighthouse, which was erected on the main Diaoyu Island by the right-wing Japan Youth Federation in 1978 and was repaired by the group in 1989, as an “oﬃcial navigation mark.”22 This immediately evoked the protest from both Beijing and Taipei.23 On 25 February 1992, China promulgated the Law of the People’s Republic of China on the Territorial Sea and the Contiguous Zone, which included the Diaoyu/Senkaku Islands as its territory. On 14 July 1996, the dispute was once again highlighted by the fact that the Japanese right-wing group erected another lighthouse. The Japanese government’s

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People’s Daily (Renmin ribao), 31 December 1971. The Huang Hua letter protested the inclusion of the Diaoyu Islands with the property being returned to Japan by the United States in the Okinawa Reversion Treaty, saying that “it should be pointed out in particular that in their agreement concerning the Ryukyu Islands . . ., the U.S. and Japanese Governments openly included China’s territory the Diaoyu and other islands in the ‘reversion zone,’ which is a serious violation of the territory and sovereignty of the People’s Republic of China . . . . It is entirely illegal and null and void for the U.S. and Japanese Governments to make an illicit transfer between them of China’s territory. The Chinese Government and people will never accept it.” Peking Review, 26 May, 1972, p. 15. During the negotiation to sign the Friendly Treaty in 1978, both the Chinese and Japanese governments tried to play down the dispute of the Diaoyu/Senkaku Islands, which would probably have provoked strong, negative eﬀects on the achievement of the Treaty. See C.-J. Lee. ‘The Making of the Sino-Japanese Peace and Friendship Treaty’ 52 (3) Paciﬁc Aﬀairs (Autumn 1979), pp. 420–45. See also D. Tretiak. ‘The Sino-Japanese Treaty of 1978: The Senkaku Incident Prelude’ 18 (12) Asian Survey (Dec. 1978), pp. 1235–49; Y. Shi, op. cit. (2006). Kyodo, September 29, 1990, in FBIS, Daily Report: East Asia, October 2, 1990, pp. 11–2; October 23, 1990, p. 5. See also S. Moﬀet. ‘The Right and Its Wrongs’ Far Eastern Economic Review (21 November 1996), p. 30. Taipei Central News Agency, 19 October 1990 in FBIS-CHI, October 22, 1990, pp. 55–6; and Japanese broadcast from Beijing, October 19, 1990, in FBIS-CHI, October 22, 1990, p. 7. See also E. S. Downs and P. C. Saunders. ‘Legitimacy and the Limits of Nationalism: China and the Diaoyu Islands’ 23 (4) International Security (1998–1999), pp. 128–9.

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response to this incident at a press conference denoted that the Diaoyu/Senkaku Islands was “Japan’s territory”, and this response infuriated the Chinese government, which immediately declared, “[T]he event of erecting a lighthouse on the island is serious encroachment upon China’s territorial sovereignty” and demanded the Japanese government’s action to stop it.24 On 20 June 1996, Japan ratiﬁed the 1982 UNCLOS, declaring a 200-nautical mile exclusive economic zone that includes the Diaoyu/Senkaku Islands. In August, Japanese Foreign Minister Yukihiko Ikeda reaﬃrmed Japan’s claim to the islands in discussion with Hong Kong oﬃcial, saying, “The Senkaku Islands have always been Japan’s territory; Japan already eﬀectively governs the islands, so the territorial issue does not exist.”25 Immediately, China’s Foreign Ministry spokesperson Shen Guofang condemned Ikeda’s remarks and the People’s Daily published an editorial declaring that China would not give up its sovereignty over the islands.26 In September, the Chinese Foreign Ministry lodged a strong protest with the Japanese government, and warned that if the Japanese government would not take measures to prevent the right-wing groups from infringing on China’s sovereignty, the situation would become more serious and the issue more complicated.27 At present, Japan still controls the Diaoyu/Senkaku Islands, but the Chinese government has not relinquished its claim to the Diaoyu/Senkaku Islands. Both China and Japan ratiﬁed the 1982 UNCLOS in June 1996. Under the Convention that entered into force after 1994, a coastal state may lay claim to at least 200 nm (370A km) of jurisdiction, whether the claim is based on a continental shelf or an exclusive economic zone (EEZ). The distance between the Chinese and Japanese landmasses nowhere exceeds 400 miles, so that unilateral claims naturally overlap. The dispute over the delimitation of the East China Sea suddenly became hot in 2005 simply because the Japanese government raised a question about China’s Chunxiao gas ﬁeld, located on the Chinese side according to the median line proposed by Japan in the East China Sea, alleging that it could siphon oﬀ the resources that exist in the Japanese side of the median line claimed by Japan. China denied such a possibility and further rebutted that China has never recognized the median line claimed by Japan and China’s operation is completely in the undisputed area.28 In July 2005, the Japanese government quickly granted

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People’s Daily (Renmin ribao), 30 Aug. 1996. ‘No Japanese Challenge against Chinese Sovereignty Allowed’ Wen Wei Po (Hong Kong 2 Sep. 1996). Kydo ‘China Blasts Ikeda’s Remarks on Senkaku Islands’ (29 Aug. 1996), in LEXIS/NEXIS; Japan, Do Not Do Foolish Things, Xinhua News, 30 August, 1996. Xinhua News, 11 and 12 September 1996. People’s Daily on Line, at [12 Mar. 2008].

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a license to Tokyo-based Teikoku Oil Co. to conduct its own exploration in the disputed waters. This immediately elicited strong protest in China.29 To settle their maritime boundary dispute, China and Japan started to talk in October 2004. At the beginning, Japan disregarded China’s earlier proposal of “joint development,” and demanded that China should stop the project and provide technical data to Japan. China felt that the Japanese demand was unreasonable and unacceptable. In October 2005, during the third round of talks, Japan accepted the notion of “joint development” and proposed that the “joint development” area should include the gas ﬁelds located in the areas over which China has incontestable territorial rights, such as the Chunxiao gas ﬁeld. China thought that Japan intended to narrow the disagreement over the delimitation of the East China Sea down to the natural resource dispute in Chunxiao gas ﬁeld region, so as to prompt China to accept or acquiesce to the “median line” theory. China asserted that joint exploration should be limited in the disputed area, namely the part between the median line and the edge of China’s continental shelf.30 The Japanese government ﬂatly rejected the Chinese proposal because it thought that the site was clearly in the Japanese EEZ and hence there was no justiﬁcation for such joint development.31 The clashes in the East China Sea have made China and Japan realize the necessity of further cooperation to avoid serious disruption. However, little substantial progress has been made due to the parties’ fundamental divergence over the maritime delimitation.

5.2 5.2.1

Conﬂicting Claims Conﬂicting Claims over the Ownership of the Diaoyu/Senkaku Islands

5.2.1.1 Chinese Claims Although the PRC (Mainland China) and the ROC (Taiwan) have a dispute over their relationship, they both, based on their shared past, try to represent China to claim the sovereignty of the Diaoyu/Senkaku Islands and their claims are basically

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Cui Tiankai, director of the Asian Department of China’s Foreign Ministry, immediately summoned, Minister of the Japanese Embassy in Beijing and delared that the Japanese government’s approval of the drill request of Teikoku Oil Co. in the disputed area in the East China Sea is a “severe provocation and violation” against China’s sovereignty and interest and is also against the the United Nations Convention on the Law of the Sea. See People’s Daily on Line at [22 Apr. 2008]. 49 (13) Beijing Review (30 Mar. 2006). The Japan Times Online News, at [04/Mar. 2008]; BBC News, at [04 Mar. 2008].

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similar.32 Mainland China even supports Taiwan’s claim because it delares Taiwan as its territory and therefore, Taiwan’s sovereignty over the Islands is tantamount to China’s sovereignty.33 In short, the Chinese claims are justiﬁed as follows: 1) discovery and occupation; 2) history; 3) geography; 4) treaty. China claims that the Diaoyu/Senkaku Islands were discovered by the Chinese in the 1400’s, 480 years earlier than the Japanese and that the islands were ﬁrstly named by the Chinese. A number of Chinese writings dating back to the 1400’s and 1500’s support China’s claim: for example, texts in the book named Shunfeng Xiangsong,34 a record of voyages between China proper and the Ryukyus in 1403, described a journey to the Diaoyu/Senkaku Islands.35 China therefore declares that the Islands “have been an inalienable part of China’s territory since ancient times, and appertain to China’s Taiwan”. The Japanese control over the Islands cannot change that historical fact.36 Since their discovery, the Chinese ﬁshermen had used the Islands as a refuge without lengthy interruptions until 1970.37 China also mentions many historical records of China’s consistent administration of the Islands before 14 January 1895.38 For example, the record book of the voyages to the Ryukyus called Shi Liuqiu Lu (Record of the Imperial Envory to Ryukyu) written by Chen Kan, the imperial envoy of the Ming Dynasty, in 1534. In the book, Chen stated that the Diaoyu/Senkaku Islands were not part of the Ryukyus.39 During the 1500s, the Chinese government incorporated the Diaoyu/Senkaku Islands into its coastal defense system.40 During the year before the Sino-Japanese War (1894), the Chinese leader, Empress Dowager Cixi, awarded three of the disputed Islands

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USDOC 1970b. K. Choy. ‘Overview of Taiwan’s Legal and Jurisdictional Considerations in the Diaoyu/Senkaku Dispute’ in K. H. C. Chiu (ed.) International Law Conference on the Dispute over Diaoyu/Senkaku Islands (Taiwan Law Society & Taiwan Institute of International Law, Taipei 1997), p. 8. The original book of the Shunfeng Xiangsong is now located in Bodleian Library, Oxford, U.K. H. Wu. ‘Cong guojifa lun zhong ri diaoyudao zhengduan ji qi jiejue qianjing (The Prospect of Settlement of Diaoyu Islands between China and Japan: From International Law)’ 10 (1) China’s Borderland History and Geography Studies (2001), p. 77. See Statement of the PRC’s Ministry of Foreign Aﬀairs (30 Dec. 1971), Beijing Review (1 Jan. 1972). The Boston Action Committee to Defend Tiao-Yu-T’ai (the Diaoyu Islands) as Chinese Territory, Taio-Yu-T’ai Islands: A Legal Analysis, April 10, 1971, pp. 2–3. Y. Zhong ‘Lun diaoyudao zhuquan de guishu (On the Sovereignty of the Diaoyu Islands)’ People’s Daily (Beijing 18 Oct. 1996). Ibid. Ibid. T. Wu. Jiawu zhanqian diaoyu liedao guishu kao (A Historical Study of the Sovereignty of the Diaoyu Islands before the 1895 Sino-Japanese War) (Social Science Literature Publishing House, Beijing 1994), Chapter 4. See also U. Suganuma. Sovereign Rights and Territorial Space in SinoJapanese Relations: Irredentism and the Diaoyu/Senkaku Islands (Association for Asian Studies and University of Hawai’I Press, Honolulu, Hi. 2000), pp. 61–8.

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(Diaoyudao, Huangweiyu and Chiweiyu) to a Chinese entrepreneur called Sheng Xuanhuai for the collection of medicinal herbs.41 China concludes that at that time the Diaoyu/Senkaku Islands, as a part of Taiwan, was under administration of China’s Fujian Province, and served as navigational markers during China-toRyukyu voyages. Many atlases published in China, Japan and the Ryukus also included the Diaoyu/Senkaku Islands as China’s territory. The atlas published by the Geographical Society of Japan in 1939 did not include the Islands as Japanese territory and the atlases published in other countries adopted the Chinese name – Tiao-yu-tai until after the World War II.42 China believes that the geographical structure of the Diaoyu/Senkaku Islands supports its claim, too. The Islands are situated on Mainland China’s continental shelf and separated from the Ryukyu Islands by Okiwana Trough, which is more than 2000 meters deep.43 The geological structure of the Islands distinguishes them as the islets belonging to Taiwan. The Chinese claim is also based on treaties, such as the 1943 Cairo Declaration and the 1945 Potsdam Proclamation. China argues that before 1895 the Islands were China’s territory because of its discovery and occupation. In 1895, the islands as part of Taiwan were ceded to Japan by virtue of the Shimonoseki Peace Treaty, which formally ended the ﬁrst Sino-Japanese War (1894–1895).44 In 1945, Japan in its Instrument of Surrender accepted the Cairo Declaration and the Potsdam Proclamation, which obliged Japan to return the territories China had ceded to Japan, which included the Diaoyu/Senkaku Islands.45 Therefore, China

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Mingpao Monthly (Hong Kong May 1979), p. 87. See also Y. Zhong, op. cit. (1996). See also T. Cheng. ‘The Sino-Japanese Dispute over the Tiao-Yu-Tai (Senkaku) Islands and the Law of Territorial Acquisition’ 14 Va. J. Int’l L. (1973–1974), Note 122, p. 257. U. Suganuma, op. cit. (2000), p. 129. See also The Encyclopaedia Brittanica (1940), p. 69. C. D. Bethill. ‘People’s China and the Law of the Sea’ VIII (4) International Lawyer (1974), pp. 745–6. Article II of the Shimonoseki Treaty of Peace reads as follows, “China cedes to Japan in perpetuity and full sovereignty the following territory, together with all fortiﬁcations, arsenals, and public property thereon: . . . (b) The island of Formosa (Taiwan), together with all islands appertaining or belonging to the said Island of Formosa.” See the treaty at [17 Apr. 2008]. The Cairo Declaration of 1943 states, “The three great allies Britain, China, and the United States are ﬁghting this war to restrain and punish the aggression of Japan. They covet no gain for themselves and have no thought of territorial expansion. It is their purpose that Japan shall be stripped of all the islands in the Paciﬁc which she has seized or occupied since the beginning of the First World War in 1914, and that all the territories Japan has stolen from the Chinese, such as Manchuria, Formosa, and the Pescadores, shall be restored to the Republic of China. Japan will also be expelled from all other territories which she has taken by violence and greed . . . .” This provision of the Cairo Declaration was reaﬃrmed by Article 8 of the Proclamation Deﬁning Terms for Japanese Surrender (the Potsdam Proclamation) of 26 July 1945, which reads as follows: “The terms of the Cairo Declaration shall be carried out and Japanese sovereignty shall be limited to the

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insists that Japan was legally obliged to return the Diaoyu/Senkaku Islands to China.46 On 11 December 2002, Taiwan’s leader Chen Shuibian re-iterated that the Diaoyu/Senkaku Islands are the territory of the Republic of China.47 This claim was welcomed by Beijing because it was in accord with Beijing’s “One China Policy”. 5.2.1.2 Japanese Claims From the documents and literature concerned, Japan’s claim to the Diaoyu/Senkaku Islands is based on: 1) discovery and occupation; 2) eﬀective control; 3) treaty. Japan argues that the Diaoyu/Senkaku Islands were terra nullius when the Ryukyu ﬁsherman Tatsushiro Koga discovered them in 1884. A statement issued by the Japanese Foreign Ministry in 1972 said, “In and after 1885, the Japanese government repeatedly conducted ﬁeld surveys on the Senkaku Islands, and having conﬁrmed with prudence that they were not merely uninhabited islands but also had no traces of control by Qing (China), made a cabinet decision on 14 January 1895, to the eﬀect that a marker post would be put up in the Islands, and thus, decided to incorporate them formally into our country’s territory.”48 Japan believes that since 14 January 1895, the Diaoyu/Senkaku Islands had been consistently under Japan’s administration as a part of Japanese territory until 1951. In 1951, the San Francisco Peace Treaty signed between Japan and the Allied Powers put the Ryukyu Islands, which included the Diaoyu/Senkaku Islands according to the Japanese view, under U.S. trusteeship.49 Japan claims that the Diaoyu/Senkaku Islands were not renounced by Japan under Article 2 of the San Francisco Peace

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islands of Honshu, Hokkaido, Kyushu, Shikoku and such minor islands as we determine.” Japan signed the Instrument of Surrender on 2 September 1945, stating, “[ Japan] agreed to accept the provisions of the declaration issued by the heads of the Governments of the United States, China, and Great Britain on 26 July 1945 at Potsdam.” Y. Zhong, op. cit. (1996). BBC News, at [12 Mar. 2008]. USDOC (1972c); USDOS (1972d). See Y. Matsui. ‘Legal Bases and Analysis of Japan’s Claims to the Senkaku Islands’ in K. H. C. Chiu (ed.) International Law Conference on the Dispute over Diaoyu/Senkaku Islands (Taiwan Law Society & Taiwan Institute of International Law, Taipei 1997), pp. 32–45. The Treaty of San Francisco or San Francisco Peace Treaty between the Allied Powers and Japan, was oﬃcially signed by 49 nations on 8 September 1951 in San Francisco, California. It came into force on 28 April 1952. It is a popularly known name, but its formal English name is Treaty of Peace with Japan. Neither the Republic of China nor the People’s Republic of China was invited to the treaty conference and therefore neither signed this treaty. In the treaty, there is ambiguity as to over which islands Japan has renounced sovereignty.

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Treaty. The Islands were just placed under the administration of the United States under Article 3 and on 17 June 1971, Japan regained its administration of the Islands based on the Okinawa Reversion Treaty. Since then Japan has established eﬀective control over the islands. The fact that China expressed no objection to the status of the Islands when they were placed under the administration of the United States under Article III of the San Francisco Peace Treaty indicates that China did not consider the Senkaku Islands as part of Taiwan.50 Japan also supports its claim by reference to a world atlas and a school textbook on geography published in Taiwan in 1965 and a world atlas published in Beijing in 1958 in which the Diaoyu/Senkaku Islands were treated as territory of Japan.51 Obviously, the Japanese claim to the Diaoyu/Senkaku Islands is based on its ﬁrst discovery in 1884 and its long time’s administration over the islands (1895–1945) and the Okinawa Reversion Treaty in which it regained its administration of the islands and its present eﬀective control over the islands.52 5.2.2

Diﬀerent Views on the Maritime Delimitation in the East China Sea

The 300,000-square-kilometer East China Sea Basin is shallow, with water depths of less than 200m, except in the Okinawa Trough along the Japanese the coast. Japan and China both declare that they have the rights to claim their respective continental shelf and Exclusive Economic Zone based on the 1982 UNCLOS, which allows coastal States to claim at least 200 NM maritime jurisdictions. The less-than-400-nautical-mile distance between the Chinese and Japanese landmasses deﬁnitely causes the overlapping. 5.2.2.1 Chinese View The PRC has consistently supported the establishment of coastal States’ jurisdiction over their EEZ and continental shelf. In July 1973, the Chinese delegate to the Third UNCLOS declared that the Chinese government ﬁrmly supported States’ reasonable proposition for an exclusive economic zone not exceeding 200 nautical miles,53 and denounced any opposition to the creation of such zones.54 In the Chinese working paper submitted to the UN Seabed Committee it was suggested that coastal States shall pursue the principle that the continental shelf is the natural prolongation of land territory and have the right to demarcate the

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51 52 53

54

See the basic view of Japan’s view on the Diaoyu/Senkaku Islands at [13 Mar. 2008]. USDOS (1972b); See also U. Suganuma, op. cit. (2000), pp. 126–7. Y. Matsui, op. cit. (1997), pp. 32–45. C. D. Bethill. ‘People’s China and the Law of the Sea’ VIII (4) International Lawyer (1974), p. 738. UN Oﬃcial Records, vol. I, p. 80.

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continental shelf beyond its territorial sea and EEZ in a reasonable way based on the speciﬁc geological features.55 The PRC, based on Article 76 of the 1982 UNCLOS, upholds the principle of natural prolongation of land territory when it deﬁnes its continental shelf. The PRC has never become the member of the 1958 Geneva Continental Shelf Convention (the Continental Shelf Convention), which advises its party States to adopt the equidistance line.56 However, China adheres to the principle that the ﬁnal maritime delimitation line between opposite or adjacent States should be made by agreement on the basis of international law. This accords with Article 83 of the 1982 UNCLOS which provides that ‘the delimitation of the continental shelf between States with opposite or adjacent coasts shall be eﬀected by agreement on the basis of international law’. In April 1978 when the third UNCLOS was still involved in the argument about the equity principle and the equidistance principle, the Chinese delegation announced that the median line or equidistant line is just one option for maritime delimitation and it shall neither be adopted as the compulsory method nor be treated as the delimitation principle. China believed that the basic principle for maritime delimitation should be the equity principle. Even in some circumstances in which the median or equidistant line can achieve a fair and equitable solution, in the Chinese view, the States concerned may reach an agreement to employ this method. But China rejected any unilateral enforcement of the median or equidistant line before an agreement.57

55

56

57

See Sea Area within the Limits of National Jurisdiction, Working Paper submitted by the Chinese Delegation, UN Doc.A/AC.138.SC.II/L.34 (1973), 3 Seabed Committee Report (1973), p. 74. Article 6(1) of the 1958 Convention provides, “Where the same continental shelf is adjacent to the territories of two or more States whose coasts are opposite each other, the boundary of the continental shelf appertaining to such States shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justiﬁed by special circumstances, the boundary is the median line, every point of which is equidistant from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured.” The ROC (Taiwan) signed the 1958 Continental Shelf Convention in 1958 and ratiﬁed it in 1970 with the reservation on Article 6 which concerns the continental shelf demarcation. The reservation statement provides: 1) where the same continental shelf is adjacent to the territories of two or more States whose coasts are adjacent or opposite each other, the boundary of the continental shelf shall be determined by the natural prolongation of land territory principle; 2) In delimiting the boundary of the continental shelf of the ROC, rocks and islets shall be ignored. In 1971 when the PRC replaced the ROC to take the legal seat in the UN, a declaration was made by the PRC government stating that the PRC did not recognize the 1958 Continental Shelf Convention signed and ratiﬁed by the ROC. See F. Zhu. ‘Zhongri donghai zhengduan ji qi jiejue de qianjing (China-Japan Dispute over East China Sea and Its Resolution in Prospects)’ (7) Contemporary Asia-Paciﬁc Studies (2005), at [08 May 2008]. D. Chen. Xiandai guoji haiyangfa (Modern International Maritime Law) (China Social Sciences Press, Beijing 1988), p. 467.

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On 26 June 1998, the PRC promulgated its law on the Exclusive Economic Zone and the Continental Shelf, in which Article 2 provides: The exclusive economic zone of the People’s Republic of China is the area beyond and adjacent to the territorial sea of the People’s Republic of China, extending to 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. The continental shelf of the People’s Republic of China is the sea-bed and subsoil of the submarine area that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance. Conﬂicting claims regarding the exclusive economic zone and the continental shelf by the People’s Republic of China and States with opposite or adjacent coasts shall be settled, on the basis of international law and in accordance with the principle of equity, by an agreement delimiting the areas so claimed.58

Based on the principle of natural prolongation of land territory, China claims that the East China Sea continental shelf is the natural extension of the Chinese continental territory and the continental shelf extends all the way to the axis of the Okinawa Trough and the PRC has inviolable sovereignty over its continental shelf, enclosing all of the petroleum potential there. However, in practice, China restricts its exploration and exploitation to the Chinese side from the equidistant line in consideration of no agreement ever achieved between the two countries. For example, the Chinese gas oil ﬁeld of Chunxiao is located on the Chinese side from the Sino-Japanese equidistant line. 5.2.2.2 Japanese View Historically, Japan’s attitude to the establishment of States’ continental shelf and EEZ was a somewhat inconsistent. In 1958, at the ﬁrst UN conference on the Law of the Sea, Japan refused to support adoption of the Convention on the Continental Shelf because at that time Japan’s concern focused on how to curb extensive national claims over territorial water in order to enhance free mobility of Japanese ﬁshing interests.59 In the 1960s, when petroleum sources were reported in the East China Sea, Japan began to change its attitude and responded positively to the Continental Shelf Convention. Nevertheless, it refused to accept establishment of 200 nm EEZ in order to prevent national monopolization of vast areas of the ocean ﬂoor and maximize its opportunities for worldwide exploitation of sea resources.60 Japan’s

58

59

60

See the English version of the Exclusive Economic Zone and the Continental Shelf Act of the PRC at [13 Mar. 2008]. ‘The East China Sea: The Role of International Law in the Settlement of Disputes’ 1973 (4) Duke Law of Journal (1973), p. 838. Ibid., p. 839.

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negative attitude to the EEZ continued all the way at the third UN Conferences on the Law of the Sea.61 Nevertheless, Japan signed the 1982 UNCLOS in February 1983 and accepted the establishment of both EEZ and continental shelf. In 1996 Japan ratiﬁed the 1982 UNCLOS and promulgated its law on the EEZ and the Continental Shelf. Article 1 (2) of the 1996 Japanese Law describes its the EEZ as follows: The exclusive economic zone referred to in the preceding paragraph (hereinafter ‘the exclusive economic zone’) comprises the areas of the sea extending from the baseline of Japan (‘The baseline’ here is as deﬁned in article 2, paragraph 1, of the Law on the Territorial Sea and the Contiguous Zone (Law No. 30 of 1977). The same shall apply hereinafter) to the line every point of which is 200 nautical miles from the nearest point on the baseline of Japan (excluding therefrom the territorial sea) and its subjacent seabed and its subsoil. Provided that, where any part of that line lies beyond the median line (‘The median line’ here is the line every point of which is equidistant from the nearest point on the baseline of Japan and the nearest point on the baseline from which the breadth of the territorial sea pertaining to the foreign coast which is opposite the coast of Japan is measured. The same shall apply hereinafter) as measured from the baseline of Japan, the median line (or the line which may be agreed upon between Japan and a foreign country as a substitute for the median line) shall be substituted for that part of the line.62

Article 2(1) describes Japan’s continental shelf as follows: The areas of the sea extending from the baseline of Japan to the line every point of which is 200 nautical miles from the nearest point on the baseline of Japan (excluding therefrom the territorial sea). Provided that, where any part of that line lies beyond the median line as measured from the baseline of Japan, the median line (or the line which may be agreed upon between Japan and a foreign country as a substitute for the median line, and the line to be drawn to connect with the said line, which shall be prescribed by Cabinet Order) shall be substituted for that part of the line.63

Obviously, Japan adopts the equidistant principle in case of no agreement on the maritime delimitation with a foreign country. Therefore, Japan insists that it shares one continental shelf with China and the Okinawa Trough is not the division line. The median line should be used to deﬁne the EEZ and continental shelf in the East China Sea.64

61

62

63 64

J. Yang and Z. Gao. (eds.) Yatai diqu de haiyang zhengce (Maritime Policy around the Asian-Paciﬁc Ocean) (Ocean Press, Beijing 1990), p. 70. See the English version of the Japanese Law on the Exclusive Economic Zone and the Continental Shelf (1996) at [13 Mar. 2008]. Ibid. Y. Shi. ‘Neighbors at Odds’ 49 (13) Beijing Review (30 Mar. 2006), at [08 May 2008].

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Chapter 5

Appraisal The Dispute over the Sovereignty of the Diaoyu/Senkaku Islands

The dispute over the sovereignty to the Diaoyu/Senkaku Islands is very complicated both legally and politically. From a legal perspective, the Japanese claim is based on discovery and occupation, prescription, eﬀective control and treaties while the Chinese one is based on discovery and occupation, history, geography and treaties. Although, in practice, none of these justiﬁcations operates as the single decisive factor, the case law of the ICJ indicates that treaties are more persuasive and determinative than eﬀective control and other justiﬁcations in the cases concerning territorial and boundary disputes.65 Territorial treaties are more likely to lead to predictable results and guarantee the stability in the international system.66 Compared with treaties, eﬀective control seems much more unpredictable and subject to abuse. The principle of eﬀective control might encourage territorial imperialism and a new wave of colonialism.67 The fact that a Japanese right-wing group tried to establish a lighthouse on the Diaoyu/Senkaku Islands and Chinese civilians struggled to land on the islands for protest was simply the result of the general understanding of eﬀective control. Such a general understanding about eﬀective control is also reﬂected in the governments’ public behaviours. After Japanese rightist groups planted a Japanese National ﬂag on the Diaoyu/Senkaku Islands in late 1996, Taiwan, which also claims the islands, sent a ﬂotilla of ﬁshing vessels carrying protesters who pledged to uproot the ﬂag. The Japanese Maritime Self Defence Forces quickly intervened, deploying 60 naval vessels to block the protesters from landing. In May 1999, the PRC encircled the islands with 10 naval vessels for a week, amid a propaganda barrage against Japanese “hegemonists.”68 In terms of peace and stability, these adverse results are strengthened by the tendency for China and Japan to build up their naval forces in an attempt to guarantee their capacity to control the disputed areas.69

65

66 67 68 69

For example, Minquiers and Ecrehos(France/United Kingdom), Sovereignty over Certain Frontier Land (Belgium/Netherlands), Temple of Preah Vihear (Cambodia v. Thailand), Frontier Dispute (Burkina Faso/Mali), Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua Intervening),Territorial Dispute (Libya/Chad), Land and Maritime Boundary (Cameroon v. Nigeria: Equatorial Guinea Intervening), Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia). See B. T. Sumner. ‘Territorial Disputes at the International Court of Justice’ 53 Duke L. J. (2003–2004), pp. 1799–1812. Ibid., pp. 1809–11. Ibid., p. 1810. S. S. Harrison. ‘Quiet Struggle in the East China Sea’ Current History (Sep. 2002), pp. 273–4. Japan further strengthened its military alliance with the USA in the western Paciﬁc areas since the 1990s. In March 1994, the ﬁrst “two-plus-two” meeting of the Japanese foreign minister and the Defense Agency director with the United States secretary of state and secretary of defense was held in Tokyo to discuss a coordinated approach to post-Cold War regional and global

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If China could legally prove the Diaoyu/Senkaku Islands to be part of Taiwan in history, the Chinese claim to the Islands would weigh much heavier than the Japanese one. In that case, the valid treaties between Japan and China concerning the title of the Islands would be the 1895 Shimonoseki Treaty, the 1943 Cairo Declaration, the 1945 Potsdam Proclamation, the 1945 Japanese Instrument of Surrender and the 1972 Joint Communique of the Government of Japan and the Government of the People’s Republic of China. Based on Article II of the Shimonoseki Treaty of Peace, China ceded Taiwan with all the islands appertaining or belonging to Taiwan including the Diaoyu/Senkaku Islands to Japan. At the end of World War II, Japan had legal obligations, as provided in the Cairo Declaration, the Potsdam Proclamation and the Japanese Instrument of Surrender, to return the territories Japan had seized from China, which deﬁnitely included Taiwan, to China.70 If China could prove that the Diaoyu/Senkaku Islands were part of Taiwan then, of course, Japan should return the Islands to China. In the 1972 Sino-Japanese Joint Communique this obligation was re-emphasized.71 In that case, the San Francisco Treaty and the Okinawa Reversion Treaty, which provided the transfer of administration over the Ryukyu Islands between the U.S.A. and Japan, could not change China’s sovereignty over the Diaoyu/Senkaku Islands. Firstly, none of the two treaties clearly provided that the Ryukyu Islands should include the Diaoyu/Senkaku Islands. Secondly, even if Japan could prove that the Ryukyu Islands included the Diaoyu/Senkaku Islands, the treaties were not binding on China because neither Mainland China nor Taiwan signed the treaties. The 1969 Vienna Convention on the Law of Treaties states “a treaty does not create

70

71

security problems. On 23 January 1996, Japanese Prime Minister Hashimoto said that the U.S. Forces stationed in Japan were indispensable to fulﬁll the aims of the Japan-U.S. security treaty and the Marines were playing an important part because their mobility and readiness to swiftly deal with situations that may take place. In Japanese view, the primary purpose of the Japan-US alliance is to defend Japan and the Senkaku Islands against foreign aggression. See K. Okazaki. ‘China’s Seaward Adventurism and the Japan-US Alliance’ (1997), at [14 Mar 2008]. On the Chinese part, Chinese President Hu Jintao advocated upgrading the Chinese navy aiming at protection of China’s maritime rights in his speech on 27 December 2006. Xinhua News, at [14 Mar. 2008]. The Cairo Declaration states, “. . . Japan shall be stripped of all the islands in the Paciﬁc which she has seized or occupied since the beginning of the First World War in 1914, and that all the territories Japan has stolen from the Chinese, such as Manchuria, Formosa (Taiwan), and the Pescadores, shall be restored to the Republic of China.” Article 3 of the 1972 Sino-Japanese Communique provides: “The Government of the People’s Republic of China reiterates that Taiwan is an inalienable part of the territory of the People’s Republic of China. The Government of Japan fully understands and respects this stand of the Government of the People’s Republic of China, and it ﬁrmly maintains its stand under Article 8 of the Potsdam Proclamation.”

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either obligations or rights for a third State without its consent.”72 Res inter alios acta is also a common law doctrine. Hence the territorial sovereignty of a State may not, through treaties agreed between third States, be expropriated or changed. No individual or country may transfer rights that he or the country does not possess to another party. This is a basic principle in private law as well as in international law. Nonetheless, China must prove that the Diaoyu/Senkaku Islands belonged to Taiwan when the Cairo Declaration was made. Supposed Diaoyu/Senkaku Islands were not part of Taiwan, in other words, there would be no valid treaty between China and Japan concerning the sovereignty of the Islands. Then, Japan could logically rely on eﬀective control to make its claim to the Islands. Japan may strengthen its claim to the Islands by declaring that it has exercised its authority over the Diaoyu/Senkaku Islands peacefully and continuously since 14 January 1895 when Japanese Cabinet decided to incorporate the Islands into Japan’s territory. But Japan must prove that its eﬀective control was ﬁrst established in 1895 and its eﬀective control was continuous and peaceful. Because the dispute over the Diaoyu/Senkaku disputes became crystallized in December 1971,73 the critical date should be December 1971.74 Then the actions after that date like building temporary helicopter platform and lighthouse on the Islands should not have any legal eﬀect. Other justiﬁcations such as history, geography, and economy are also supposed to have their roles in settling territorial disputes. However, they are not as persuasive as treaty and eﬀective control and their dispositive degrees are much changeable from case to case. Because the Diaoyu/Senkaku islands are tiny islands in a remote place, as the case of Sovereignty over Pulau Litgitan and Pulau Sipan indicates,75 the sovereignty over such small islands are mainly decided on the basis of treaty and eﬀective control. 5.3.2

The Maritime Boundary Dispute

The provisions of Article 6 of the 1958 Geneva Convention on the Continental Shelf deﬁning the principle of equidistance are not binding upon either Japan or China because none of them ratiﬁed the Convention. This was supported by the ICJ Judgment in the North Sea Continental Shelf Cases, in which the Federal Republic

72 73

74

75

See Art.34. Lauterpacht deﬁned the critical date as “the date by reference to which a territorial dispute must be deemed to have crystallized.” See H. Lauterpacht. The Development of International Law by the International Court (Praeger, New York 1958), p. 242. Seokwoo Lee shared this view in his article Territorial Disputes among Japan, China and Taiwan Concerning the Senkaku Islands. See S. Lee. ‘Territorial Disputes among Japan, China and Taiwan Concerning the Senkaku Islands’ 3 (7) Boundary & Territory Brieﬁng (2002), pp. 10, 30. ICJ Reports 2002, p. 625.

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of Germany was not legally bound by the provisions of Article 6 of the Geneva Convention because the Federal Republic had not ratiﬁed the Convention.76 In addition, the principle of equidistance is not a rule of customary international law.77 The ICJ held in the North Sea Continental Shelf Cases that “the Geneva Convention was not in its origins or inception declaratory of a mandatory rule of customary international law enjoining the use of the equidistance principle, its subsequent eﬀect had not been constitutive of such a rule, and State practice up to date had equally been insuﬃcient for the purpose.”78 Today, the 1958 Geneva Convention on the Continental Shelf has been largely superseded by the 1982 UNCLOS. As a matter of fact, States and international tribunals have already been treating the language of the 1982 UNCLOS as codifying existing general international law and have proceeded on that basis.79 Both Japan and China have ratiﬁed the 1982 UNCLOS and are bound by it. But, in relation to delimitation of EEZ and continental shelf, the equidistance line is not referred to in either Article 74 or Article 83 of the 1982 UNCLOS. Thus, neither Japan nor China is under a legal obligation to use the equidistance method of delimitation. Logically, Japan’s unilateral declaration that the median line shall be the legal delimitation line in the East China Sea is not binding on China. In fact, neither the natural prolongation principle, which is the basis of China’s claim, nor the equidistance principle, which is the basis of Japan’s claim, is a rule of customary international law. The 1982 UNCLOS just provides a general delimitation principle, which simply states that delimitation should be “eﬀected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.”80 Thus, there are in fact no rules of law for eﬀecting a maritime delimitation in the presence of overlapping titles81 and the natural prolongation and the median line are just alternative methods of maritime delimitation. The 1982 UNCLOS oﬀers no absolute solutions to the delimitation problem. It just presents possible approaches that could be used to deﬁne a fair division line between coastal States. No matter what speciﬁc approach is applied, the substantial rule provided in the 1982 UNCLOS is that every delimitation should be an equitable solution. What kind of solution can be called an equitable one as required? The ICJ cases suggest some possible ways to achieve an equitable solution. In the 1969 North Sea Continental Shelf cases, when the Court discovered that equidistance

76 77 78 79

80 81

North Sea Continental Shelf Cases, ICJ Reports 1969, pp. 23–8, paras. 21–36. Ibid. Ibid., pp. 37–41, paras. 60–82. J. I. Charney. ‘Progress in International Maritime Boundary Delimitation Law’ 88 AJIL (1994), p. 227. UNCLOS, Art. 74 and 83. S. Oda. ‘Dispute Settlement Prospects in the Law of the Sea’ 44 (4) ICLQ (1995), p. 870.

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lines drawn from the coastlines of the Netherlands, Germany and Denmark were not equitable, it set forth the factors involved in reaching an equitable delimitation of the continental shelf as the following: 1) the general conﬁguration of the coasts of the Parties, as well as the presence of any special or unusual features; 2) so far as known or readily ascertainable, the physical and geological structure, and natural resources, of the continental shelf areas involved; 3) the element of a reasonable degree of proportionality between the extent of the continental shelf areas appertaining to each State and the length of its coast measured in the general direction of the coastline, taking into account the eﬀects, actual or prospective, of any other continental shelf delimitations in the same region.82 To achieve an equitable solution and avoid disproportion between lengths of coasts and marine areas generated by them, the geographical factors in the East China Sea should be taken into account. The principle of international law that the land dominates the sea suggests that right to maritime territory, whether EEZ or continental shelf, derives from sovereignty over its adjacent land territory.83 The delimitation based on the equity principle may best accommodate some of the unusual geographic features of the area.84 Proportionality is one possible relevant factor to be used for correcting the disproportions that arise from the use of a method that fails to take account of coastal conﬁguration.85 Proportionality may take the form of proportionality between the areas of continental shelf and the lengths of the respective coastlines.86 In the North Sea Continental Shelf Cases, the Court considered “the element of a reasonable degree of proportionality . . . between the extent of the continental shelf areas appertaining to the coastal State and length of its coast.”87 A similar judgment was made in the 1982 Case Concerning the Continental Shelf (Tunisia v. Libya).88

82 83

84

85 86 87 88

North Sea Continental Shelf Cases, ICJ Reports 1969, pp. 46–53, paras. 83–101. See generally Chapter V of Award II of Eritrea v. Yemen and also Qatar v. Bahrain, ICJ Reports 2001, para. 185. D. R. Allen and P. H. Mitchell. ‘The Legal Status of the Continental Shelf of the East China Sea’ 51 Or. L. Rev. (1971–1972), p. 811. G. Ji, op. cit. (1995). Ibid. ICJ Reports 1969, p. 54, para. 101 (D) (3). In the Judgment, the Court concluded, “. . . B. The relevant circumstances . . . to be taken into account in achieving an equitable delimitation include the following: . . (5)The element of a reasonable degree of proportionality, which a delimitation carried out in accordance with equitable principles ought to bring about between the extent of the continental shelf areas appertaining to the coastal State and the length of the relevant part of its coast, measured in the general direction of the coastlines, account being taken for this purpose of the eﬀects, actual or prospective, of any other continental shelf delimitation between States in the same region.” ICJ Reports 1982, p. 93, para. 133.

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In the 1984 Gulf of Maine Case (Canada v. U.S.) and the 1985 Continental Shelf Case (Libyan v. Malta), the ICJ reaﬃrmed the method of drawing a proportionality line by considering the disparity in the lengths of the relevant coasts of the Parties and the distance between them. In the Gulf of Maine Case, the Court compared the ratio of coastline lengths between the United States and Canada and found that the United States coastline was somewhat longer. Based on this diﬀerence and ignoring the small dependent islands, the Court determined the ratio was 1.38 to 1. Therefore, the Court shifted the delimitation line toward Canada coastline and away from the U.S. coastline.89 In the Libyan v. Malta Case, the Court also moved the delimitation line back toward Malta when it found Libya’s coastline was much longer than Malta.90 From the viewpoint of the Court, this diﬀerence is so great as to justify the adjustment of the median line so as to attribute a larger shelf area to Libya.91 In comparison, the features of the coastlines of Libya and Malta are very similar to the ones of China and Japan. On the Chinese side is Mainland China’s consecutive coastline stretching over 3,000 kilometers while on the Japanese side just lie some small islands whose coastal lengths add up to less than 1,000 kilometers. The distance between some Japanese islands exceeds 100 NM. In the area south of 30° N latitude, the ratio of the lengths of the coastlines of China and Japan in the general direction is 64.3 to 35.7.92 This disproportion in geographical feature constitutes the so-called “special circumstance” adequate to rule out the application of equidistance line as the equitable demarcation in the East China Sea.93 A proportionality line based on the lengths of the respective coastlines seems more equitable for the maritime delimitation in the East China Sea. This method of demarcation was also supported by States’ practice. In the 1978 Australia-Papua New Guinea Maritime Zone Boundary agreement, the boundary demarcation was set forth according to a reasonable degree of proportionality between Papua New Guinea’s coast and the Australian islands’ coasts.94 In the 1971 Federal Republic of Germany-UK Continental Shelf Boundary Agreement, the

89

90

91 92

93

94

Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. U.S.), ICJ Reports 1984, pp. 336–7, para. 222. Case Concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta), ICJ Reports 1985, p. 57, para. 79 (B) (2). Ibid., p. 50, para. 68. Y.-J. Ma. Cong xin haiyan fa lun diaoyutai lieyu yu donghai huajie wenti (Legal Problems of Tiaoyutai Islands and the Seabed Boundary Delimitation in the East China Sea: From the New Law of the Sea) (Zhengzhong shuju, Taipei 1986), p. 164. M. Yu. ‘Zhongri donghai you qi zhengduan de guojifa fenxi (Sino-Japanese Disputes over the Oil and Gas in the East China Sea: An Analysis Based on International Law)’ 105 (1) Studies in Law and Business (2005), p. 48. D. J. Attard. The Exclusive Economic Zone in International Law (Oxford University Press, New York 1987), p. 258.

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concavity of the coast of the Federal Republic of Germany was adequate for a ‘special circumstance’ to be considered in the boundary demarcation.95 The disputes over the sovereignty to the Diaoyu/Senkaku Islands add considerable diﬃculties to the issue of maritime delimitation in the East China Sea. The potential role played by the Islands in the delimitation is another important issue. Should we ignore the eﬀects of the uninhabited Diaoyu/Senkaku Islands on the maritime delimitation in the East China Sea? The judgments of the ICJ suggest that the eﬀects of the Diaoyu/Senkaku Islands in the maritime delimitation should be ignored. In an apposite passage of the 1969 Judgment on the North Sea Continental Shelf cases, the Court found no need to take account of the presence of “islets, rocks and minor coastal projections, the disproportionally distorting eﬀect of which can be eliminated by other means” in determining the course of a delimitation line intended to “eﬀect an equal division of the particular area involved” between two coasts.96 In the Gulf of Maine Case, the ICJ ignored the small dependent islands.97 In the Libya v. Malta case, uninhabited islands received no eﬀect, either.98 In the 2001 Qatar v. Bahrain Case, the ICJ held that equity requires that the small island of Fasht al Jarim as a remote projection of Bahrain’s coastline in the Gulf area should have no eﬀect in determining the boundary line in the northern sector. From the viewpoint of the Court, Fasht al Jarim, if given full eﬀect, would “distort the boundary and have disproportionate eﬀects” and would not lead to an equitable solution.99 The 1978 case of Anglo-French Arbitration also supported such practice. When the U.K. and France could not agreed on how to treat the populated Channel Islands, which belong to Britain but lie close to the French coast, the Tribunal, to achieve an equitable result, ignored the eﬀect of the Channel Islands upon the continental delimitation although the islands were densely populated and entitled to some territorial sea. It simply drew a twelve-mile enclave enclosing the Islands’ territorial ﬁshing regions to the north and northwest.100 Many international boundary agreements exemplify the practice of ignoring some islands in the delimitation. For example, in the 1988 UK-Ireland delimita95

96 97

98

99

100

See the Paper of International Boundary Study issued by the Geographer, Bureau of Intelligence and Research of the Department of State at [17 Apr. 2008]. ICJ Reports 1969, p. 36, para. 57. Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. U.S.), ICJ Reports 1984, pp. 329, 332, paras. 201, 210. Case Concerning the Continental Shelf (Libyan Arab Jamahiriya v. Malta), ICJ Reports 1985, p. 48 and p. 50, para. 64 and para. 70. Case Concerning Maritime Delimitation and Territorial Questions (Qatar v. Bahrain), ICJ Reports 2001, p. 115, para. 248. Case Concerning the Delimitation of the Continental Shelf (U.K. v. France), 18 RIAA (1978), p. 3, reprinted in 18 ILM (1979), p. 397.

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tion the British islet of Rockall was not considered.101 Similarly, when Canada and Denmark delimited a continental shelf boundary between the eastern Arctic islands of Canada and Greenland, the sovereignty and the eﬀect the disputed island would have on the delimitation resulted in the parties ignoring the island completely.102 Usually, ignoring these islands in the delimitation is not due to attributes of the island itself, such as its size or location, but to other considerations by the states concerned, such as equitable results.103 The Diaoyu/Senkaku Islands have neither been inhabited nor have any economic life of their own although they fall into the category of islands as provided in Article 121(1) of the 1982 UNCLOS.104 In 1997, in order to avoid conﬂicts and maintain a normal ﬁshing order in the East China Sea, China and Japan signed the Sino-Japanese Fishery Agreement, which just excludes the EEZ area south of 27° N, and west of 125°30’ E in the East China Sea where Taiwan and the disputed Diaoyu/Senkaku Islands are located.105 It seems that the new Fishery Agreement embodies some positive implications for the boundary delimitation there. To achieve an equitable delimitation in the East China Sea, it is reasonable for China and Japan to ignore the eﬀect of the Diaoyu/Senkaku Islands on the maritime delimitation in the East China Sea. They may simply entitle the Islands to have 12 NM territorial seas and disqualify the Islands from possessing their own EEZ and continental shelf. In that case, the issue of sovereignty over the Diaoyu/Senkaku Islands would be left unsettled for some time without aﬀecting their maritime delimitation in the East China Sea.

5.4

A New Framework for Settlement

No matter which option is taken to settle the disputes in the East China Sea, both China and Japan should commit themselves to taking a legal perspective of their disputes. There is a very sensitive issue involved in the Sino-Japanese dispute – nationalism. For historical reasons, Japan, which invaded China and committed many atrocities against Chinese people during World War II, plays a central role in the rise of Chinese nationalism. Unconstrained nationalism would be used as a

101

102

103 104

105

R. W. Smith and B. L. Thomas. ‘Island Dispute and the Law of the Sea: An Examination of Sovereignty and Delimitation Disputes’ 2 (4) Maritime Brieﬁng (1998), p. 24. See US department of State (1976), Continental Shelf Boundary: Canada-Greenland, Limits in the Seas, No. 72 (4 August). R. W. Smith, op. cit. (1998), p. 23. S. W. Su. ‘The Tiaoyu Islands and Their Possible Eﬀect on the Maritime Boundary Delimitation between China and Japan’ 3 Chinese J. Int’l L. (2004), pp. 391–401. K. Zou. ‘Sino-Japanese Joint Fishery Management in the East China Sea’ 27 Marine Policy (2003), p. 133.

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vehicle for propaganda and the third-party involvement could be regarded as foreign intervention.106 Thus, control of nationalism is a very important step before and during the process of settlement. Otherwise, it would be diﬃcult to avoid confrontation and needless to say the possibility of resolving the inﬂammable disputes. Regarding the option for adjudication, under the statute of the ICJ, member states of the United Nations can issue a declaration, commonly known as the “optional clause declaration,” in which they accept the compulsory jurisdiction of the ICJ for resolving their disputes. States are authorized at any time to amend or repeal these declarations and to attach reservations to them, such as excluding speciﬁc disputes from the ICJ jurisdiction.107 On 9 July 2007, Japan made a new declaration reconﬁrming its acceptance of compulsory jurisdiction of the International Court of Justice conditioned upon “reciprocity” and with the reservation that this jurisdiction would not apply to the disputes that Japan and the other party “have already agreed or shall agree to refer ﬁnal and binding decision to arbitration or judicial settlement.”108 Up to now, this declaration is still binding on Japan. The Republic of China made an optional clause declaration, without reservations, on 26 October 1946.109 However, on 5 December 1972, the PRC refused to recognize the 1946 ROC’s declaration and declared it defunct.110 Since its founding, the PRC has never made any declaration to accept the optional clause of Article 36(2) of the Statute of the ICJ. In the valid Sino-Japanese treaties, the dispute settlement framework is just simpliﬁed into the general principle of peaceful settlement of the disputes between the two States.111 This inadequate dispute settlement framework has been partially to blame for the military race between China and Japan in the East China Sea. It is very necessary to build up a new dispute settlement framework with the third party settlement in mind. To build up a new framework to settle the disputes between China and Japan, China could simply make the “optional clause declaration” to accept the compulsory jurisdiction of the ICJ and then bring Japan before the ICJ for settlement of

106 107 108

109

110 111

G. Ji, op. cit. (1995). ICJ Statute, Art. 36. See Japan’s declaration at [15 Mar. 2008]. At that time, the Republic of China still controlled Mainland China and was the legitimate government representing China. Its control of Mainland China ended in 1949 when it retreated to Taiwan. Secretariat of the United Nations, Treaty Series 1 (1946–1947), p. 35. The 1972 Joint Communique of Japan and the PRC, the 1978 Peace and Friendship between Japan and the PRC and the 1998 Japan-China Joint Declaration, in their settlement sections, just repeat the principle that Japan and China shall in their mutual relations settle all disputes by peaceful means.

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the disputes in the East China Sea. But this seems to be quite unrealistic approach in the predictable future. Of course, Japan and China could also sign a special agreement to submit the disputes to the ICJ or an ad hoc court or tribunal for arbitration. This option would involve the political will of the two countries to use international courts and tribunals. Obviously, China is adamant in its refusal of any third party involvement in the dispute over the sovereignty of the Diaoyu/Senkaku Islands, because the issue of the Diaoyu/Senkaku Islands would bring about the question about the validity of Beijing’s claims to Taiwan.112 The PRC has never changed its attitude of refusing a third party to judge on the sensitive issue of territorial cession. China wants to resolve the maritime boundary dispute in the East China Sea through diplomatic negotiations.113 Japan has the same intention. In its oﬃcial statements, it simply mentions the issue of the delimitation of the continental shelf between Japan and China.114 The talks held between China and Japan focused only on the issues of the maritime delimitation and the joint exploitation of the continental shelf in the East China Sea. Therefore, it seems quite reasonable for China and Japan to opt for the maritime delimitation without prior determination of the title of the Diaoyu/Senkaku Islands. In the diplomatic phase, Japan and China may have to either agree on a complete maritime boundary regardless of the Diaoyu/Senkaku Islands or set up a Joint Development Zone in the disputed area with the sovereignty shelved or submit the delimitation dispute to an international court or tribunal for a settlement with the Diaoyu/Senkaku Islands enclave. Setting up a Joint Development Zone can only be a result of negotiations. But creating a complete maritime boundary can be the result of either negotiations or adjudication or arbitration. No matter what options are to be taken, ignoring the Diaoyu/Senkaku Islands is a very important step toward the settlement of the maritime boundary dispute. Delimiting only the maritime area, while leaving the troubled islands out for an indeﬁnite period of time is a solution with consideration for the prompt need to introduce eﬀective maritime resources management in the East China Sea.115 At ﬁrst, China and Japan should try to reach an agreement on ignoring the eﬀect of the Diaoyu/Senkaku islands through negotiations. Then, they could move on to talk about setting up a Joint Development Zone with the sovereignty shelved.

112

113

114

115

This attitude of the PRC has been noted since the 1970s. See ‘The East China Sea: The Role of International Law in the Settlement of Disputes’ 1973 (4) Duke Law of Journal (1973), pp. 861–2. People’s Daily News, at [17 Apr. 2008]. Press Conference, at [17 Apr. 2008]. R. W. Smith, op. cit. (1998), pp. 26–7.

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No matter whether they could successfully set up a Joint Development Zone through negotiations, after a lapse of a reasonable time, they need to concentrate on the issue of maritime boundary delimitation. By doing this they could restart their talks about a Joint Development Zone once they had settled the maritime boundary dispute. If the two parties were not able to settle the maritime boundary dispute through negotiations, they would move to the second phase, that is to say, they would agree to use international law, especially the 1982 UNCLOS and the relevant principles and rules elaborated by the ICJ and other international courts and tribunals to settle their maritime boundary dispute. Based on this new agreement they could restart their negotiations. The main purpose of this phase would be to increase the parties’ political will and conﬁdence. Appraisal based on the case law of the ICJ would make the parties more aware of their claims and legal justiﬁcations. The third phase is judicial or quasi-judicial. That means that if the disputing parties could not resolve their dispute in the process of the ﬁrst two phases, the parties would be supposed to make a special agreement to submit their dispute to a third party for settlement. The third phase would not be always necessary, but would be quite essential to have this phase in mind in the assumed new framework. China could propose a special agreement providing that the two parties should submit the maritime delimitation dispute to an arbitral tribunal like the ITLOS or an international court like the ICJ if they failed to reach a boundary agreement within a limited time. It would be diﬃcult for either China or Japan to refuse this proposal and suspend the settlement, because this act would inevitably damage their international reputation. This phase would give another basis for the two parties to negotiate. They would be more likely to compromise if they preferred not to go to a third party. Meanwhile, this phase, coupled with the previous phases, would help the parties to build up their conﬁdence in submitting their dispute to a third party. Therefore, China and Japan would need to prepare their legal arguments during the diplomatic phases. If the diplomatic eﬀorts failed, they would be encouraged to sign a special agreement to submit their dispute to a third party. Although the Chinese leaders still depend on nationalism and economic performance as sources of legitimacy in the current Chinese political system, political reforms are back on the government’s agenda, which might help the government develop new sources of legitimacy.116 Political reforms and good economic performance would reduce the government’s reliance on nationalism as a source of legitimacy, which would shed more light on the possibility of settling the maritime delimitation dispute between China and Japan.

116

The widespread use of local elections as a means of disciplining corrupt local oﬃcials is one example of how political reforms have the potential to increase the government’s legitimacy and improve state capacity. See E. S. Downs and P. C. Saunders. ‘Legitimacy and the Limits of Nationalism: China and the Diaoyu Islands’ 23 (4) International Security (1998–1999), p. 145.

Chapter 6 The Disputes over the Spratly Islands 6.1

History of Disputes

In the South China Sea, China is also embroiled in both territorial and boundary disputes with its neighbouring States. But the key question is the territorial disputes over the Spratly Islands.1 Without settlement of the disputes over the sovereignty of the Spratly Islands, logically, it would be impossible to delimitate the maritime area around the Spratlys. It would be much easier for the disputing States to settle their maritime boundary disputes if the sovereignty disputes would be resolved, because all the disputing States have acceded to the 1982 UNCLOS, which provides the rules for maritime delimitation. This chapter focuses on the settlement of disputes over the sovereignty of the Spratly Islands. The sovereignty disputes over the Spratly Islands are extremely complicated and intricate. Mainland China, Taiwan, Malaysia, Vietnam, the Philippines and Brunei all make claims either in whole or in part to the small islets of the Spratly Islands and their surrounding water areas. The issue of sovereignty in the South China Sea is regarded as one of the three major factors that might trigger military conﬂicts in the Asia-Paciﬁc region.2 The disputes over the sovereignty of the Spratly Islands could ﬂare up into further armed conﬂict because of the prospect of rich oil and gas deposits around the Islands and the strategic location of the area and the limitations of the Law of the Sea and international law, which fail to provide an eﬀective mechanism and framework for resolving the disputes.3 It should be pointed out at ﬁrst that both the PRC and Taiwan respectively regard themselves as the representative government of China to claim the Spratly Islands. That is to say, the claims of Mainland China and Taiwan to the Islands are all built

1

2

3

Diﬀerent countries refer to the islands by diﬀerent names. Vietnam named the islands the Truong Sa Islands, China named them the Nansha Islands, and the Philippines calls some of them the Kalayaan Islands. See L. G. Gordner. ‘The Spratly Island Dispute and the Law of the Sea’ 25 Ocean Dev. & Int’l L. (1994), pp. 61, 64, 66. The other two factors are the military confrontation in the Korean Peninsula and Taiwan’s separatist activities. See X. Yan ‘Co-operation Key to Regional Peace’ China Daily (Beijing 27 Mar. 1998), p. 4. L. G. Gordner, op. cit. (1994), p. 71.

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up on the “one China policy.” So in this chapter, Taiwan’s claim shall not be treated separately. Actually, no competing claims exist there under the current conception of “one China.” Additionally, any recommendation to resolve the dispute over the Spratly Islands, if it were based on separating Beijing and Taiwan’s claims to the Islands, would become meaningless in practice because such a recommendation would be unacceptable to Beijing whose position in the disputes will be determinative due to its growing economy and military strength.4 The Spratly Islands consist of more than 100 small islands, islets, coral reefs, sands and cays scattering over an area of nearly 410,000 sq km of the central South China Sea.5 There are only 11 islands, 5 sand cays and 20 reefs rising above sea level.6 In general, the Spratly Islands are too small and barren to support permanent human settlement independently, and few have fresh water or any signiﬁcant landbased resources.7 The largest islet in the area, Taiping Island (also named as Itu Aba Island), at approximately 0.43 square kilometers in area is not large enough “to sustain permanent, independent settlement.”8 The Spratly Islands are located in the South China Sea, 900 miles south of the Chinese island of Hainan, 230 miles east of Vietnam, 120 miles west of the Philippine island of Palawan, and 150 miles northwest of the Malaysian state of Sabah.9 The dispute over the Spratly Islands did not come into existence until 1933 when the French Foreign Ministry suddenly declared that France had occupied the

4

5

6

7

8

9

This attitude is adopted by some authors, For example, Professor Omar Saleem. See O. Saleem. ‘The Spratly Islands Dispute: China Deﬁnes the New Millennium’ 15 Am. U. Int’l L. Rev. (1999–2000), pp. 576–7. The South China Sea is categorised as a semi-enclosed sea under the general deﬁnition set down in the 1982 UNCLOS. Hundreds of uninhabited islets, shoals, reefs, banks, sands, cays and rocks are distributed in the form of four groups of islands and underwater features, i.e. the Pratas Islands (Dongsha Islands), the Paracel Islands (Xiasha Islands), the Macclesﬁeld Bank (Zhongsha Islands) and the Spratly Islands (Nansha Islands). See K. Zou. ‘The Chinese Traditional Maritime Boundary Line in the South China Sea and Its Legal Consequences for the Resolution of the Dispute over the Spratly Islands’ 14 Int’l J. Marine & Coastal L. (1999), p. 28. See also the Spratly Islands at [17 Mar. 2008]. J. Shen. ‘International Law Rules and Historical Evidences Supporting China’s Title to the South China Sea Islands’ 21 Hastings Int’l & Comp. L. Rev. (1997–1998), p. 2. Y. Bochu. ‘Jiakuai nansha haiyu de youqi diaocha hanwei woguo de ziyuan quanyi (Accelerating the Oil and Gas Surveys in the South China Sea Area, and Protecting Our Country’s Rights and Interests in Natural Resources)’ in Symposium on the South China Sea Islands: Selected Papers (Institute for Marine Development Strategy, State Oceanic Administration, Beijing 1992), p. 213. See generally D. Hancox and V. Prescott. ‘A Geographical Description of the Spratly Islands and an Account of Hydrographic Surveys Amongst Those Islands’ in Maritime Brieﬁng (International Boundaries Research Unit, special issue, 1995). M. Bennett. ‘The People’s Republic of China and the Use of International Law in the Spratly Island Dispute’ 28 Stan. J. Int’l L. (1992), p. 425, pp. 429–30. J. Shen, op. cit. (1997–1998), p. 4. L. G. Gordner, op. cit. (1994), p. 61.

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Spratly Island and ﬁve other islands. Actually, when the French took possession of the islands in the 1930s, three Chinese were living on an island called the Spratly Island and Chinese homes and temples were found on the other islands.10 The French action brought about immediate protests, not only from China, but also from Japan which also claimed the Islands. During World War II, Japan occupied the Spratly Islands. In 1945 when the War ended, the Japanese troops withdrew and the Islands remained unoccupied for more than a year.11 In November 1946, the Republic of China (ROC) sent its troops to the Islands and garrisoned on Taiping Island, the largest island in the Spratly Islands.12 The Chinese oﬃcials made a comprehensive survey of the area and the Ministry of Internal Aﬀairs published new names for many of the Spratly Islands.13 In 1947, the newly founded Philippines Government advocated that all the islands in the South China Sea should be given to the Philippines.14 In 1956, a private expedition led by a Filipino named Tomas Clomas landed on the Spratlys and claimed their discovery. Without support from the Philippine Government, Clomas and his party abandoned the islands a few months later.15 After the defeat in Mainland China, the government of ROC withdrew the last of its troops from the Spratly Islands in May 1950.16 Since the founding of the PRC in October 1949, the new Chinese government has repeated its claim to the Spratly Islands consistently.17 Chinese Prime Minister Zhou Enlai in a statement issued in August 1951 restated China’s claim to the Islands.18 When Tomas Clomas launched a private expedition to the Spratly Islands and named them “Freedomland”, the ROC protested to the Philippine government and sent garrison forces to

10

11 12

13 14 15 16

17

18

It was reported by the French themselves that there were three Chinese living on the Spratly Island in 1930. See Saix. ‘Iles Paracels’ La Geographie (Nov.–Dec. 1933), reprinted in 3 Waijiao pinglun (Foreign Aﬀairs Review), p. 66. See also T. Cheng. ‘The Dispute over the South China Sea Islands’ 10 Tex. Int’l L. J. (1975), pp. 268–9. M. Bennett, op. cit. (1992), p. 437. H. Chiu and C.-H. Park. ‘Legal Status of the Paracel and Spratly Islands’ 3 Ocean Dev. & Int’l L. J. (1975), p. 13. Ibid. Ta Kung Pao (Shanghai 26 Jan. 1947), p. 3. See also T. Cheng, op. cit. (1975), p. 270. M. Bennett, op. cit. (1992), p. 438. H. Chiu and C.-H. Park. ‘Legal Status of the Paracel and Spratly Islands’ 3 Ocean Dev. & Int’l L. J. (1975), p. 14. G. Ji. ‘The Spratly Islands: China’s Dispute with Vietnam’ (40) Indochina Report ( Jul.–Sep. 1999), pp. 19–20. The statement was issued just days before the signing of the San Francisco Treaty of Peace between the U.S. and Japan on 8 September 1951, saying, “The inviolable sovereignty of the People’s Republic of China over Nansha (Spratly Islands) and the Xisha (Paracel) archipelago will by no means be impaired, irrespective of whether the American-British draft for a peace treaty with Japan should make any stipulation and of the nature of any such stipulation.” Beijing Review (Beijing 22 Jul. 1977).

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Taiping Island, to defend the Spratly Islands.19 Ever since the ROC has maintained a garrison on the island.20 Before the early 1970’s, the situation in the Spratlys remained relatively calm because the value of the islands’ known resources, primarily ﬁsh and guano, did not justify the expense of excising control over the Spratlys.21 The emerging oil potential of the area around the islands ignited a rush of occupations in the Spratlys.22 The 1973 oil crisis and the substantial rise of oil price further stimulated the struggle in the area.23 In 1971, the Philippines oﬃcially claimed the largest area of the Spratly – a zone refered to as Kalayaan and began oil exploration in 1976. In 1978, the Philippines government issued a presidential decree declaring Kalayaan as part of the national territorial.24 Before 1975, North Vietnam had recognized Chinese sovereignty over the Paracel and Spratly Islands.25 In 1975, North Vietnam defeated South Vietnam and reuniﬁed Vietnam and began to renege on its commitment to China by asserting its own Spratly claims.26 Meanwhile, Malaysia also extended its continental shelf in 1979 and included some features of the Spratlys into its territory.27 China continued to refute the claims made by other States. In July 1977, Chinese Foreign Minister Huang Hua reconﬁrmed China’s claim to all the Spratly Islands.28 In the 1980s, the report made by the UN Economic Commission in Asia on the possibility of potential petroleum deposits around the Spratly Islands further raised

19

20

21 22 23 24

25 26 27

28

T.-K. Chang. ‘China’s Claim of Sovereignty over Spratly and Paracel Islands: A Historical and Legal Perspective’ 23 Case W. Res. J. Int’l L. (1991), p. 418. M. H. Katchen. ‘The Spratly Islands and the Law of the Sea: “Dangerous Ground” for Asian Peace’ 17 Asian Survey (1977), p. 1179. M. Bennett, op. cit. (1992), p. 439. Ibid. G. Ji, op. cit. (1995). D. C. Drigot. ‘Oil Interests and the Law of the Sea: The Case of the Philippines’ 12 Ocean Dev. & Int’l L. (1983), p. 23. T.-K. Chang, op. cit. (1991), p. 417. L. G. Gordner, op. cit. (1994), p. 66. L. C. Kin. China’s Policy towards Territorial Disputes (Routledge, London 1989), pp. 153–4. See also J. R. Coquia. ‘Maritime Boundary Problems in the South China Sea’ 24 U. Brit. Colum. L. Rev. (1990), p. 119. Chinese Foreign Minister Huang Hua publicly said, “The territory of China reaches as far south as the James Shoals, near Malaysia’s Borneo territory . . . I remember that while I was still a schoolboy, I read about those islands in the geography books. At that time, I never heard anyone say those islands were not China’s . . . The Vietnamese claim that the islands belong to them. Let them talk that way. They have repeatedly asked us to negotiate with them on the issue; we have always declined to do so . . . As to the ownership of the islands, there are historical documents that can be veriﬁed. There is no need for negotiations since they originally belonged to China.” Beijing Review (Beijing 22 Jul. 1977).

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international interest and attracted more countries to claim their sovereignty.29 Brunei and Indonesia in the late 1980s and the early 1990s respectively established their exclusive economic zones of 200 nautical miles that extend to the south of the Spratly Islands.30 In 1988 and 1992, military clashes broke out between China and Vietnam in the South China Sea. Up to now, China, Vietnam and the Philippines have enacted legislation incorporating the Spratlys into their territory.31 Except for Brunei, all the claimants have established military presence there. Similar with the situation in the East China Sea, the interests in the deposit of oil and gas around the Spratly Islands are the main motivation for the States concerned to compete for the uninhabited tiny islands. Advances in drilling technology and the rising interest of foreign companies in searching for petroleum resources in the South China Sea have intensiﬁed the disputes. Many U.S. and Western oil companies have been involved in oil exploratory activities respectively with China and Vietnam in the Spratlys ever since the 1990s.32 As a result, the disputes were highlighted by these economic activities. In May 1992, when Beijing let a concession to a foreign company – the Crestone Energy Corporation – to explore oil in the western area of the Spratlys,33 Vietnam immediately lodged a protest against China’s concession.34 Similarly, China also protested against the Vietnamese concession to foreign oil companies. On 8 February 1995, the Philippines discovered the Chinese occupation of Mischief Reef, located in Kalayaan, the part of the Spratly Islands claimed by the Philippines. Then, the Philippine President Fidel Ramos strongly criticized China’s action. Manila responded by taking retaliatory measures that included the destruction of Chinese territorial markers and the arrest

29

30

31 32 33

34

S. Yeh. ‘Nansha Feng Yun Yo Kuo-Chi Kung-Fa (Nansha Situation and International Law)’ 19 Econ. & L. (1988), pp. 27–8. Although Indonesia has made no Spratly claim, its Natuna gas ﬁeld was depicted within Chinese territory on a 1992 oﬃcial Chinese map of the South China Sea. See C. Liu. ‘Chinese Sovereignty and Joint Development: A Pragmatic Solution to the Spratly Islands Dispute’ 18 Loy. L. A. Int’l & Comp. L. J. (1995–1996), Note One, p. 865; ‘Chinese Bureaucrats Draw the Line in South China Sea’ Petroleum Economist ( Jul. 1995), p. 16. H. H. L. R. Jr. ‘China’s Claim to the Spratlys Islands’ 15 J. Energy Nat. Resources (1997), p. 195. G. Ji, op. cit. (1995). K. Zou. ‘The Chinese Traditional Maritime Boundary Line in the South China Sea and Its Legal Consequences for the Resolution of the Dispute over the Spratly Islands’ 14 Int’l J. Marine & Coastal L. (1999), pp. 35–6. D. Hancox and V. Prescott. ‘A Geographical Description of the Spratly Islands and an Account of Hydrographic Surveys Amongst Those Islands’ in Martime Brieﬁng (International Boundaries Research Unit, special issue, 1995), pp. 6, 16. See Statement Of The Ministry Of Foreign Aﬀairs of the Socialist Republic of Vietnam on the Agreement between Chinese and US Oil Companies for the Exploration and Exploitation of Oil and Gas on the Continental Shelf of Vietnam (Hanoi, Ministry Of Foreign Aﬀairs, 16 May 1992; as cited in S. P. Kim. ‘China’s Changing Policies toward the South China Sea’ 12 American Asian Review (1994), p. 69, note 5).

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of Chinese ﬁshermen.35 On 17 April 1996, a spokesman from the Chinese Foreign Ministry stated that Vietnam’s grant of rights to foreign petroleum companies for oil exploration in the sea area of the Spratly Islands was “illegal and invalid” and “an encroachment on China’s sovereignty and its maritime rights and interests.” The entire area covered by the Vietnamese contract falls within the Wan’an Tan Bei-21 block licensed by Beijing to Crestone Energy Corporation.36 In March 1999, Malaysia’s seizure of Navigator Reef caused protestations from the Philippines, Vietnam, Brunei and China.37 In order to prevent further tensions over the disputed territories and to reduce the risks of military conﬂict in the South China Sea, the ASEAN foreign ministers and the Chinese Vice Foreign Minister, Wang Yi, signed a Declaration on the Conduct of Parties in the South China Sea on the sidelines of the ASEAN summit in Phnom Penh in November 2002.38 In fact, the Declaration is political rather than legal, but it is regarded as the ﬁrst step for China and the ASEAN members to reach agreements on joint oil exploration and development schemes.39 In order to commit itself to a peaceful settlement, the PRC acceded to the Treaty of Amity and Cooperation (the TAC) on 8 October 2003, which is a binding treaty rather than a political declaration.40 In May 2004, Vietnam started re-building a runway on the disputed island of Truong Sa Lon (Big Spratly) with the purpose of sending small groups of Vietnamese tourists to the South China Sea.41 China strongly criticised the Vietnamese actions and described them as violating the 2002 Declaration.42

6.2 6.2.1

Conﬂicting Claims Chinese Claims

China claims all the islands in the Spratly archipelago based on discovery and occupation, treaty and estoppel. In the Chinese claims, the Chinese ﬁrst discovery of the Spratly Islands can date back as far as more than 2000 years ago. Many Chinese historical books, records

35

36 37 38 39 40

41

42

R. Emmers. Maritime Dispute in the South China Sea: Strategic and Diplomatic Status Quo (Institute of Defence and Strategic Studies, Nanyang Technological University, Singapore 2005), p. 6. K. Zou, op. cit. (1999), p. 36. R. Emmers, op. cit. (2005), p. 7. Ibid., p. 11. Ibid., pp. 9–14. People’s Daily News, at [18 Mar. 2008]. Vietnam Rebuilds Spratly Airport, BBC News, at [8 Mar. 2008]. Xinhua News, at [8 Mar. 2008].

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and documents support its claim, for example, Yi Zhou Shu (Scattered Books of the Zhou Dynasty), and Shi Jing (The Classics of Peoms), Zuo Zhuan (Zuo’s Commentaries), Guo Yu (Statements of the States) all mentioned the Spratly Islands.43 Between 1405 and 1433, Zheng He (also known as Cheng Ho), a well-known navigator and a high-ranking oﬃcial of the Ming imperial court led seven large-scale voyages through the South China Sea and recorded the location of the Paracel and Spratly Islands.44 China claimed that it started to exercise authority over the Spratly Islands in the form of naval patrol since the Han Dynasty (206 B.C.–220 A.D.).45 The patrol activities by various Chinese dynasties continued until modern times.46 In 1909, the Governor of Guangdong and Guangxi, Zhang Renjun, sent the naval oﬃcerin-charge, Li Zhun, to the Spratly Islands area. His crew erected stone markers, raised Chinese ﬂags and held cannon-shooting ceremonies to demonstrate China’s sovereignty.47 Since the replacement of the Qing Dynasty with the Republic of China in 1911, the Chinese government continued to exercise authority over the Islands and entrusted administration of the Islands to the local government of Hainan, which was a special prefecture within Guangdong Province.48 Although France and Japan once occupied the Spratly Islands respectively from 1933 to 1945, the Chinese government never stopped its protest and condemnation.49 China emphasized that neither the French nor the Japanese occupations changed the territorial status of the islands in the South China Sea because they were illegal and invalid under international law.50 At the end of World War II, Japan renounced the Spratly Islands and withdrew its troops. In November 1946, the ROC sent representatives with warships to resume its control over the islands and set up an Administration to exercise jurisdiction over the islands in the South China Sea including the Spratly Islands under the Guangdong Province and later the Hainan Administrative District.51 In 1956, the ROC under the name of China sent its naval contingent to the Spratly Islands to

43

44 45 46 47

48

49 50 51

These books are the classic collections of the Spring and Autumn Period (772–482 B.C.). See J. Shen. ‘China’s Sovereignty over the South China Sea Islands: A Historical Perspective’ 1 Chinese J. Int’l L. (2002), pp. 101–5. Ibid., p. 112. Ibid. Ibid., pp. 112–5. M. Duan. International Law (Peking University Press, Beijing 1989), p. 156. See also J. Shen, op. cit. (2002), p. 135. J. Shen. ‘International Law Rules and Historical Evidences Supporting China’s Title to the South China Sea Islands’ 21 Hastings Int’l & Comp. L. Rev. (1997–1998), p. 37. J. Shen, op. cit. (1997–1998), pp. 42–3. Ibid., p. 44. T.-K. Chang, op. cit. (1991), p. 412.

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defend the Philoppino invasion and retained its troops on the Taiping Island up to now.52 Meanwhile, the PRC has never given up its claim of jurisdiction over the Spratly Islands since it was founded in October 1949. China believes China’s sovereignty over the Spratly Islands has never been interrupted during and after the government transition.53 On 4 September 1958, the PRC promulgated a decree in which it conﬁrmed its sovereignty over the Spratly Islands.54 In March 1959, the PRC established an oﬃce in charge of Xisha, Nansha (the Spratlys) and Zhongsha Islands. The oﬃce during the Cultural Revolution (1966–1976) changed its name into the Revolutionary Committee of the Xisha, Zhongsha and Nansha Islands of Guangdong Province.55 In January 1988, the PRC sent its troops to some islands of the Spratly archipelago and built a ferry and a helicopter airport on Yong Shu Island (Fiery Cross or N. W. Investigator Reef ). The PRC also built a Maritime Observation Station on the Island based on the UNESCO plan and support. In March 1988, the PRC even fought against an invasion of the Spratly Islands by Vietnam.56 China claims that its jurisdiction over the Spratly Islands has been consistent and the occupations of some of the Spratly Islands by foreign countries are all illegal and invalid.57 China uses various oﬃcial maps and encyclopedia to support its occupation of the Spratly Islands.58 The maps listed as illustrations published by the Qing Dynasty of China (1644–1912) include:59

52

53 54

55

56 57

58 59

M. H. Katchen. ‘The Spratly Islands and the Law of the Sea: “Dangerous Ground” for Asian Peace’ 17 Asian Survey (1977), p. 1179. T.-K. Chang, op. cit. (1991), p. 408. See Article 2 of the Declaration of Territorial Sea of the PRC at [18 Mar. 2008]. Memorandum of the Ministry of Foreign Aﬀairs of the People’s Republic of China on the Question of Xisha and Nansha Islands (12 May 1988). T.-K. Chang, op. cit. (1991), p. 408. D. Shi ‘Nanhai zhudao zigu jiushi woguo lingtu (The Islands in South China Sea have been China’s Territory ever since Ancient Times)’ Guang Ming Daily (Beijing 24 Nov. 1975). See also the Chinese Government’s Statements in People’s Daily (Beijing 17 Jul. 1971, 12 Jan. 1974, 20 Jan. 1974, 5 Feb. 1974, 29 Dec. 1978, 27 Sep. 1979, 30 Jan. 1980, 22 Jul. 1980, 29 Nov. 1982, 8 Jan. 1986, 3 Dec. 1987, 21 Apr. 1988, 29 Sep. 1989, 28 Dec. 1990, 24 Jan. 1992, 9 Sep. 1994, 16 Dec. 1994). See also the statements made by the spokesman of Ministry of Foreign Aﬀair of the PRC on 13 Feb. 2001 at [18 Mar. 2008]. D. Shi, op. cit. (1975). See Document of Ministry of Foreign Aﬀairs of the PRC Concerning the Issues in the South China Sea at [18 Mar. 2008]. See also T.-K. Chang, op. cit. (1991), p. 405.

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(1) The 1724 Map of the Provinces Directly under Qing Authority (Qing Zhi Sheng Feng Tu); (2) The 1755 Map of the Provinces Directly under the Imperial Qing Authority (Huang Qing Zhi Sheng Fen Tu); (3) The 1767 Map of Eternally United Great Qing Empire (Da Qing Wan Nian Yi Tong Tian Xia Tu); (4) The 1810 Map of the Eternally United Great Qing Empire (Da Qing Wan Nian Yi Tong Di Liang Quan Tu); (5) The 1817 Map of the Uniﬁed Territory of the Great Qing Empire (Da Qing Yi Tong Tian Xia Quan Tu). The maps published in other countries and listed as proof of international recognition of the Spratlys as China’s territory since 1949 include:60 (1) The Welt-Atlas published by the Federal Republic of Germany in 1954, 1961 and 1970 respectively; (2) World Atlas published by the Soviet Union in 1954 and 1967 respectively; (3) World Atlas published by Romania in 1957; (4) Oxford Australian Atlas and Philips Record Atlas published by Britain in 1957 and Encyclopedia Britannica World Atlas published by Britain in 1958; (5) World Atlas drawn and printed by the mapping unit of the Headquarters of the General Staﬀ of the People’s Army of Vietnam in 1960; (6) Haack Welt Atlas published by German Democratic in 1968; (7) Daily Telegraph World Atlas published by Britain in 1968; (8) Atlas International Larousse published by France in 1968 and 1969 respectively; (9) World Map Ordinary published by the Institut Geographique National (IGN) of France in 1968; (10) World Atlas published by the Surveying and Mapping Bureau of the Prime Minister’s Oﬃce of Vietnam in 1972 and; (11) China Atlas published by Neibonsya of Japan in 1973. In addition, all the maps published by both the ROC and PRC included the Spratly Islands as the Chinese territory.61 In 1948, the ROC oﬃcially published the Atlas of Administrative Area of the Republic of China and this map has had substantial inﬂuence over subsequent maps either published by the mainland or by Taiwan.62

60

61 62

International Recognition of China’s Sovereignty over the Nansha Islands, at [18 Mar. 2008]. J. Shen, op. cit. (1997–1998), p. 37. K. Zou, op. cit. (1999), p. 33.

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After the PRC replaced the ROC in the mainland in 1949, the maps of the South China Sea were the same as before 1949.63 China believes that its occupation of the Spratly Islands has international recognition. For example, in 1955, in Manila the International Civil Aviation Organization (ICAO) held the Conference on Paciﬁc Region Aviation, which was attended by the representatives from 16 countries and areas, such as Australia, Canada, U.K., U.S., Japan, France, Thailand, New Zealand, the Philippines, Vietnam, the ROC, etc.. When ICAO at the Conference assigned the ROC the task to improve meteorological observations throughout the Spratly Islands, no representatives including the ones from the Philippines and Vietnam made a protest or reservation.64 The aforementioned instances of recognition of Chinese sovereignty claims to the Spratly Islands by certain cartographers are also the evidences China depends on to declare that its occupation has international recognition. China buttresses up its occupation with Vietnam’s oﬃcial acknowledgement of the Spratly Islands as being China’s territory before 1975. When China took over the Spratly Islands from Japan in 1946, and published new names for each of the Islands, neither Vietnam nor any country protested to China regarding to its actions. On 15 June 1956 Vietnamese Vice Foreign Minister Ung Van Khiem publicly stated to the Chinese Charge d’Aﬀaires, Li Zhimin, “according to Vietnamese data, the Xisha (Paracel) and Nansha (Spratly) Islands are historically part of Chinese territory.”65 On 4 September 1958, China proclaimed the breadth of its territorial sea to be 12 nm and speciﬁed that this provision applies to all Chinese territories including the Spratlys. On 14 September, Vietnam’s late premier Pham Van Dong in his note to Beijing aﬃrmed that Vietnam “recognizes and supports” China’s declaration and “respects this decision.”66 China believes that these recognitions constitute estoppel and thus Vietnam is estopped from asserting otherwise.67 China also argues that international treaties constitute further evidence of Chinese ownership of the Spratly Islands. From China’s viewpoint, the Spratly Islands should be part of the Chinese territory Japan seized during World War II and therefore should be returned to China after the war under both the 1943 Cairo Declaration and the 1945 Potsdam Proclamation.68 In China’s interpretation, even if the treaties do not stipulate unequivocally that these islands should be returned to China after the Japanese renunciation, the following events imply that these

63 64

65

66 67 68

Ibid., p. 34. Document of Ministry of Foreign Aﬀairs of the PRC Concerning the Issues in the South China Sea at [18 Mar. 2008]. N. Han. (ed.) Diplomacy of Contemporary China (New Horizon Press, Hong Kong 1990), p. 332, 411. Ibid. Ibid. Ibid.

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islands should be returned to China. In 1946, China held a take-over ceremony on the Spratly Islands, and in 1952, the year after the San Francisco Treaty was signed, Japan stated that it had renounced all rights to Taiwan, the Spratly Islands, and other islands that it occupied during the war.69 At the same year, the 15th map of Southeast Asia of the Standard World Atlas, recommended by the signature of the then Japanese Foreign Minister, Cats Okazaki, marks as part of China all the Paracel and Spratly islands which Japan had to renounce as stipulated by the Treaty of Peace with Japan.70 The PRC has reiterated its sovereignty over the Spratly Islands ever since its founding. In 1951, the PRC Foreign Minister reconﬁrmed China’s sovereignty over the Spratly Islands in his statement.71 In 1956, the PRC Foreign Ministry pronounced a similar statement.72 In 1958, the PRC issued a Declaration of the Territorial Sea, which claimed that the Spratly Islands belonged to China.73 In the following years, such announcements continued.74 On 25 February 1992, the Chinese National People’s Congress, which functions as the Parliament of the PRC, codiﬁed China’s claim to sovereignty over the Spratly Islands by passing the Law of the PRC on the Territorial Sea and Contiguous Zone, Article 2 of which provides that China’s territory includes the Spratly Islands.75

69

70

71

72 73 74

75

Ibid. Here the PRC actually refers to the the 1951 Treaty of Peace with Japan and the 1952 Treaty of Peace between the Republic of China and Japan, in which Japan denounced its right to the Spratly Islands, though it once refused the binding force of the two treaties upon itself due to its absence in the signatories. Document by the Ministry of Foreign Aﬀairs of the PRC (30 January 1980). See also G. Ji, op. cit. (1995). In 1951, before the Treaty of Peace with Japan, Zhou En-lai, the PRC Foreign Minister, stated: “These lands . . . although they were occupied by Japan for some time during the war . . . were all taken over by the Chinese government following Japan’s surrender. Whether or not the U.S.-British Draft Treaty contains provisions on this subject, and no matter how these provisions are worded, the inviolate sovereignty of the PRC over [Spratly] Islands . . . will not be aﬀected in any way.” See B. Scott. ‘Resolving the Question of Sovereignty over the Spratly Islands’ 3 Willamette Bull. Int’l L. & Pol’y (1995), p. 44. H.-C. Shao. ‘Chinese Islands in the South China Sea’ 13 People’s China (1956), p. 27. L. G. Gordner, op. cit. (1994) p. 64. See the Chinese Government’s Statements in People’s Daily (Beijing 17 Jul. 1971, 12 Jan. 1974, 20 Jan. 1974, 5 Feb. 1974, 29 Dec.1978, 27 Sep. 1979, 30 Jan. 1980, 22 Jul. 1980, 29 Nov. 1982, 8 Jan. 1986, 3 Dec. 1987, 21 Apr. 1988, 29 Sep. 1989, 28 Dec. 1990, 24 Jan. 1992, 9 Sep. 1994, 16 Dec. 1994). Article 2 of the Law of the PRC on the Territorial Sea and Contiguous Zone provides: “The PRC’s territorial waters refer to the island waters contiguous to its territorial land. The PRC’s territorial land includes the mainland and its oﬀshore islands, Taiwan, and the various aﬃliated islands, including Diaoyu Dao (the Senkaku Islands), the Penghu Islands (the Pescadores), the Nansha Islands (the Spratly archipelago), and other islands that belong to the PRC.” See L. Wang and P. H. Hearse. ‘The New Legal Regime for China’s Territorial Sea’ 25 (4) Ocean Dev. & Int’l L. (1994), pp. 431–42.

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6.2.2

Vietnamese Claims

Vietnam claims ownership of the entire Spratly Islands mainly based on discovery and occupation.76 At the 1951 San Francisco Peace Conference, the former Saigon government said that the Spratly Islands “have always belonged to Vietnam.”77 In 1971, South Vietnam (the Republic of Vietnam) issued a “Declaration on the Sovereignty of the Republic of Vietnam over the Archipelago of Paracels and Spratly”, in which it stated that the Spratly Islands (Thruong Sa) were included as part of the Vietnamese territory under Emperor Minh Mang in 1830.78 Vietnam also invokes the principle of state succession to strenghthen its claim. South Vietnam once viewed its title to the islands as succession from its colonial power, France.79 Notwithstanding the fact that the government of North Vietnam had concurred with Chinese claims of sovereignty over the Spratly Islands in the 1950s, in 1975, the reunited Vietnam reasserted its claim to the entire archipelago based on South Vietnam’s justiﬁcations. In May, the China Department of the Vietnamese Foreign Ministry declared “the Truong Sa Islands (Spratly Islands) had been Vietnamese territory since ancient times.”80 6.2.3

Philippine Claims

The Philippine Government claims to approximately 60 of islands in the Spratly archipelago based on discovery and proximity. On 10 July 1971, the Philippine Government announced that it “had sent a diplomatic note to Taipei asking the the Chinese garrison be withdrawn from Itu Aba.” The legal reasons asserted by the Philippine Government were that the Philippine explorer, Tomas Cloma, discovered the Spratly Islands in the early 1950’s and the Islands were within its archipelagic territory.81 On 11 June 1978, President Ferdinand Marcos signed Presidential Decree 1596 claiming sovereignty over the Kalayaan group (some of the Spratly Islands), which was identical to the Cloma claim except that it omitted Spratly Island proper and included Amboyna Cay.82 In 1998, when Beijing expanded some permanent structures it had built earlier on Mischief Reef, one 76

77 78 79

80

81

82

B. Scott. ‘Resolving the Question of Sovereignty over the Spratly Islands’ 3 Willamette Bull. Int’l L. & Pol’y (1995), p. 45. T.-K. Chang, op. cit. (1991), p. 416. Ibid. R. D. Beller. ‘Analyzing the Relationship between International Law and International Politics in China’s and Vietnam’s Territorial Dispute over the Spratly Islands’ 29 Tex. Int’l L. J. (1994), p. 305. N. Han. (ed.) Diplomacy of Contemporary China (New Horizon Press, Hong Kong 1990), p. 332. New York Times (11 Jul. 1971), Col. 1, p. 18. See also T. Cheng. ‘The Dispute over the South China Sea Islands’ 10 Tex. Int’l L. J. (1975), p. 270. B. H. Dubner. ‘The Spratly “Rocks” Dispute – A “Rockapelago” Deﬁes Norms of International Law’ 9 Temp. Int’l & Comp. L. J. (1995), p. 312.

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part of the Spratlys, the Philippines claimed the sovereignty of Mischief Reef based on the fact that the Reef is just within its exclusive economic zone. It asserted that the Spratly Islands are over one thousand miles away from China’s coast.83 In fact, the Philippine Government also justiﬁed its claims based on the continental shelf of the 1982 UNCLOS.84 Under the 1982 UNCLOS, state territory includes both a continental shelf, which allows for the exploitation of natural resources, and an exclusive economic zone that can extend limited sovereignty to a distance of approximately 200 nautical miles from the coastline.85 6.2.4

Malaysian Claims

Malaysia claims some of the islands in the Spratly region based on geographic proximity.86 In 1996, Malaysia passed a Continental Shelf Act based on the provisions of the 1958 Geneva Convention on the Continental shelf. The southern Spratly Islands claimed by it coincides with its continental shelf area deﬁned in the 1979 Map of Malaysia. The map showed the Malaysian jurisdiction over all the islands and atolls on the shelf based on the 1958 and 1982 treaties on the Law of the Sea.87 In 1984, Malaysia proclaimed an Exclusive Economic Zone Act, which provided that its jurisdiction shall extend to the southern part of the Spratly Islands, such as Pulau Amboyna Kecil (Amboyna Cay), Terumbu Laksamana (Commodore Reef ) and Terumbu Semarang Barat Kecil (Louisa Reef ). Malaysia also uses Article 121(1) of the 1982 LOS Convention to support its claim.88 6.2.5

Bruneian Claims

Like Malaysia, Brunei claims the southern portion of the Spratlys based on geographic proximity.89 In 1988, a Brunei map displays a continental shelf that extends beyond Riﬂeman Bank apparently based on a 350-nautical-mile continental shelf interpretation.90 On 21 July 1993, Brunei issued Declaration on the Exclusive Economic Zone,91 establishing an EEZ that extends to the south of the Spratly Islands and compromises the Louisa Reef.92

83

84 85 86 87 88

89 90 91 92

O. Saleem. ‘The Spratly Islands Dispute: China Deﬁnes the New Millennium’ 15 Am. U. Int’l L. Rev. (1999–2000), p. 542. B. H. Dubner, op. cit. (1995), p. 313. UNCLOS, Arts. 55–85. O. Saleem, op. cit. (1999–2000). B. H. Dubner, op. cit. (1995), p. 313. Ibid. See also C. Liu. ‘Chinese Sovereignty and Joint Development: A Pragmatic Solution to the Spratly Islands Dispute’ 18 Loy. L. A. Int’l & Comp. L. J. (1995–1996), p. 873. L. G. Cordner, op. cit. (1994), p. 68. Ibid., p. 68. K. Zou, op. cit. (1999), p. 39. Ibid.

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Appraisal

As far as the legal basis is concerned, China depends on discovery and occupation, treaty and estoppel, and Vietnam counts on discovery and occupation, and the Philippines relies on discovery and proximity, and both of Malaysia and Brunei back on geographic proximity. The recent ICJ case of Sovereignty over Pulau Litigan and Pulau Sipadan (Indonesia v. Malaysia)(hereinafter the Indonesia v. Malaysia case),93 in which Indonesia and Malaysia, two Southeast Asian States, were also competing for the sovereignty of very small uninhabited islands and the dispute was also caused by the exploitation of potential oil resources around the disputed islands, embodies many legal implications for the territorial disputes in the South China Sea. 6.3.1

The Situation in the Light of the Indonesia v. Malaysia case

In 1998, Indonesia and Malaysia, by special agreement, asked the ICJ to determine sovereignty of the two originally uninhabited islands of Ligitan and Sipadan on the basis of the treaties, agreements and any other evidence furnished by the Parties.94 In other words, the Parties presented arguments based on treaty law, uti possidetis, eﬀective control, and history.95 Ligitan and Sipadan are two very small islands located in the Celebes Sea, oﬀ the northeast coast of the island of Borneo. After their independence, Indonesia and Malaysia began to grant oil-prospecting licences in waters oﬀ the east coast of Borneo during the 1960s. The present dispute crystallized in 1969 in the context of discussions concerning the delimitation of the respective continental shelves of the two States. Following those negotiations a delimitation agreement was reached on 27 October 1969. It entered into force on 7 November 1969. However, it did not cover the area around the islands of Ligitan ans Sipadan.96 After the Parties brought the dispute before the ICJ, the Court began by recalling the complex historical background of the dispute between the Parties.97 It then examined the titles invoked by them. Indonesia’s claim to sovereignty over the islands was based primarily on a conventional title, the 1891 Convention between Great Britain and the Netherlands. Indonesia maintained: “Under the Convention title to those islands vested in The Netherlands, and now vests in Indonesia.”98 Malaysia, for its part, asserted that the 1891 Convention just clari-

93 94 95 96 97 98

ICJ Reports 2002, p. 625. Ibid., pp. 630–1, paras. 1–2. B. T. Sumner, op. cit. (2003–2004), p. 1803. ICJ Reports 2002, p. 642, para. 31. Ibid., pp. 634–42, paras. 15–31. Ibid., pp. 643–4, paras. 32, 34.

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ﬁed the boundary of land on the islands of Borneo and Sebatik, diﬀerent from the islands of Ligitan and Sipadan.99 The Court then directly examined the 1891 Convention, the relevant travaux préparatoires, the subsequent conduct of the parties to the Convention and the cartographic material submitted by the Parties. Consequently, the Court concluded that the Convention did not constitute a title on which Indonesia can found its claim to Ligitan and Sipadan.100 Then the Court turned to the question whether Indonesia or Malaysia obtained title to Ligitan and Sipadan by succession.101 The Court did not accept Indonesia’s contention that it retained title to the islands as successor to the Netherlands, which allegedly acquired it through contracts concluded with the Sultan of Bulungan, the original title-holder. Nor did the Court accept Malaysia’s contention that it acquired sovereignty over the islands of Ligitan and Sipadan further to a series of alleged transfers of the title originally held by the former sovereign, the Sultan of Sulu, that title having allegedly passed in turn to Spain, the United States, Great Britain on behalf of the State of North Borneo, the United Kingdom of Great Britain and Northern Ireland and ﬁnally to Malaysia.102 Having found that neither of the Parties had a treaty-based title to Ligitan and Sipadan, the Court next considered the question whether Indonesia or Malaysia could hold title to the disputed islands by virtue of the eﬀectivités cited by them.103 In this regard, the Court relied on activities evidencing an actual, continued exercise of authority over the islands, i.e., the intention and will to act as sovereign to determine whether the Parties had gained the sovereignty of the two islands. Indonesia believed that it had obtained eﬀective control of the disputed islands based on the traditional activities by Indonesian ﬁshermen around the islands. The Court refused this claim. The Court considered that “activities by private persons cannot be seen as eﬀectivités if they do not take place on the basis of oﬃcial regulations or under governmental authority.”104 Malaysia cited the measures taken by the North Borneo authorities to regulate and control the collecting of turtle eggs on Ligitan and Sipadan. It relied on the Turtle Preservation Ordinance of 1917 and maintained that the Ordinance “was applied until the 1950s at least” in the area of the two disputed islands. It further invoked the fact that the authorities of the colony of North Borneo constructed a lighthouse on Sipadan in 1962 and another on Ligitan in 1963, that those lighthouses exist to this day and that they have been maintained by Malaysian authorities 99 100 101 102 103 104

Ibid., p. 644, para. 35. Ibid., pp. 644–68, paras. 36–92. Ibid., p. 669, para. 93. Ibid., pp. 669–78, paras. 94–125. Ibid., p. 678, para. 126. Ibid., pp. 671–83, paras. 130–41.

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since its independence.105 The Court noted that “the activities relied upon by Malaysia . . . are modest in number but . . . they are diverse in character and include legislative, administrative and quasi-judicial acts. They cover a considerable period of time and show a pattern revealing an intention to exercise State functions in respect of the two islands in the context of the administration of a wider range of islands.”106 The Court further stated, “at the time when these activities were carried out, neither Indonesia nor its predecessor, the Netherlands, ever expressed its disagreement or protest.”107 On 17 December 2002, the ICJ in its Judgment concluded “Malaysia has title to Ligitan and Sipadan on the basis of eﬀectivités.”108 So the ﬁrst question concerning the dispute over the sovereignty of the Spratlys is whether there have been valid treaties to decide the sovereignty of the Spratly Islands. If there are no valid treaties, the next question is whether eﬀective control has been established to determine who has stronger legal basis to claim the Spratlys. 6.3.2

Treaties Related to the Case of the Spratly Islands Disputes

On 26 June 1887, China and France signed a convention that included the territory division line between China and Vietnam that was then a French Protectorate.109 The convention provided that “the French laid claim to territory west of the 105°43’ east of Paris, therefore ceding territory east of this line to China.”110 In 1933 when the French foreign Ministry announced that it had occupied some of the Spratly Islands, China protested against the French action and invoked the 1887 Sino-French Convention. China interpreted that the convention covered the Spratly Islands which were far east of the line and therefore it was China’s territory.111 France responded that the Treaty only applied to the Mancay area in northern Vietnam.112 Ironically, in the 1980s, when Vietnam issued a statement on 12 November 1987 claiming that the 1887 Sino-French Convention also set the maritime boundary line between Vietnam and China, the PRC immediately protested about the Vietnamese statement, denying that boundary delimitation was set in the 1887 Convention

105 106 107 108 109

110 111 112

Ibid., pp. 683–5, paras. 142–6. Ibid., p. 685, para. 148. Ibid. Ibid., pp. 685–6, para. 149. The convention is called Convention Additionelle de Commerce et Convention Relative à la dèlimitation de la frontière entre la Chine et le Tonkin (Additional Commercial Convention and Convention Relative to the Delimitation of the Tonkinese Frontier Between China and France. Hereafter referred to the 1887 Sino-French Convention. See Art. 3 of the Convention, 26 June 1887, P.R.C.-Fr., 169 C.T.S., p. 341. R. D. Beller, op. cit. (1994), p. 306. Ibid.

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between China and France.113 Later, during the negotiations between China and Vietnam to resolve the maritime boundary dispute in the Gulf of Tonkin (the Beibu Gulf in Chinese) in the 1990s, at the beginning the two parties were far apart in the issue of validity of the 1887 Convention in the maritime delimitation. On 25 December 2000, China and Vietnam ﬁnally agreed that the 1887 Convention did not set the maritime boundary between China and Vietnam and oﬃcially signed an Agreement on Fishery Cooperation in the Gulf of Tonkin (the Beibu Gulf in Chinese, and the Bac Bo Gulf in Vietnamese) together with the Agreement on Maritime Boundary Delimitation in the Gulf of Tonkin.114 Thus, a conclusion can be drawn that the 1887 Convention did not cover the Spratly Islands. The other treaties claimed to be related to the Spratlys dispute include the 1943 Cairo Declaration, the 1945 Potsdam Proclamation, the 1951 Treaty of Peace with Japan and the 1952 Treaty of Peace between the Republic of China and Japan. As far as these treaties are concerned, the key issue is to decide whether the Spratly Islands fall into the Chinese territory Japan had seized from China according to the Cairo Declaration and the 1945 Potsdam Proclamation. At this point, China has the burden of proof if it depends on the above two declarations to claim the Spratly Islands. Although the Treaty of Peace with Japan and the Treaty of Peace between the ROC and Japan provided that Japan renounced the Spratly Islands, the treaties themselves contained no words mentioning to whom Japan renounced the Spratly Islands. In addition, the two treaties can only be used as evidence instead of valid treaties because the PRC refused to accept them. Does the statement that Japan renounced the Spratly Islands in the Treaty of Peace between the ROC and Japan suﬃce to support the claim that Japan renounced them to China? It needs further evidence to support it. It seems that the 15th map of Southeast Asia of the Standard World Atlas, recommended by the then Japanese Foreign Minister, Cats Okazaki, and just issued in the same year of signing the Treaty, is a quite convincing evidence to support the explanation that the Spratly Islands fall into the Chinese territory seized by Japan and later renounced to China because the map clearly marks the Spratly Islands as the Chinese territory. Obviously, the settlement of the disputes over the sovereignty of the Spratly Islands concerns the interpretation of the treaties. Individual interpretation is tantamount to argument and is very unlikely to reach a consensus. Thus, an authoritative interpretation of the treaties, such as the ICJ’s, would be more persuasive and decisive.

113

114

J. R. Coquia. ‘Maritime Boundary Problems in the South China Sea’ 24 U. Brit. Colum. L. Rev. (1990), pp. 121–2. See the speech made by Xiao Jianguo, an oﬃcial from the Legal Section of Foreign Ministry of the PRC, on 28 July 2004, at [18 Mar. 2008].

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6.3.3

Eﬀectivités

Before addressing the issue of eﬀective control, the prerequisite is to decide what time is the critical date before which the parties were able to show the consolidation of their title or their fulﬁlment of the requirement of the doctrine of occupation.115 In the Indonesia v. Malaysia case, the Court considered the year of 1969 as the critical time because that is the year in which the Parties negotiated the delimitation of the respective continental shelves of the two States and an agreement was reached. Although the Parties did not cover the area lying to the east of Borneo in the agreement, they asserted conﬂicting claims to Ligitan and Sipadan.116 The Court further observed that it could not take into consideration acts having taken place after the date on which the dispute between the Parties crystallized unless such acts are a normal continuation of prior acts and are not undertaken for the purpose of improving the legal position of the Party which relies on them.117 On 25 December 2000, China and Vietnam agreed that the 1887 Convention did not set the maritime boundary between China and Vietnam and signed an agreement on maritime boundary delimitation in the Gulf of Tonkin. Although China and Vietnam did not cover the Spratly Islands in their agreement, in the context of discussions concerning the delimitation in the Gulf of Tonkin, the dispute over the Spratly Islands crystallized. Thus, the critical time in the case of the dispute over the sovereignty of the Spratly Islands should be the year of 2000, and the acts undertaken by any Party after 2000 for the purpose of improving its legal position should not be taken into consideration. For example, Vietnam’s building of a small airport on the disputed island of Big Spratly with the purpose of sending small groups of Vietnam tourists to the South China Sea in May 2004 should be completely ignored. In the Indonesia v. Malaysia case, the Court reconﬁrmed the statement by the Permanent Court of International Justice in the Legal Status of Eastern Greenland (Denmark v. Norway) case about the basic elements in an eﬀective control. The statement contains that if claims to sovereignty are not based upon some particular act or title such as a treaty of cession but merely upon continued display of authority, two elements are involved: the intention and will to act as sovereign, and some actual exercise or display of such authority.118 In the Indonesia v. Malaysia case, the Court evaluated that maps in general constitute extrinsic evidence and may be used to establish or reconstitute the real

115 116 117 118

L. F. E. Goldie. ‘The Critical Date’ 12 ICLQ (1963), p. 1251. ICJ Reports 2002, p. 642, para. 31. Ibid., p. 682, para. 135. Legal Status of Eastern Greenland (Denmark v. Norway), at [18 Mar. 2008].

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facts along with other evidence of a circumstantial kind.119 A similar evaluation was in the Eritrea/Yemen Arbitration Case. With respect to the plethora of maps, the Tribunal was of the opinion that the maps suggested a certain widespread understanding that the islands appertained to Yemen.120 The maps displaying the Spratly Islands as the Chinese territory, along with the declarations by the diﬀerent Chinese governments, at least suﬃce to show China’s willingness to control the Spratly Islands. The question is whether it has displayed its authority over the islands in some other eﬀective ways. Chinese historical books, records mentioning the Spratly Islands and China’s early naval patrols in the Spratly Islands, such as Zheng He’s voyages between 1405 and 1433 through the South China Sea, seem quite weak in displaying its eﬀective control. The ICJ observed in the Indonesia v. Malaysia case that it could only consider those acts as constituting a relevant display of authority which leave no doubt as to their speciﬁc reference to the islands in dispute as such.121 The Court further stated: Regulations or administrative acts of a general nature could therefore be taken as eﬀectivités with regard to Ligitan and Sipadan only if it was clear from their terms or their eﬀects that they pertained to these two islands.122

It is a big question whether the Chinese historical books and records and the early naval patrols undoubtedly constitute a relevant display of authority in the Spratly Islands. The Chinese ﬁshermen’s use of the islands hardly strengthens China’s display of authority, either. In the Indonesia v. Malaysia case, when Indonesia stated that the waters around Ligitan and Sipadan had traditionally been used by Indonesian ﬁshermen, the Court observed that activities by private persons could not be seen as eﬀectivités if they did not take place on the basis of oﬃcial regulations or under governmental authority.123 Thus, China has a huge burden to prove that the acts of its ﬁshermen were not merely private acts. The Court in the Indonesia v. Malaysia case accepted the statement by the Permanent Court in the Legal Status of Eastern Greenland case that if claims are made to sovereignty over areas in thinly populated area or unsettled countries, the tribunal 119

120

121 122 123

ICJ Reports 2002, p. 667, para. 88. See also the case of Frontier Dispute (Burkina Faso/Republic of Mali), ICJ Reports 1986, p. 582, para. 54; the case of Kasikili/Sedudu Island (Botswana/Namibia), ICJ Reports 1999 (II), p. 1098, para. 84. 1998 Award, para. 490. See Eritrea/Yemen Awards at [18 Mar. 2008]. B. Kwiatkowska. ‘The Eritrea/Yemen Arbitration: Landmark Progress in the Acquisition of Territorial Sovereignty and Equitable Maritime Boundary Delimitation’ 32 Ocean Dev. & Int’l L. (2001), p. 18. ICJ Reports 2002, pp. 682–3, para. 136. Ibid. Ibid., p. 685, para. 147.

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would be satisﬁed with very little in the way of the actual exercise of sovereign rights, provided that the other State could not make out a superior claim.124 In the case of the Spratly Islands, most of the disputed islands possess the same characteristics as the Ligitan and Sipadan, very small, uninhabited or not permanently inhabited at least until recently. Therefore, the following acts deﬁnitely showed China’s display of its authority over the Islands: (1) In 1946, the ROC sent to and garrisoned its troops on the Islands; (2) In 1955, the ROC was requested by the ICAO to establish meteorological observations throughout the Spratly Islands; (3) In 1956, the ROC re-sent its troops to the Islands and continued to retain troops on the Taiping Island (Itu Aba Island); (4) In 1958, the PRC, as successor of the ROC, promulgated a degree in the name of the Declaration of Territorial Sea of the PRC; (5) In 1988, the PRC sent its troops to some of the Islands and built a ferry and a helicopter airport there. It also built a Maritime Observation Station on one of the Islands based on the UNESCO plan and support.125 (6) In 1992, the PRC passed the Law of the PRC on the Territorial Sea and Contiguous Zone, which includes the Spratly Islands as China’s territory. The maps issued by other states also support China’s authority over the Spratly Islands.126 In addition, Vietnam oﬃcially admitted that both the Paracels and Spratlys were without dispute China’s territory. So the Chinese claims become stronger on the basis of estoppel. The ICJ made a statement in the Temple case expressly recognizing estoppel as a means of restricting a state from altering its position or denying the truth of a prior statement.127 Although Vietnam may argue that its declarations recognizing the Spratlys as China’s territory are not binding on it because they arose from vitiated consent, it is very diﬃcult for Vietnam to prove such a vitiated consent.128 The Vietnamese claim becomes quite weak on the basis of its ﬁrst discovery of the Spratlys while confronted with a huge historical records provided by China. Actually, the historical records that Vietnam has given as evidence of its ﬁrst

124 125

126

127 128

Ibid., p. 682, para. 134. L. Zhao. ‘Guanyu nanhai zhudao de ruogan falü wenti (Some Legal Problems Related to the Islands in South China Sea)’ (4) Legal System and Social Development (1995), at [18 Mar. 2008]. The maps recognizing the Spratly Islands as China’s territory are listed in the resources of Ministry of Foreign Aﬀairs of the PRC, at [18 Mar. 2008]. Temple of Preah Vihear (Cambodia v. Thailand), ICJ Reports 1962, p. 6. H. H. L. R. Jr., op. cit. (1997), pp. 204–5.

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discovery only mentioned some small islands along its coast, which are not the Spratlys at all.129 The Philippines’ claim of its discovery of the Spratlys is also very weak when we consider that the time of its ﬁrst discovery was declared as late as the 1950’s. Many evidences revealed make it unreasonable for the Spratlys to remain as terra nullius up to the 1950’s. The Philippines, Malaysia and Brunei hardly establish their sovereignty over some islands and features in the Spratly Islands based on proximity and the 1982 UNCLOS. The Palmas court rejected the proximity argument with the following rule: “Nor is this principle of contiguity admissible as a legal method of deciding questions of territorial sovereignty; for it is wholly lacking in precision and would in its application lead to arbitrary results.”130 And the Court concluded “contiguity . . . has no foundation in international law.”131 The 1982 UNCLOS is a treaty about sovereignty over sea, not over land.132 Article 76 and 77 of the 1982 UNCLOS invoked by the States concerned just describe what constitutes the continental shelf of a state and the sovereign rights of a state for the purpose of exploring and exploiting the resources of its continental shelf.133 The 1982 UNCLOS neither stipulates nor invites the interpretation that a state possessing a continental shelf also possesses sovereign rights over land formations arising seaward from that shelf.134 The application of the 1982 UNCLOS is premised on the assumption that a particular State has undisputed title over the territory from which the maritime zone is claimed. It would be beyond the substantive scope of the Convention to determine the status of land territory.135 Sir Robert Jennings deﬁned occupation as “the appropriation by a State of a territory which is not at the time subject to the sovereignty of any State.”136 Under international law, the question about the sovereignty of the Spratlys favours the

129 130 131 132

133

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J. Shen, op. cit. (1997–1998), pp. 57–8. The Island of Palmas (U.S. v. Neth.), Perm. Ct. Arb. 1928, reprinted in 22 AJIL, p. 839. Ibid., p. 910. T. Kh and R. Beckman. ‘Law of the Sea Convention: Implications for Singapore’ Straits Times (12 Nov. 1994), p. 34. B. K. Murphy. ‘Dangerous Ground: The Spratly Islands and International Law’ 1 Ocean & Coastal L. J. (1994–1995), p. 199. C. C. Joyner. ‘The Spratly Islands Dispute in the South China Sea: Problems, Policies, and Prospects for Diplomatic Accommodation’ in R. Singh (ed.) Investigating Conﬁdence-Building Measures in the Asia-Paciﬁc Region (1999), p. 63. The article is also available at [19 Mar. 2008]. R. W. Smith and B. Thomas. ‘Island Dispute and the Law of the Sea: An Examination of Sovereignty and Delimitation of Disputes’ in M. H. Norquist and J. N. Moroe (eds.) Security Flashpoints: Oil, Islands, Sea Access and Military Confrontation (M. Nijhoﬀ Publishers, The Hague 1998), p. 69. S. R. Jennings. op. cit. (1962).

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Chinese claims and China may rely on discovery, occupation and estoppel to win its title to the Spratly Islands.

6.4

A New Framework for Settlement

The Spratly Islands have caused territorial disputes as well as maritime delimitation disputes. In the Hanish Islands arbitration between Eritrea and Yemen, the tribunal followed two-stage approach: resolving the sovereignty issue in a ﬁrst stage, and the maritime boundaries in a second stage.137 Although the two issues may be taken together in a single phase on the merits, as was the case in Qatar v. Bahrain (sovereignty over Hawar Islands) and Cameroon v. Nigeria (title to Bakassi peninsula) in the ICJ, if the parties wished to proceed in that way, this kind of desire among the disputing parties involved in the Spratly disputes is very doubtful. Thus, this chapter exclusively focuses on settlement of the complicated territorial disputes in this area. The resolution of the Spratlys sovereignty disputes is envisioned as a real Gordian knot in consideration of their complexity. There are as many as six parties involved in the disputes: Mainland China, Taiwan, Vietnam, the Philippines, Malaysia and Brunei. Some claim all of the Islands, like Mainland China, Taiwan and Vietnam. Some claim some parts of the Islands, like the Philippines, Malaysia and Brunei. Meanwhile, the concurrent cession dispute between Mainland China and Taiwan hinders China from putting together a single, combined Chinese delegation to crystallize its position on the Spratlys. The Taiwan issue has in eﬀect inclined the PRC to use diplomatic negotiations to deal with the disputes over the Spratly Islands.138 The complexity of the disputes over the Spratly Islands has inclined not only the PRC but also the other disputing parties to use negotiations to resolve their disputes. In 1976, to tackle the disputes that may disturb regional peace and harmony, the ASEAN members worked out the Treaty of Amity and Cooperation (the TAC) in which it provides that the members “shall at all times settle . . . disputes among themselves through friendly negotiations.”139 And the Treaty emphasizes that “ . . . parties to a dispute should be encouraged to take initiatives to solve it by friendly

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B. Kwiatkowska. ‘The Eritrea/Yemen Arbitration: Landmark Progress in the Acquisition of Territorial Sovereignty and Equitable Maritime Boundary Delimitation’ 32 Ocean Dev. & Int’l L. (2001), pp. 1–25. B. K. Murphy, op. cit. (1994–1995), p. 210. Art. 13 of the TAC provides, “In case disputes on matters directly aﬀecting them should arise, especially disputes likely to disturb regional peace and harmony, they shall refrain from the threat or use of force and shall at all times settle such disputes among themselves through friendly negotiations.” See the text of the TAC at [19 Mar. 2008].

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negotiations before resorting to the other procedures provided for in the Charter of the United Nations.”140 In July 1992, the ASEAN members signed the Declaration on the Conduct of Parties in the South China Sea declaring that they shall use friendly consultations and negotiations to resolve their territorial disputes.141 In November 2002, the PRC signed a code of conduct in the South China Sea with the ASEAN conﬁrming the principle of friendly negotiations contained in the 1992 Declaration. But this declaration is just political statement short of a legally binding code of conduct.142 So in order to make political promise legally binding on China, the PRC acceded to the TAC on 8 October 2003, which is a binding treaty rather than a political declaration.143 Nevertheless, we must bear in mind that negotiations encouraged by the TAC,144 from the Chinese viewpoint refer to a method to prevent military clash rather than a method to resolve territorial disputes. The Chinese Vice Foreign Minister Wang Yi assessed that the 2002 Declaration would not resolve territorial conﬂicts, but would allow peace to reign and help claimant countries focus on economic development.145 Without the active participation of the PRC, no solution to the Spratlys problem will be permanent on a practical and political level.146 China’s proposal of joint development with sovereignty on the shelf is based on the premise that negotiations are not for resolving the sovereignty disputes of the Spratly Islands. In other words, joint development around the Islands is negotiable, but China’s sovereignty over the Islands is not negotiable. When the Chinese leader Deng Xiaoping ﬁrstly proposed that dispute could be set aside in favour of joint development, his assumption was that China’s sovereignty is indisputable.”147 That is why Mark J. Valencia’s suggestion of allocation of the revenues in the Spratlys based on the division of sovereignty is completely unacceptable to China.148 China actually

140 141 142

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See Art.17 of the TAC. Ibid. See Art. 4 of the Declaration. N. H. Thao. ‘The 2002 Declaration on the Conduct of Parties in the South China Sea: A Note’ 34 Ocean Dev. & Int’l L. (2003), p. 281. See also S. Tonnesson. ‘Sino-Vietnamese Rapprochement and the South China Sea Irritant’ 34 (1) Security Dialogue (2003), pp. 55–6. People’s Daily News, at [19 Mar. 2008]. Art. 17 of the TAC provides, “. . . The High Contracting Parties which are parties to a dispute should be encouraged to take initiatives to solve it by friendly negotiations before resorting to the other procedures provided for in the Charter of the United Nations.” N. H. Thao, op. cit. (2003), p. 279. B. K. Murphy, op. cit. (1994–1995), p. 210. X. Deng. Deng xiaoping lilun yanjiu wenku (Data Basis for Research of Deng Xiaoping’s Theory) Vol. 4 (Publish House of Central School of Chinese Communist Party, Beijing 1997), p. 735. G. Li. ‘Dui jiejue nansha qundao zhuquan zhengyi jige fang’an de jiexi (The Analysis of Some Frameworks of Resolving the Disputes over the Sovereignty of the Spratly Islands)’ 10 (3) China’s Borderland and History and Geography Studies (2000), pp. 82–3. See generally M. J. Valencia,

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intends to advise other disputants to concede sovereignty to China in exchange for an agreement to share the Spratlys’ resources. To avoid being provocative, China deliberately fails to mention sovereignty when it talks about joint development with its Southeast Asian counterparts. Meanwhile, the ASEAN claimants are also unwilling to make some concession in their territorial claims and have no intention to address the problem of sovereign jurisdiction.149 Thus, putting oﬀ the question of sovereignty becomes an acceptable interim measure to the ASEAN claimants, too. This practice increases the possibility of reaching agreements on joint oil exploration and development schemes. For example, an agreement was signed in March 2005 by the state-owned oil companies of China, Vietnam and the Philippines with regard to the conducting of oil pre-exploration surveys in the Spratlys. Philippine President Gloria Arroyo praised at the time that the agreement was a ﬁrst implementation of the provisions of the 2002 Declaration.150 Charles Liu argues that all of the claimants will beneﬁt more by promptly settling the sovereignty dispute and the ideal solution is for the other claimants to concede sovereignty to China in exchange for an agreement to share the Spratlys’ resources.151 This framework is of course very appealing to the PRC because it is in accordance with its policy of joint development. But it is very doubtful for the other claimants to give up their claims to the sovereignty of the Spratly Islands under the current circumstances. It is quite predictable that negotiations will not be able to resolve the sovereignty disputes over the Spratly Islands. Although most commentators agree that resort to either courts or arbitral tribunals to resolve the sovereignty dispute seems highly unpredictable because of complexity,152 resort to an international court or arbitral tribunal, at least in my mind, would be the only possible method to resolve the sovereignty disputes if the disputing parties would want a ﬁnal settlement. If the Taiwan issue could be settled, there would be an increasing possibility of China’s use of the ICJ or an arbitral tribunal to settle the sovereignty disputes over the Spratly Islands. China’s accession to the TAC is an impressive testament to its determination of its “good neighbour” policy as well as its willingness of peaceful settlement of the disputes

149

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J. M. V. Dyke and N. A. Ludwig. Sharing the Resources of the South China Sea (Martinus Nijhoﬀ Publishers, Netherlands 1997). R. Emmers. Maritime Dispute in the South China Sea: Strategic and Diplomatic Status Quo (Institute of Defence and Strategic Studies, Nanyang Technological University, Singapore 2005), p. 14. L. Baguioro. ‘Three Nations Sign Pact for Joint Spratlys Survey’ Straits Times (Singapore 15 Mar. 2005). C. Liu. ‘Chinese Sovereignty and Joint Development: A Pragmatic Solution to the Spratly Islands Dispute’ 18 Loy. L. A. Int’l & Comp. L. J. (1995–1996), pp. 883–92. D. Denoon and S. Brams. ‘Fair Division: A New Approach to the Spratly Islands Controversy’ 2 (2) International Negotiation (1997), p. 316.

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over the Spratly Islands. Before signing the treaty, China was suspected of adopting delay-strategy to accumulate its might for war. Now China places itself under the binding force of the treaty. The TAC not only reiterates the principles of peaceful settlement of disputes and prohibition of the threat or use of force but also provides a framework for settlement of disputes.153 Article 13 stipulates that the Parties shall at all times settle the disputes likely to disturb regional peace and harmony among themselves through friendly negotiations.154 The TAC emphasizes the role of regional agents in settlement of disputes. Article 14 provides: To settle disputes through regional processes, the High Contracting Parties shall constitute, as a continuing body, a High Council comprising a Representative at ministerial level from each of the High Contracting Parties to take cognisance of the existence of disputes or situations likely to disturb regional peace and harmony.

In the event no solution is reached through direct negotiations, as stated in the treaty, the High Council shall have the power to recommend the appropriate means of settlement.155 The High Council can even perform as the third party during the settlement process. Namely, the High Council may oﬀer its good oﬃces, or upon agreement of the parties in dispute, constitute itself into a committee of mediation, inquiry or conciliation.156 However, nothing shall preclude recourse to the modes of peaceful settlement contained in Article 33(l) of the Charter of the United Nations.157 Under the obligation of the TAC, when negotiations fail, the members in dispute generally have to make a choice between the High Council and international courts or tribunals as the third party to help them settle disputes. Regional eﬀorts to resolve sovereignty disputes in the South China Sea have not been successful.158 The practice among the members suggests that the disputants may prefer the ICJ rather than others. In 1998, Indonesia and Malaysia, two members of the TAC, opted for the ICJ to settle their sovereignty dispute over the islands of Pulau Litigan and Pulau Sipadan. In 2003, Malaysia and Singapore also brought their case concerning the sovereignty over the island of Pedra Branca before the ICJ when

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Art. 2 (d) provides: “The Parties shall be guided by the following principles: . . . (d) settlement of diﬀerences or disputes by peaceful means.” Art. 13 provides: “In case disputes on matters directly aﬀecting them should arise, especially disputes likely to disturb regional peace and harmony, they shall refrain from the threat or use of force. . . .” The framework is reﬂected in Chapter IV of Paciﬁc Settlement of Disputes in the TAC. TAC, Art. 13. TAC, Art. 15. TAC, Art. 15. TAC, Art. 17. C. C. Joyner. ‘The Spratly Islands Dispute: Rethinking the Interplay of Law, Diplomacy, and Geo-politics in the South China Sea’ 13 Int’l J. Marine & Coastal L. (1998), p. 211.

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both sides could not reach a settlement agreement by negotiations.159 China might follow suit if it would want to settle the sovereignty disputes. Meanwhile, we must be mindful of the fact that the conventional dispute settlement mechanisms of submission to an arbitral panel, judicial solution, or submission to a regional agency are inadequate to address unconventional disputes as complicated as in the South China Sea.160 Numerous variables related to the sovereignty disputes necessitate a much more complicated settlement framework to be designed. For settlement of the sovereignty disputes over the Spratly Islands, the most delicate issue for the PRC is the status of Taiwan (the ROC). The ROC represented China to establish a physical presence on the Spratly Islands following the Japanese departure after World War II.161 The ROC announced its claim as early as 1947 and Itu Aba, the largest island of the Spratlys, has been under its continuous and peaceful control since 1956. This is an important evidence for supporting China’s legal claim to the islands. Since the PRC began to act as the legal government to represent China, the ROC, which controls Taiwan, became diplomatically isolated in Southeast Asia. Now the Southeast Asian states involved in the Spratlys disputes have no diplomatic relations with Taiwan and deny Taiwan as a state. In other words, from the viewpoint of other claimants, Taiwan has no legal standing in the disputes.162 So it is a reasonable expectation that Taiwan cannot protect its claims to the Spratlys on its own.163 No matter what kind of dispute exists between Beijing and Taipei, it is always the case that they claim the Spratly Islands under the name of China. The Spratly Islands dispute oﬀers a unique opportunity for Beijing and Taipei to work together.164 Hopefully, the PRC and ROC could negotiate to reach an agreement to set up a joint delegation to represent China for their claim. If Taiwan were to refuse to join Mainland China, the PRC would also have the capacity to protect its claims to the Spratlys on its own. The assumed new framework to settle the sovereignty disputes over the Spratly Islands consists of three phases: two diplomatic and one judicial or quasi-judicial. In the ﬁrst phase, China could negotiate with other disputing States either bilaterally or multilaterally about joint development project with sovereignty shelved. They would have to reach some joint development agreements by negotiations. In the expected joint

159

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163 164

‘Towards Healthier S’pore-KL Ties’ Strait Times (Singapore 10 Oct. 2003), at [19 Mar. 2008]. B. K. Murphy, op. cit. (1994–1995), p. 211. Before 1949, the ROC was the legal government exercising sovereign control of China (including Taiwan). C. C. Joyner. ‘The Spratly Islands Dispute: What Role for Normalizing Relations between China and Taiwan’ 32 New Eng. L. Rev. (1997–1998), p. 838. Ibid., p. 851. Ibid., pp. 819–52.

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development agreements, the disputing States could stipulate that settlement of sovereignty would not aﬀect the joint development projects. This kind of practice can be found in several cases. Before the United Kingdom and France took the Minquiers and Ecrehos case165 to the ICJ, they had already resolved the issue of ﬁshing rights around the islands in a separate agreement.166 During Sino-Russian border settlement, the Parties also signed the agreement on joint economic use of several disputed islands of border rivers and of waters around them.167 Actually, in the South China Sea, China and some Eastern Asian states have embarked upon joint development projects. For example, in March 2005, the state-owned oil companies of China, Vietnam and the Philippines signed a tripartite agreement to jointly develop oil and gas resources in the disputed area. Later the same year, China and Vietnam reached another agreement on promoting the joint exploitation in the South China Sea.168 These initiatives are indicative of the political will of the states concerned to develop the disputed area jointly. Obviously, the purpose of signing joint development agreements is to guarantee the disputing parties’ right to beneﬁt from the natural resources in the disputed area. Joint development is the most important form of provisional arrangement. The successful arrangement of economic interests around the Spratlys would help the disputants to build up their conﬁdence in settling their disputes, or at least avoiding conﬂicts. Only with such an arrangement would it be possible for the disputing parties to settle their disputes by either negotiations or a third party. Signing joint development agreements would be the core issue in the new framework construction because such agreements would lay the foundation for the following phases. In the second phase, the disputing parties could agree to use relevant principles and rules elaborated by the ICJ, international tribunals or arbitrations to discuss the issue of sovereignty concerning the Spratly Islands. If they could achieve a settlement by negotiations, that would be great. If not, they could move on to the third phase – signing a special agreement to submit their disputes to a third party for settlement if they would not settle their disputes by negotiations in a reasonable time. Vietnam has expressed a desire to seek international arbitration to resolve the issue of sovereignty should talks fail.169 But such a complicated sovereignty dispute

165 166

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ICJ Reports 1953, p. 47. J. G. Merrills. ‘International Boundary Disputes in Theory and in Practice: Precedents Established’ in J. Dahlitz (ed.) Peaceful Resolution of Major International Disputes (United Nations, New York 1999), p. 99. V. S. Kotliar. ‘The Elements of A ‘Model Negotiation’ for the Settlement of Major Border Disputes between States’ in J. Dahlitz (ed.) Peaceful Resolution of Major International Disputes (United Nations, New York 1999), p. 133. Xin Hua News, at [19 Mar. 2003]. B. Scott, op. cit. (1995), p. 58.

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as the Spratly Islands case would be more suited to the ICJ with regard to its rich experience in dealing with various sovereignty disputes and its general jurisdiction that enables it to deal with any issue and answer any question relating to international law. In addition, the recent cases, such as Indonesia v. Malaysia170 and Malaysia v. Singapore,171 have given the Asian States some conﬁdence in the ICJ.172 In any case, the two cases provide the Asian disputants with very valuable chances to appraise their legal rights and bases concerning the sovereignty of the Spratly Islands. China, Vietnam, Malaysia and Brunei have not deposited the declarations recognizing the compulsory jurisdiction of the ICJ. Although the Philippines have deposited the declaration, it made the reservation that the compulsory jurisdiction shall not applied to its territorial disputes.173 Thus, if they would choose the ICJ for settlement, they would have to sign a special agreement to accept the jurisdiction of the ICJ. If the result of the joint development agreements were satisfactory, the last two phases would be probably unnecessary, because the disputing parties, by then, may feel the disputes of sovereignty would have become much less important and would rather leave the disputes unresolved. As a rule, sovereignty, which is perceived by each claimant as exclusive and sacred, is closely associated with nationalism and any claim related to it is hardly given up. The disputes of sovereignty over the Spratly Islands are intertwined with multiple considerations that have both domestic and foreign policy implications.174 To achieve a peaceful settlement of such complicated disputes or at least, an arrangement for settlement of the disputes, the governments concerned must temper nationalism and cooperate with each other in building up a new dispute settlement framework.

170

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174

The Sovereignty over Pulau Litigan and Pulau Sipadan (Indonesia/Malaysia) Case, ICJ Reports 2002, p. 625. The Sovereignty over Pedra Brancal/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/ Singapore) Case. The ICJ is still deliberating on the case. J. Shi. ‘Asia and International Court of Justice’, a speech by H. E. Judge Shi Jiuyong on 14 April 2004, at [19 Mar. 2008]. See the reservation made by the Philippine government on 18 January 1972, at [20 Mar. 2008]. C. C. Joyner, op. cit. (1999), p. 81.

Chapter 7 The Sino-Indian Border Disputes 7.1

History of Disputes

The Sino-Indian border dispute has remained unresolved for more than 50 years. The ebb and ﬂow of Sino-Indian relations in the past 59 years have never escaped from the shadow of their border conﬂict. Even if the two countries have seen the generally benign atmosphere developing between them, the scar of the 1962 border war has not been completely healed. Without a satisfactory resolution of their boundary disputes, a “full and complete” normalization of bilateral relations will remain elusive. The two Asian giants still look at each other with suspicion and distrust.1 Although eight rounds of border talks and 14 rounds of Joint Working Group meetings have been held, the two parties are harassed by the problems of lack of eﬀective framework for settlement of the disputes as well as insuﬃcient political impetus. India claims the Chinese-controlled Aksai Chin while China claims the Indian-occupied Arunachal Pradesh. The disputed border shared by China and India is generally divided into three artiﬁcial sectors: the Western, the Middle, and the Eastern. The Western Sector, over 1,610 kilometres long, runs from the Karakoram Pass in the extreme west to the Changchenmo valley in the south.2 The area in dispute is more than 38,850 square kilometers, most of which is occupied by China.3 The Middle Sector, approximately 640 kilometres long, starts from the Spiti region in the west to the junction of the Tibet, India, and Nepal border in the east. The disputed area altogether in this sector is less than 500 square kilometers,4 all of which is now under India’s administration. The Eastern Sector, which is called by India the North East Frontier Agency (hereinafter NEFA),5 is about 1,100 kilometers long and it stretches from Bhutan

1

2 3

4 5

J.-D. Yuan. ‘Sino-Indian Relations: Perspectives, Prospects and Challenges Ahead’ Power and Interest News Report (30 Mar. 2005), at [7 June 2007]. B. N. Tzou, op. cit. (1990), p. 60. A. Lamb. The China-India Border: The Origins of the Disputed Boundaries (Oxford University Press, London 1964), p. 7. B. N. Tzou, op. cit. (1990), pp. 60–3. A. Lamb, op. cit. (1964), p. 9.

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in the west to the Chinese-Burmese border in the east. The disputed area covers about 82,900 square kilometers, most of which is under India’s control.6 The border issue between China and India surfaced for the ﬁrst time in 1950, when China reasserted its control over Tibet by force. In December 1950, Prime Minister Nehru gave notice to China that the Himalayas are India’s northern frontier and that an attack on Nepal would be an attack on India.7 On 29 April 1954, Beijing and New Delhi signed the Trade Agreement between the Republic of India and the People’s Republic of China on Trade and Intercourse between Tibet Region of China and India (hereinafter the 1954 Agreement).8 Later, when the leaders of the two countries interpreted the agreement, two diﬀerent versions emerged. The Indian version was that the fact that no border question was raised during the bilateral negotiations suggested no border dispute existing between the two countries.9 The Chinese version was that the border question had not been raised only because “conditions were not yet ripe for its settlement and the Chinese side, in its part, had not had time to study the question.”10 Before the summer of 1956, though there had been some border incidents between China and India, the two countries kept silent about the incidents. In 1956, the Chinese constructed a motor road across the disputed area in Aksai Chin. However, this construction did not receive any protest from India until October 1958.11 In late 1956, the substantive diﬀerences over the border became more notable after the meetings between the Chinese Premier Zhou En-lai and the Indian Prime Minister Nehru in New Dehli.12 In 1958, the parties raised the stakes. In July, New Delhi began to protest openly against the Chinese occupation of Khurnak fort in Ladakh, which lies in the Western Sector.13 Meanwhile, Beijing

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10

11

12

13

B. N. Tzou, op. cit. (1990), p. 63. H. F. Armstrong. ‘Where India Faces China’ 37 Foreign Aﬀ. (1958–1959), p. 617. See the text at [17 Apr. 2008]. ‘Letter from the Prime Minister of India to the Prime Minister of China’, 14 December 1958, White Paper I, p. 48. ‘Government of India: Notes, Memoranda and Letters exchanged and agreements signed between the Governments of India and China’ is referred to White Paper, namely, White Paper I (1954–59), White Paper II (September–November 1959), White Paper III (November 1959–March 1960) and White Paper IV (March 1960–November 1960) (hereinafter cited as White Paper I, II, III and IV ). ‘Letter from the Prime Minister of China to the Prime Minister of India, 23 January 1959’, White Paper I, p. 53. ‘Informal Note given by the Foreign Secretary to the Chinese Ambassador, 18 October 1958’, White Paper I, p. 26. A. A. Stahnke. ‘The Place of International Law in Chinese Strategy and Tactics: The Case of the Sino-Indian Boundary Dispute’ 30 (1) The Journal of Asian Studies (1970), p. 99. P. H. M. Jones. ‘Passes and Impasses: A Study of the Sino-Indian Border Dispute’ (9) Far Eastern Economic Review (28 Feb. 1963), p. 2, at [21 Mar. 2007].

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accused India of altering the status quo in the Wu-je area.14 In mid-December, Prime Minister Nehru wrote to Premier Zhou En-lai and mentioned the border problems that were unsettled.15 On 23 January 1959, Zhou En-lai responded claiming that the Sino-Indian frontier had never been formally delimited and the Chinese Central Government and the Indian Government had never concluded any treaty or agreement deﬁning it.16 Sino-Indian relations deteriorated sharply after the Tibetan revolt in March 1959. On 12 March, Mr. Nehru reiterated the Indian viewpoint that the crest of the high Himalayan range should be regarded as the Sino-Indian border division line based on both tradition and treaties.17 Some more clashes at the border occurred in the summer of 1959. In September the Chinese government issued a point-bypoint rebuttal, which denied the Indian claim and stressed that the Indian claim was actually based on the historical background of British aggression on China when India was under British rule.18 Now the dispute was completely in the open. China openly began to accuse India of its aggression. Just in the same month, the Indian side, as a reply, emphasized its position and rejected the possibility of

14

15

16

17

18

‘Note Verbal handed by the Ministry of External Aﬀairs to the Chinese Counselor in India, 2 July 1958’, White Paper I, p. 22. ‘Note handed by the Chinese Counselor in India to the Ministry of External Aﬀairs, New Delhi, 2 August 1958’, White Paper I, p. 23. ‘Letter from the Prime Minister of India to the Prime Minister of China, 14 December 1958’, White Paper I, pp. 48–51. G. G. H. Lynn. ‘China and India: Towards Great Cooperation and Exchange’ 14 (2) China: An International Journal (Sep. 2006), p. 266. In March 1959, Indian Prime Minister replied to Chinese Prime Minister as the following: “On the basis of your letter I have again examined the basis of the determination of the frontier between India and the Tibet Region of China. It is true that this frontier has not been demarcated on the ground in all sectors, but I am somewhat surprised to know that this frontier was not accepted at any time by the Government of China. The traditional frontier, as you may be aware, follows the geographical principle of watershed on the crest of the high Himalayan range, but apart from this, in most points, it has the sanction of speciﬁc international agreements between the then Governments of India and the Central Government of China.” ‘Letter from the Prime Minister of India to the Prime Minister of China, 22 March 1959’, White Paper I, p. 55. The Chinese premier Zhou En-lai in the letter to the Indian prime minister stated: “The SinoIndian boundary question is a complicated question left over by history. In tackling this question, one cannot but, ﬁrst of all, take into account the historical background of British aggression on China when India was under British rule. From the early days, Britain harboured aggressive ambitions towards China’s Tibet region. It continuously instigated Tibet to separate from China, in an attempt to put under its control a nominally independent Tibet. When this design failed, it applied all sorts of pressures on China, intending to make Tibet a British sphere of inﬂuence while allowing China to maintain so-called suzerainty over Tibet. In the meantime, using India as its base, Britain conducted extensive territorial expansion into China’s Tibet region, and even the Sinkiang region. All this constitutes the fundamental reason for the long term disputes over the non-settlement of the Sino-Indian boundary question.” ‘Letter from the Prime Minister of China to the Prime Minister of India, 8 September 1959’, White Paper II, pp. 27–34.

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general discussions about the future of large areas, which were, from India’s point of view, an integral part of India.19 At this point of time the positions of the two States became much clearer. Later, the most serious border clash took place at the Kongka Pass on 21 October 1959. This incident pushed India to send an oﬃcial letter to China to review India’s basis for claiming the contested territory.20 On 7 November, China suggested that the Prime Ministers of the two countries should hold talks in the immediate future to discuss the clashes.21 Nine days later, the Indian counterpart replied and welcomed the Chinese suggestion although without detail.22 On 17 December, China expressed its willingness to reach a preliminary interim agreement on the lines Nehru had previously suggested and also insisted that the entire boundary between the countries had never been delimited.23 On 26 December, the Ministry of Foreign Aﬀairs of China gave a note to the Embassy of India in China, comprehensively presenting the Chinese position of the boundary question.24 In the note, China reviewed its position and proposed the procedures suitable to the establishment of the boundary and demonstrated its view on the location of the traditional line of demarcation in detail. In addition, the Middle Sector of the boundary was considered for the ﬁrst time.25 In order to avoid larger-scale border conﬂicts and reach common ground, Zhou En-lai paid a visit to New Delhi in April 1960. But the oﬃcials of both governments failed to reduce the basic disagreements between the two nations. The position in the summer of 1961 was in eﬀect an agreement to disagree.26 Since 9 December 1961, when India issued an oﬃcial note, the two countries blamed each other more openly and the clashes on the border grew more frequent and serious.27 India even accused China of claiming Indian territory at Diphu Pass, the westernmost point of the delimitation line agreed in the Sino-Burmese Treaty.28

19

20

21

22

23

24

25 26

27 28

‘Letter from the Prime Minister of India to the Prime Minister of China, 26 September 1959’, White Paper II, pp. 34–53. ‘Note given by the Ministry of External Aﬀairs, New Delhi, to the Embassy of China in India, 4 November 1959’, White Paper II, pp. 19–27. ‘Letter from the Prime Minister of China to the Prime Minister of India, 7 November 1959’, White Paper III, pp. 44–5. ‘Letter from the Prime Minister of India to the Prime Minister of China, 16 November 1959’, White Paper II, pp. 34–53. ‘Letter from the Prime Minister of China to the Prime Minister of India, 17 December 1959’, White Paper III, pp. 51–5. ‘Note given by the Ministry of Foreign Aﬀairs of China to the Embassy of India in China’, White Paper III, pp. 58–79. Ibid. K. H. Pringsheim. ‘China, India, and Their Himalayan Border (1961–1963)’ 3 (10) Asian Survey (1963), p. 474. A. A. Stahnke, op. cit. (1970), p. 115. Ibid., p. 116.

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In December 1961, the Chinese Ministry of Foreign Aﬀairs proposed holding of negotiations preparatory to concluding a new treaty on trade between China and India to replace the original 1954 Agreement, but the Indian Government refused. Each side charged the other with various forms of aggression and no discussions were agreed to and the 1954 treaty expired on 3 June 1962.29 The full-scale war between the two Asian neighbours ﬁnally broke out on 20 October. The War lasted one month until 20 November when the Chinese captured the disputed areas and unilaterally declared a ceaseﬁre. Beginning from 1 December 1962, the Chinese troops unilaterally withdrew to positions 20 kilometers behind the line of actual control which existed between China and India on 7 November 1959. In the Eastern Sector, the actual control line just follows the McMahon Line.30 In the 20-kilometre-wide buﬀer zone behind the actual control, the Chinese side just set up a few checkpoints guarded by police.31 On 8 December 1962, China sent a note signed by Zhou En-lai to India reiterating the three-point ceaseﬁre formula. India accepted it.32 On 10 December 1962, six non-aligned nations – Egypt, Burma, Cambodia, Sri Lanka, Ghana and Indonesia met in Colombo and formulated the proposals stipulating Chinese would withdraw 20km from the traditional customary lines as claimed by China, without any corresponding withdrawal on the Indian side in the west and in the east, the Line of Actual Control recognized by both governments was to be treated as a ceaseﬁre line, while the status quo would be maintained in the Middle sector.33 China refused to accept this proposal. Ever since, the relationship between the two countries went into stalemate.

29 30

31

32

33

Ibid., p. 118. The McMahon Line is a line drawn on map attached to the Simla Convention, a treaty between Great Britain and Tibet concluded in 1914. It is named after Sir Henry McMahon, foreign secretary for India and the chief British negotiator of the convention. The line extends along the crest of the Himalayas for 550 miles from Bhutan in the west to the great bend of the Brahmaputra River in the east. It is approximately the same as the line of control that marks the boundary between territory controlled by India and territory controlled by China. The McMahon Line is regarded by India as a legal national border. China rejects the Simla Convention on the grounds that the Tibetan government was a local government and therefore did not have treaty-making powers. It does not recognize the McMahon Line to be a legal boundary. Z. Wang. ‘60 Niandai Zhongyin Bianjing Chongtu yu Zhongguo Bianfang Budui de Ziwei Fanji Zuozhan (The Sino-Indian Border Conﬂict in the 1960s and the Self Defence War Launched by the Chinese Border Troops)’, p. 23, [27 Sep. 2007]. The three-point ceaseﬁre formula was ﬁrstly proposed by China on 14 October 1962, but Nehru rejected it on 17 October. The ceaseﬁre proposal includes: both parties would respect the Line of Actual Control; the armed forces would withdraw 20 km from this line and; talks between the prime ministers of both countries to seek a friendly settlement. Chronology of India-China Relations (1947–2002) at [5 June 2007]. Ibid.

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In June 1981, Mr. Huang Hua, the Chinese Minister of Foreign Aﬀairs, visited New Delhi and oﬀered China’s “package deal”, which involved settling the dispute along the lines of actual control with minor adjustments in both the eastern and western sectors. However, the Indian government refused the “package deal” for the same reason that had been expressed in the 1963 parliamentary resolution, stating that it would not hold substantive discussions with China until the Chinese vacated every inch of Indian Territory. Then China took the position that the issue be shelved if China’s “package deal” was unacceptable.34 Huang’s visit to India in 1981 was followed by eight rounds of Sino-Indian border talks ranging from December 1981 to November 1987, but nothing was achieved. China’s construction of a military post along the border in 1986 and India’s granting of statehood to Arunachal Pradesh (formerly the North-East Frontier Agency) in February 1987 once raised tensions between the two countries.35 A more genuine warming-up in relations was facilitated by Rajiv Gandhi’s visit to China in December 1988, the ﬁrst visit by an Indian Prime Minister to China since Nehru’s visit in 1954. Although the two sides remain unable to settle their diﬀerences formally, tensions on their disputed border have decreased dramatically, thanks to the conﬁdence building and troop-reduction agreements signed in the 1990s.36

7.2 Conﬂicting Claims 7.2.1

Indian Claims

India claims the disputed areas based on treaties, estoppel, eﬀective control, geography and history. Firstly, the Indian Government asserts that most of the traditional boundaries of India have been settled by international treaties, namely, the Simla Convention of 1914 which delimited the traditional boundary in the Eastern Section, the 1954 Sino-Indian Agreement which established the boundary in the Middle Sector, and the 1684 and 1842 treaties which delimited the Western Sector.37

34

35 36

37

S. Ganguly. ‘The Sino-Indian Border Talks, 1981–1989: A View from New Delhi’ 29 (12) Asian Survey (1989), p. 1126. G. G. H. Lynn, op. cit. (2006), p. 268. S. Mansingh. India-China Relations in the Context of Vajpayee’s 2003 Visit (The Sigur Center Asia Papers The George Washington University, 2005), pp. 1–2, at: [1 June 2007]. S. P. Sharma. ‘The India-China Border Dispute: An Indian Perspective’ 59 AJIL (1965), p. 19.

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The letter sent by the Indian Prime Minister to the Chinese Prime Minister in March 1959 emphasized the treaty basis for the Indian claims. The Indian Prime Minister wrote as the following: On the basis of your letter I have again examined the basis of the determination of the frontier between India and the Tibet Region of China. It is true that this frontier has not been demarcated on the ground in all sectors, but I am somewhat surprised to know that this frontier was not accepted at any time by the Government of China. The traditional frontier, as you may be aware, follows the geographical principle of watershed on the crest of the high Himalayan range, but apart from this, in most points, it has the sanction of speciﬁc international agreements between the then Governments of India and the Central Government of China.38

On the Indian side, they believed that the governments of India, China and Tibet participated in the Simla Conference and as a result, Tibet and India signed the Simla Convention which provided that the boundaries between India and Tibet in the Eastern Sector was delimited by the so-called McMahon Line, which extends along the Himalayan crest from Bhutan in the west to the great bend of the Brahmaputra River in the east.39 It can be inferred that the Indian government believes that Tibet’s plenipotentiary had the right to sign the treaty with India. Surya P. Sharma supports this point by his view that Tibet should be regarded as a state at the time of the Simla Conference because it met the four basic requirements for statehood – people, territory, government and independence.40 He says that Tibet had enjoyed the freedom to make agreements with other peoples for many decades and it enjoyed its relative independence, freedom to conduct foreign relations then. Even China itself recognized Tibet as a state.41 He further argues that contemporary international law does not exclude the possibility that a community may have competence to make agreements, even if it does not possess all ingredients of statehood and therefore, the fact that Great Britain acknowledged China’s suzerainty over Tibet should not decisively aﬀect the competence of Tibet in 1914 to conclude the Simla Agreement.42 India claims that in the Middle Sector, the 1954 Agreement speciﬁed the six border passes as passages for traders and pilgrims of both countries, so this speciﬁcation in the agreement indicates that the Chinese Government has already agreed to Indian Government’s opinion that there is no boundary question in this section.43

38

39 40 41 42 43

‘Letter from the Prime Minister of India to the Prime Minister of China’, 22 March 1959, White Paper I, p. 55. S. P. Sharma, op. cit. (1965), p. 20. Ibid., pp. 20–2. Ibid. Ibid. Article 4 of the 1954 Sino-Indian Agreement mentions the six passes, namely, Shipki La Pass, Mana Pass, Niti Pass, Kungri Bingri Pass, Darma Pass, and Lipu Lekh Pass. P. H. M. Jones. ‘Passes

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The Indian claim to the disputed area in the Western Sector is also based on a peace treaty concluded in September 1842 between Tibet and the Raja of Jammu (and later of Kashmir) who had invaded Western Tibet after annexing Ladakh.44 Mr. Nehru interpreted that the 1842 treaty was a valid because representatives of both the Dalai Lama and the Emperor of China had signed it and the “Khagan of China” was named in the Tibetan version of the treaty as a party to it. He believed that the ‘old established frontiers’ provided in the treaty were well known and just conformed to the frontiers claimed by India.45 India also based its claim on the 1684 Ladakh-Tibet Treaty.46 Secondly, India argued that the provision of “mutual respect” of each other’s territory in the 1954 agreement signed by China had the legal implication that China had accepted the border claimed by India, so that China was “estopped” from raising the boundary question. In other words, India believed that China’s silence meant acquiescence.47 India even supported this view by referring to Premier Zhou’s speech about the border delimitation between China and Burma. In the speech, Zhou accepted the McMahon Line as the border line between China and Burma.48 India explained that Zhou’s speech should be regarded as an oral agreement, in which China had given its recognition of the McMahon Line as the established border line between China and the countries concerned, namely, India and Burma.49 This oral agreement is binding upon China.50 In addition, maps published in India both before and after the Simla Conference, which shows the whole northern boundary of India in the same location as that claimed by India, met no objection from China for over 45 years.51 Therefore, this recognition estops China from refusing the McMahon Line as the Sino-Indian border in the eastern section.

44 45 46

47

48

49 50 51

and Impasses: A Study of the Sino-Indian Border Dispute’ (9) Far Eastern Economic Review (28 Feb. 1963), p. 12, at [21 Mar. 2008]. Ibid., p. 10. S. P. Sharma, op. cit. (1965), pp. 27–29. In fact, no text of this agreement between Tibet and Ladakh survives. See A. Lamb. ‘Treaties, Maps and the Western Sector of the Sino-Indian Boundary Disputes’ Aust. YBIL (1965), p. 37. India, Ministry of External Aﬀairs, Report of the Oﬃcials of the Government of India and the People’s Republic of China on the Boundary Question, New Delhi, 1961, p. 31 of the Chinese statement. See also A. A. Stahnke, op. cit. (1970), p. 111. Zhou said that although he thought that this line (McMahon Line), established by British Imperialists, was not fair, nevertheless, because it was an accomplished fact and because of the friendly relations which existed between China and the countries concerned, the Chinese Government were of the opinion that they should give recognition to this McMahon Line. White Paper I, pp. 49–50. S. P. Sharma, op. cit. (1965), pp. 24–5. Ibid. Ibid., pp. 37–8.

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Thirdly, India claims that it has enjoyed the eﬀective control of the disputed territory for centuries.52 Its control is reﬂected from the revenue and tax records, which was listed in White Paper II and White Paper III.53 India referred to eﬀective control to support its territorial claims in the eastern and middle sections. In the eastern section, India described how the rulers of Assam never lost sovereignty of the northern territory to the crest of the Himalayas and Assam was annexed by the British in 1838 and British-India succeeded the control. Shortly after India independence in 1947, the Indian government put the disputed areas in the NEFA under its direct administrative control.54 In the middle section, India bases its claim on Sikkim’s control of the disputed border. The people of Sikkim have inhabited and exercised jurisdiction to the border now claimed by India. In 1886, Sikkim authority even ousted the Tibetans who trespassed across the eastern boundary of Sikkim with Tibet.55 Now, Sikkim has become one state of India and its jurisdiction to the border has naturally passed on to India. Fourthly, the Indian claim is also based on the geographical features of the boundary areas. From the Indian viewpoint, the Himalayas ranges in the Eastern and Middle sectors and the Karakoram and Kulun mountain ranges in the Western Sector are the outstanding physical features on the Sino-Indian border.56 Thus, the ‘watershed principle should be applied to the boundary alignment and in fact, the mountain ranges have formed the traditional boundaries between the two countries.57 The exchange of correspondence between the Government of India and China, and the discussions of the oﬃcials in 1960 made an unequivocal revelation of the basis upon which India made its claims. The Indian side demonstrated that the boundary shown by India was the natural dividing line between the two countries and the high and insurmountable mountain barriers logically served as the dividing line. The water shed principle was declared by India as a well-recognized principle of customary international law. In this theory, if two countries are separated by a mountain range and there are no boundary treaties or speciﬁc agreement, the traditional boundary tends to take shape along the crest that divides the major volume of the waters ﬂowing into the two countries.58 Fifthly, in the Western Sector, India tried to prove its claim upon history. In the Western Sector, nearly two-thirds of the boundary of Jammu and Kashmir with Xinjiang and Tibet lies in the Ladakh district of Jammu and Kashmir.59 Before

52 53 54 55 56

57 58 59

Ibid., pp. 30–1. White Paper II, pp. 19–24, 36–46, 125–132; White Paper III, pp. 85–98. S. P. Sharma, op. cit. (1965), pp. 31–2. Ibid., p. 33. See W. Kirk. The Inner Asian Frontier of India, Transactions and Papers No. 31 (Institute of British Geographers, Dec. 1962), pp. 153–60; White Paper II, pp. 128–30. Ibid. Report of the Oﬃcials, pp. 235–6. P. T. Merani. ‘The India-China Border Dispute’ 13 J. Pub. L. (1964), p. 167.

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1586, Ladakh, although it had religious and commercial ties with Tibet, was an independent nation. In 1664, Ladakh became a vassal of the Moghul Empire. The three years of war between Tibet and Ladakh resulted in a treaty of peace signed by Tibet and Ladakh in 1684. The treaty conﬁrmed the traditional Ladakh-Tibet boundary.60 The 1842 treaty signed by Tibet and Kashmir as well as by China conﬁrmed that Ladakh was still controlled by the Kashmir Government then.61 In 1846, Kashmir came under the suzerainty of the British, so the entire LadakhKashmire sector was under British-Indian central authority.62 India said that the exercise of jurisdiction by the governments of Kashmir and India in the Ladakh has continued uninterrupted right up to contemporary times. In 1947, India assumed the rights of sovereignty over the entire area upon its independence.63 7.2.2

Chinese Claims

China bases its claim of the sovereignty over the disputed area upon eﬀective control, history and geography. In order to uphold its justiﬁcation of eﬀective control, China, at ﬁrst, categorically denies that there are valid boundary treaties or agreements between India and China.64 China examined the Simla Convention and argued that the Chinese Government of 1913–1914 was not a signatory to the Simla Convention, and in any case did not ratify it and the McMahon Line claimed by India was illegal. In 1959, the Chinese Premier Zhou En-lai gave the following argument: . . . The so-called McMahon Line was a product of the British policy of aggression against the Tibet Region of China and has never been recognized by any Chinese Central Government and is therefore decidedly illegal. . . .65

As far as the 1842 treaty signed between Tibet and Kashmir is concerned, China remarked that the treaty did not solve the boundary problem in the Western Sector based on two reasons. Firstly, the treaty was not valid because the central government of China had not concurred and Tibet had no such a treaty-making power. Secondly, even if the treaty was valid, the treaty was not relevant to the boundary solution because the treaty just in general terms provided that each side would abide by its borders and had no speciﬁc provisions or descriptions with regard to

60 61 62 63 64 65

Ibid., pp. 167–8. Ibid., 1964, p. 168. S. P. Sharma, op. cit. (1965), p. 34. Ibid., p. 34. White Paper IV, p. 11. ‘Letter from the Prime Minister of China to the Prime Minister of India, 8 September 1959’, White Paper II, pp. 27–34.

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the exact location of this section of the boundary and even the British in 1899 did not consider that the boundary had been established by the 1842 treaty.66 Conclusively, the Chinese Government asserted, “according to internationally accepted principles, an international boundary signiﬁes a demarcation line up to which neighbouring States exercise their sovereignty over their respective territories, and must be jointly deﬁned by the States concerned.”67 So the Sino-Indian boundary itself has never been formally delimited.68 The Chinese Government believes that there are only traditional boundaries between India and China.69 These traditional boundaries actually conform to the Chinese claims. Within the traditional boundaries, China had established its sovereignty by eﬀective control before Indian invasion.70 China had set up administrative organs, collected taxes, exercised judicial power, and suppressed revolts as well as provided frontier defence in these areas.71 Speciﬁcally, the Chinese claim that the disputed territory in the Western Sector “had always belonged to China” is based on the Chinese eﬀective control of the area.72 The Chinese government stated “except for the very small area of Parigas which has been occupied by India in recent years the remaining broad area has always been under the eﬀective control of the Chinese government.”73 This conclusion was made based on Chinese oﬃcial documents and records. The major part of this area is under the jurisdiction of Hetian County of the Xinjiang Uigur Autonomous Region of China, while the minor part under that of Rudok Dzong of the Tibetan Autonomous Region of China. Aksai Chin is just part of Hetian (also spelled as Hotien) County of Xinjiang.74 The Chinese statement showed that since the middle of the eighteenth century, there have been Chinese troops constantly guarding this area because of the strategic importance of the area in traﬃc linking Xinjiang (also spelled as Sinkiang) and western Tibet. The Government of the Qing Dynasty of China established check posts to exercise jurisdiction over and patrol in this area. The Republic of

66

67 68 69 70

71

72

73 74

‘Letter from the Prime Minister of China to the Prime Minister of India, 8 September 1959’, White Paper II, pp. 27–34. White Paper IV, p. 9. White Paper II, pp. 52, 57. P. T. Merani. ‘The India-China Border Dispute’ 13 J. Pub. L. (1964), p. 166. ‘Note given by the Ministry of Foreign Aﬀairs of China to the Embassy of India in China, 26 December 1959’, White Paper III, pp. 64–79. Report of the Oﬃcials of the Government of India and the People’s Republic of China on the Boundary Question, Ministry of External Aﬀairs of India, New Delhi, 1961, pp. 91–103. ‘Note given by the Ministry of Foreign Aﬀairs of China to the Embassy of India in China, 26 December 1959’, White Paper III, p. 64. Ibid., p. 64. Ibid., pp. 64–5.

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China stationed troops constantly guarding this area before it retreated to Taiwan. Since its founding, the PRC continued to send its troops to guard and patrol in this area. From March 1956 to October 1957, the Chinese Government even built along the customary route a motor-road from Xinjiang to Tibet through this area.75 According to data available to the Chinese Government, armed Indian personnel intruded only three times into this area in September 1958, July 1959 and October 1959, and on each occasion they were promptly detained and then sent out of China by Chinese frontier guards. Apart from these three intrusions, Indian troops have never been to this area.76 Concerning the Middle Sector, China said that except Sang and Tsungsha that were invaded and occupied by Britain earlier, they were all occupied or intruded into by India only after the signing of the 1954 Sino-Indian Agreement. In other words, before India’s invasion, they were all under China’s authority. The local authorities of the Tibet region issued the land-conferring documents as well as collected taxes in these places. The census record and taxation papers of some of these places have been well preserved.77 The principle of watershed put forward by the Indian Government does not conform to the jurisdiction actually exercised by each side. The maps published by both India and China show that it is China, not India, which has abided by the traditional customary line.78 From China’s point of view, the Eastern Sector, namely, the area between the so-called McMahon Line and the boundary line at the southern foot of the Himalayas, had been under Chinese jurisdiction until the 1950s. As early as the middle of the seventeenth century, the local government of the Tibet region of China had begun to exercise jurisdiction over this area. They appointed the oﬃcials of the administrative organs at various levels, collected taxes and exercised judicial authority in all parts of the area.79 China also made its claim to the disputed area based on history and geography. They argued that the Uyghur and Kirghis people had historically used the area in the Western Sector for pasturage and salt-mining and many places there are named in the Uyghur language, for example, Aksai Chin, which is part of Hetian County of Xinjiang, means “the desert of white stones” in the Uighur language.80 China also cited the geographical location of the area to uphold its claim. It stated as follows:

75 76 77 78 79 80

Ibid., pp. 64–5. Ibid., p. 66. Ibid., p. 68. Ibid., p. 69. Ibid., p. 70. Ibid., p. 64.

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This area is the only traﬃc artery linking Xinjiang and western Tibet, because to its northeast lies the great Gobi of Xinjiang through which direct traﬃc with Tibet is practically impossible. Therefore, since the middle of the eighteenth century, the Government of the Qin Dynasty of China had established Karens (check-posts) to exercise jurisdiction over and patrol this area. In the decades from the founding of the Republic of China till the liberation of China, there were troops constantly guarding this area.81

China gave the example of the mandate issued in the name of the 7th Dalai Lama in the 18th century stating speciﬁcally that Wuje (one place in Middle Sector) was within the territorial limits of Daba Dzong of Tibet to support its claim to the Middle Sector.82 Concerning the Eastern Section, in its claim, China presented the history of the jurisdiction of the local government of the Tibet region of China over the area.83 China also claimed to the Western Section according to the local geographical features, described as the following: . . . the traditional customary line as shown on Chinese maps truly reﬂects the geographical features of this area, that is, having no steep slopes in the north-south direction, the area is easily passable and, therefore, naturally forms the only route linking Xinjiang and western Tibet.84

7.3

Appraisal

Between December 1958 and November 1960, China and India exchanged diplomatic notes, memoranda and letters to express their views on their border issues. By November 1960, their conﬂicting claims had been fully expressed and the dispute between them had become fully crystallized, so the critical time should be November 1960. From the above review, it is apparent that the legal justiﬁcations presented by China are eﬀective control, history and geography while the ones by India are treaties, estoppel, eﬀective control, geography and history. The practice of the ICJ and States seems to indicate the following pattern as the general one to settle a border dispute: 1) If there is a valid boundary treaty, the border shall be delimited according to what the valid treaty provides; 2) If there is no valid treaty or the valid treaty fails a precise border delimitation, the principle of eﬀective control shall take their role; 3) If there is neither a valid boundary treaty nor a proof of eﬀective control, the distinct geographical features such as watershed, middle line and

81 82

83 84

Ibid., p. 54. ‘Note given by the Ministry of Foreign Aﬀairs of China to the Embassy of India in China, 26 December 1959’, White Paper III, p. 68. Ibid., p. 70. Ibid., pp. 67–8.

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thalweg shall be relied on. The 2002 ICJ case of Frontier Dispute (Benin/Niger)85 well exempliﬁes this pattern. 7.3.1

The Situation in the Light of Frontier Dispute (Benin/Niger) Case

On 8 April 1994 Benin and Niger entered into an agreement creating a joint commission for the delimitation of their common border. Since eﬀorts to arrive at a negotiated solution to the dispute were unsuccessful, the commission proposed that the governments of the two States bring the dispute before the International Court of Justice by Special Agreement.86 On 3 May 2002, by a joint letter of notiﬁcation dated 11 April 2002, Benin and Niger transmitted to the Registrar a Special Agreement whereby the Governments of the two States agreed to submit to a Chamber of the Court a dispute concerning “the deﬁnitive delimitation of the whole boundary between them”.87 The Special Agreement divides the disputed boundary into two sectors, the River Mekrou sector in the west and the River Niger sector in the east. The frontier dispute between the Parties is set within a historical context marked by the accession to independence of the territories that were formerly part of French West Africa (“Afrique occidentale française”, hereinafter “AOF”).88 The two parties made an agreement that the French colonial law would be applicable. Because of both parties being former French colonies, the relevance to their case of international agreements concluded in the colonial era was rather reduced, while the applicable law and administrative practice of the common colonial authorities assumed a dispositive role.89 The Chamber ﬁrstly observes that the Parties agree that the course of their common boundary should be determined, in accordance with the uti possidetis juris principle, by reference to the physical situation to which French colonial law was applied, as that situation existed at the dates of independence. That means that it must seek to determine the boundary that was inherited from the French administration on the basis of the principle of uti possidetis juris.90 In the Chamber’s opinion, it is necessary to examine ﬁrst the legal titles relied on by the Parties to determine the course of the international boundary at the critical date and any eﬀectivités shall be considered only on a conﬁrmatory or subsidiary basis.91 Concerning the course of the boundary in the sector of the River Niger, 85 86 87 88 89

90 91

Frontier Dispute (Benin/Niger), ICJ Reports 2005, p. 90. Ibid., pp. 103–107, paras. 17–22. Ibid., pp. 97–103, paras. 1–16. Ibid., pp. 103–107, paras. 17–22. F. Spadi. ‘The International Court of Justice Judgment in the Benin-Niger Border Dispute: The Interplay of Titles and ‘Eﬀectivités’ under the Uti Possidetis Juris Principle’ 18 Leiden Journal of International Law (2005), p. 780. ICJ Reports 2005, pp. 108–111, paras. 23–31. Ibid., p. 143, para. 128.

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Benin contends that the arrêté (decree) of 23 July 1900 established the boundary at the left bank of the River Niger, leaving the river itself and the islands located therein as part of that colony. Niger denies that the arrêté of 23 July 1900 established a boundary. The Chamber is of the view that the arrêté of 23 July did not determine the boundaries. The Chamber then turns to the acts invoked by Niger as evidence of its legal title, namely the arrêtés issued by the Governor-General of the AOF on 8 December 1934 and 27 October 1938. However, the Chamber ﬁnds itself unable to deduce therefrom that that boundary was situated in the river, whether at the thalweg or the median line. The Chamber concludes that the 1934 and 1938 arrêtés did not establish a boundary in the river. Therefore, Niger’s claims as to title cannot be sustained, either.92 Since neither of the Parties has succeeded in providing evidence of title, the Chamber turns to consider whether the evidence furnished by the Parties with respect to eﬀectivités can provide the basis for it to determine the course of the frontier in the sector of the River Niger. It mentions a number of previous cases in which the Court has ruled on the legal relationship between eﬀectivités and title, such as the Frontier Dispute (Burkina Faso/Republic of Mali), Territorial Dispute (Libyan Arab Jamahiriya/Chad), Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia).93 Procedually, it ﬁrst analyses the various activities prior to 1954, presented as eﬀectivités by the Parties. Then, it turns to the eﬀectivités in the period from 1954 until the critical date in 1960. On the basis of the evidence before it, the Chamber ﬁnds that the main navigable channel of the River Niger was considered by both sides to be the boundary and accordingly administrative authority was exercised. Thus, based on eﬀective control, it concludes that the boundary between Benin and Niger follows the main navigable channel of the River Niger.94 To determine the location of the boundary line in the River Mekrou, the Chamber at ﬁrst recalls that, in the case concerning Kasikili/Sedudu Island (Bostswana/Namibia), the Court observed that: Treaties or conventions which deﬁned boundaries in watercourses nowadays usually refer to the thalweg as the boundary when the watercourse is navigable and to the median line between the two banks when it is not, although it cannot be said that practice has been fully consistent. (ICJ Reports 1999 (II), p. 1062, para. 24.)95

The Chamber examines whether any legal documents provided by the parties would be able to identify the exact course of the thalweg of the Mekrou. When it

92 93 94 95

Ibid., pp. 120–127, paras. 45–74. Ibid., p. 127, para. 77. Ibid., pp. 127–33, paras. 75–102. Ibid., p. 149, para. 144.

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does not ﬁnd such documents, it considers that because the river did not appear navigable and in all likelihood there was a negligible diﬀerence between the thalweg and the median line, a boundary following the median line of the Mekrou would more satisfactorily meet the requirement of legal security inherent in the determination of an international boundary. The Chamber concludes that the median line of the River Mekrou constitutes the boundary between Benin and Niger.96 Noticeably, the geographical feature is a decisive factor in the Chamber’s decision when there is lack of legal documents and eﬀectivités related to the delimitation.97 The pattern indicated by the Chamber appears to be of signiﬁcance in international border disputes. Let us now see how this pattern (treaty, eﬀective control, geographical features such as watershed, median line and thalweg) can be used in China-India border disputes. 7.3.2

Western Sector

The reliability of the 1842 Treaty for delimitating the border in the Western Sector is very doubtful in legal sense. First of all, there is lack of convincing evidence to prove that China is the contracting party to the treaty and China had delegated Tibet a general power to sign boundary treaties independently with neighbouring states. In international law, it is a matter for the national law of each state to decide which oﬃcial or entity is competent to create international treaties on its behalf.98 Without China’s proper authorization, Tibet’s power to make boundary treaties becomes very controversial. Secondly, even if the 1842 treaty were valid, it only conﬁrmed the “old established frontiers” in the area and did not specify them.99 And India could not oﬀer any convincing evidence about where the old frontiers laid. Judge Fitzmaurice, in his separate opinion in the Temple of Preah Vihear Case, made a comment on this type of treaty: Conﬁrmation only conﬁrms what it is; it cannot per se alter, add to, or detract from the latter, which must be ascertained ab extra – in this case by reference to the previous treaty settlements and the events relevant to them.100

In practice, the ICJ applied the relative agreements for settlement of the frontier disputes only after checking that the agreements purported to delimitate the disputed frontiers and could fulﬁll that purpose. In the 1994 case of Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial

96 97 98 99 100

Ibid., pp. 149–50, paras. 144–5. F. Spadi, op. cit. (2005), p. 791. M. Dixon. International Law (Oxford University Press, Oxford/New York 2005), p. 58. White Paper III, pp. 62–3. See also A. Lamb, op. cit. (1965), pp. 37–52. ICJ Reports 1962, p. 62.

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Guinea intervening),101 as to whether a frontier binding on the Parties had been established, the Court at ﬁrst examined whether a frontier line had been speciﬁed in the Milner-Simon Declaration. In the Court’s opinion, the Court began to judge based on the agreements only when a speciﬁed line was conﬁrmed in the relative agreements.102 In the 1996 case of Kasikili/Sedudu Island (Botswana v. Namibia), the Court relied on the 1890 Anglo-German Treaty to decide a boundary observing that the purpose of the treaty was to delimit sphere of inﬂuence of the former powers and the disputing Parties accepted it as the treaty determining the boundary between their territories.103 The 1842 treaty, based on which India makes its claim, fails to meet the requirements set up by the ICJ. The 1684 Ladakh-Tibet Treaty is even more unreliable because no text of this agreement survives.104 Logically, the treaties of 1842 and 1684 cannot be applied to settlement of the Sino-Indian boundary dispute in the Western Sector. Following the pattern indicated by the Benin/Niger case, we shall turn to the principle of eﬀective control when there is no proper treaty to delimitate the disputed area. In the cases of the Island of Palmas and Eastern Greenland, the courts upheld the principle of eﬀective control.105 Indian army had never been to this area until its invasion in October 1959. Mr. Nehru himself admitted that Indian troops had never entered this area.106 And India gave a very weak argument, stating that the Indian Government did not think it necessary to set up check posts along the Sino-Indian western border because the area was uninhabited and mountainous and it did not expect any kind of aggression across its frontier in this sector. Actually, since 1950, the Chinese government has publicly undertaken various activities in this sector, such as constructing a 1,200-kilometer motor road linking Xinjiang and Tibet and setting up checkpoints. India’s silence about China’s activities before October 1958, on the other hand, attested to its lack of eﬀective control over the area. Historical records show that China started to control this area since the Qing Dynasty and it is quite sustainable that this area has been ﬁrmly controlled by the Chinese army at least since 1950 all the way to the present. Based on the above legal analysis, China has stronger claim using the eﬀective control argument.

101 102 103 104 105

106

ICJ Reports 2002, p. 303. ICJ Reports 2002, pp. 335–344, paras. 41–55. ICJ Reports 1999, pp. 1072–4, paras. 43–46. A. Lamb, op. cit. (1965), p. 37. J. B. Scott. The Hague Court Reports, Series 2 (Oxford University Press, New York 1932), pp. 88–131. M. O. Hudson. World Court Reports: A Collection of the Judgments, Orders, and Options of the Permanent Court of International Justice, vol. 3, 1932–1935 (Carnegie Endowment for International Peace, Washington 1938), pp. 151–195. N. Maxwell. India’s China War ( Jonathan Cape, London 1970), p. 130.

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7.3.3

Middle Sector

The dispute in the Middle Sector just concerns the ownership of some small areas, namely, the Spiti Area, Shipki Pass, Sang and Tsung, Barahoti, Sangchamalla and Lapthal. The 1954 Sino-Indian Trade Agreement in conjunction with its context in no way is a boundary treaty proper and cannot serve as the basis for the title of the six passes. Articles IV of the 1954 Agreement just provides: “Traders and pilgrims of both countries may travel by the following passes and route: (1) Shipki La pass, (2) Mana pass, (3) Niti pass, (4) Kungri Bingri pass, (5) Dharma pass, and (6) Lipu Lekh pass.” From such a wording, it cannot be construed that these passes belong to either of them. In fact, this wording was a result of compromise during the negotiation. The Chinese original draft was that “[T]he Chinese Government agrees to open the following mountain passes in the Ari district of the Tibet region of China for entry and exit by traders and pilgrims of both parties.” The Indian disagreed with the Chinese draft and gave its own draft wording, which was that “Traders and pilgrims from India and western Tibet may travel by the following localities and passes.” China rejected this wording. At last, the two sides agreed to change the wording into: “Traders and pilgrims from both countries may travel by the following localities and passes.”107 It is a quite logical conclusion that the 1954 agreement can neither decide the legal title to the six passes nor the title to the disputed areas in this sector. Theoretically, without valid treaties to delimit the border in this sector, the principle of eﬀective control should be applied, but the two sides have not yet given enough convincing evidence to justify their claim by eﬀective control. In such a case, the general practice of international courts and tribunals indicates that geographical features shall be relied on to determine the border line, namely, the border line being the watershed in case of mountain, the thalweg in case of navigable river, and the middle line in case of unnavigable river. Max Huber in his Award in the Palmas Case declared that the delimitation of territorial sovereignty in space may be achieved either by so-called natural frontiers as recognised by international law or by outward signs of delimitation that are undisputed or else by legal engagements entered into between interested neighbours, such as frontier conventions, or by acts of recognition of States within ﬁxed boundaries.108 In the 1996 Case concerning Kasikili/Sedudu Island (Botswana/Namibia),109 the International Court observed that: Treaties or conventions which deﬁne boundaries in water courses nowadays usually refer to the thalweg as the boundary when the watercourse is navigable and to the

107 108 109

White Paper III, pp. 62–3. Reports of International Arbitral Awards, Vol. II (United Nations), pp. 829, 838. ICJ Reports 1999, p. 1045.

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median line between the two banks when it is not, although it cannot be said that practice has been fully consistent.110

In the 2002 case of Frontier Dispute (Benin/Niger),111 the Court recalled the 1996 case. When it found the eﬀectivités relied on by both Benin and Niger in the sector of the River Mekrou were relatively weak, the Court concluded that the median line of that river constitutes the boundary between Benin and Niger.112 A. O. Cukwurah believed that “in the case of mountain boundaries, failing any special treaty arrangement, the general principle is that the boundary runs along the watershed.”113 In the case of the island of Timor, the Permanent Court of Arbitration applied the watershed principle in its award ﬁxing the boundary between the Netherlands and Portugal.114 In the Sino-Indian border dispute concerning the middle sector, with consideration of absence of any valid boundary treaty and the weak eﬀective control exercised by the two sides, a reasonable boundary should be drawn on the basis of the watershed principle.115 7.3.4

Eastern Sector

The border dispute in the Eastern Sector is very complicated because it raises such diﬃcult questions as the validity of the McMahon Line, the legality of Simla Conference, the status of Tibet at the Conference. But the prerequisite question is whether China had long exercised jurisdiction in this area before Indian invasion. If China would fail to give evidence enough to support its contention of eﬀective control, the watershed should become the only applicable line for settlement according to the pattern indicated by the Benin/Niger case. Thus, whether China can justify its claim based on eﬀective control over this area would be the key question in my examination. The P.R. China and the Republic of India have been eager to justify their claims to the disputed lands in the Eastern Sector based on the claims of their predecessors, namely, British India and the Republic of China. The new research reveals that neither British Indian nor the Republic of China exercised eﬀective authority

110 111 112 113 114

115

Ibid., p. 1062, para. 24. ICJ Reports 2005, pp. 90–151. Ibid., pp. 142–50, paras. 125–145. A. O. Cukwurah, op. cit. (1967), p. 41. J. B. Scott. The Hague Court Reports, Series 1 (Oxford University Press, New York 1916–1932), pp. 355–85. C. H. Lu. The Sino-Indian Border Dispute: A Legal Study (Greenwood Press, Connecticut 1986), p. 107.

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over the frontier lands in the Eastern Sector for the most time prior to 1947.116 As late as the summer of 1943, the government of India was authorized by the British government in London to set up a few posts in the Northeast Frontier Agency.117 In the summer of 1945, the Republic of China sent a small survey to some places such as Tawang, Lower Zyaul in the Northeast Frontier Agency for the ﬁrst time.118 Until the ﬁrst half of the twentieth century, the NEFA was not really British or Chinese or Tibetan, but an area of independent primitive tribes.119 Since October of 1949, when the P.R. China was founded, China has never had actual control over the NEFA. Although China retrieved the area by force during the 1962 Sino-Indian War, it quickly abandoned what it claimed and withdrew its troops to the area north of the McMahon Line.120 In 1959, the Chinese government themselves admitted that Chinese troops had never been sent across the socalled McMahon Line before.121 Whereas, India had taken various steps to extend its administration to most of the tribal areas south of the McMahon Line, and by 1950 or so it has established its actual control over the area.122 It is an undisputable fact that it is India that has administered the NEFA since 1950. In 1950, Indian Prime Minister Nehru declared that the McMahon Line was the Indian border and India speciﬁcally listed in its Constitution the tribal areas south of the McMahon Line as part of their territory.123 In international law, the state claiming title based on eﬀective control may be required to give evidence showing that it has set up an eﬀective local administration, and it can control and protect the population or it has established a system of national law.124 In the 1998 Indonesia v. Malaysia case, the ICJ upheld Malaysia’s contention because Malaysia gave the substantial evidence to show its administration of the territory in question.125 China has not produced substantial evidence to support its eﬀective control in the area. In addition, when Prime Minister Nehru gave notice to China that the Himalayas are India’s northern frontier in 1950,

116

117 118 119

120

121 122 123 124 125

H.-T. Lin. ‘Boundary, Sovereignty, and Imagination: Reconsidering the Frontier Disputes between British India and Republican China, 1914–47’ 32 (3) The Journal of Imperial and Commonwealth History (2004), pp. 25–47. Ibid., p. 35. Ibid., p. 36. Ibid., p. 38. See also G. F. Hudson. ‘The Frontier of China and Assam: Background to the Fighting’ 12 China Quarterly (1962), pp. 203–6. N. Maxwell. ‘Settlements and Disputes: China’s Approach to Territorial Issues’ Economic and Political Weekly (9 September 2006), pp. 3876–7. White Paper II, pp. 30–1. C. H. Lu, op. cit. (1986), p. 108. White Paper III, p. 92. M. Dixon, op. cit. (2005), p. 145. ICJ Reports 2002, paras. 148–9, pp. 685–6.

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China did not lodge any protest with India.126 The Chinese silence remained until 1956. Such a long time of silence, in fact, constituted acquiescence. Oppenheim gave the following remarks about a state’s silence: . . . if a state acquires knowledge of an act which it considers internationally illegal and in violation, and nevertheless does not protest, this attitude implies a renunciation of such rights, provided that a protest would have been necessary to preserve a claim. . . .127

In the Indonesia v. Malaysia case, the Court reconﬁrmed this rule in its merit: The Court moreover cannot disregard the fact that at the time when these activities (Malaysia’s administrative activities) were carried out, neither Indonesia nor its predecessor, the Netherlands, ever expressed its disagreement or protest. In this regard, the Court notes that in 1962 and 1963 the Indonesian authorities did not even remind the authorities of the colony of North Borneo, or Malaysia after its independence, that the construction of the lighthouse at the those time had taken place on territory which they considered Indonesian.128

Under current circumstances, China’s argument seems weaker than India’s in their claims to the Eastern Sector. If China would not justify its claim to the tribal areas south of the McMahon on the basis of eﬀective control, it would become less signiﬁcant to argue such questions as the validity of the McMahon Line, the legality of the Simla Conference and the status of Tibet at the Conference because the McMahon line would be the same as the watershed line, which would be the one and only line to be applied. Thus, no matter whether the McMahon line, which was produced at the Simla Conference by Tibet and Great Britain, was valid or not, the result would be the same, namely, the watershed principle would be relied on and the watershed line shall be the Sino-Indian border in the Eastern Sector if China would fail to give new substantial evidence.

7.4

A New Framework for Settlement

Conﬁdence building is generally regarded as precondition for successful border dispute resolution.129 This is especially true for the Sino-Indian border dispute. In the 1950s and 1960s, the absence of mutual trust was the direct contributory

126 127

128 129

H. F. Armstrong. ‘Where India Faces China’ 37 Foreign Aﬀ. (1958–1959), p. 617. L. Oppenheim. International Law: A Treatise ( Longmans, Green and Co., London 1955), pp. 874–5. ICJ Reports 2002, pp. 685–6, paras. 148–9. S. Wei. ‘Conﬁdence Building and Eﬃcient Methods for Border Disputes Resolution’ in J. Dahlitz (ed.) Peaceful Resolution of Major International Disputes (The United Nations, New York 1999), pp. 118–21.

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factor to the un-cooperativeness between China and India. Even where China adopted cooperation strategy, namely, the policy of status quo with expectation of resolving the boundary dispute by negotiations, at the early stage, India still stuck to its escalation strategy, namely, the “Forward Policy”, in attempt to change the status quo existing in the boundary areas.130 As a result, the border war broke out. China tried in vain to persuade India to adopt the cooperation policy. After lapse of 17 years, the two sides realized the importance of conﬁdence building in their border dispute and set out to build up their conﬁdence about each other. The visit to China by Indian Foreign Minister Atal Bihari in February 1979 was the starting point for their exploration of the Conﬁdence-Building Measures (hereinafter CBM).131 In the following years, China and India held a number of rounds of bilateral talks for this purpose. The ﬁrst round of talks took place in December 1981. During the talk, China put forward the so-called package proposal advocated by the late Chinese leader Deng Xiaoping, which entailed freezing the status quo on the ground, with minor concessions by both sides. But the Indian side questioned China’s seriousness because the Chinese side refused any cartographic examination. At last, India rejected Deng’s package proposal, contending that it equated the aggressor with the victim. Then China gave a new suggestion – freezing the border issue and developing economic, scientiﬁc and cultural exchanges. Once more, India rejected it due to the lack of trust. The ﬁrst round ended without accomplishing much beyond agreeing to meet again. The second round of talks achieved nothing, either. In the third round of talks, India’s position was that it would not discuss the legality of the case and would only seek some common ground without abandoning its legal position. In the fourth round of talks, the Indian side agreed to the Chinese suggestion that normalization should proceed in other spheres without necessarily linking them to the border talks.132 It would have been a real breakthrough in the ﬁfth round of talks if a kind of real mutual trust had been constructed in the Indian politics, because the Chinese appeared amenable to settling the dispute generally along the McMahon Line in 130

131

132

The Indian “forward policy” means that: i) Insist that all sectors of its border with China were already deﬁned, indisputable and therefore, non-negotiable; ii) As soon as possible advance its state forces into the territory claimed; iii) Refuse to enter into any agreement for maintaining the status quo until all territory claimed by India was under Indian control; iv) At all stages refuse to submit its claimed border alignments to negotiation. N. Maxwell. ‘Settlements and Disputes: China’s Approach to Territorial Issues’ Economic and Political Weekly (9 September 2006), pp. 3876–78. See also X. Huang and P. Qi. ‘Qianxi zhongguo zhengfu zai zhong yin bianjie zhengduan zhong de weiji chuli (An Brief Review of the Crisis Management of the Chinese Government during the Sino-Indian Border Dispute)’ 13 (1) Contemporary China History Studies (2006), p. 85. W. P. Sidhu and J.-D. Yuan. ‘Resolving the Sino-Indian Border Dispute: Building Conﬁdence through Cooperative Monitoring’ 41 (2) Asian Survey (Mar.–Apr.), p. 354. S. Ganguly. ‘The Sino-Indian Border Talks, 1981–1989: A View from New Delhi’ 29 (12) Asian Survey (1989), p. 1127.

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the Eastern Sector with India’s giving up its claims to the Aksai Chin area in the Western Sector. Nevertheless, in the end Indian domestic politics led to an abandonment of the proposal.133 In the sixth round of talks, the Chinese returned to their former claim that the traditional boundary line in the Eastern Sector ran well south of the McMahon Line. In December 1985, India re-stated that the resolution of the border problem was a prerequisite for a complete normalization of relations.134 In 1986, Sino-Indian relations deteriorated again.135 In July 1986, the distrust led the seventh round of border talks to little substantive agreement.136 The eighth round of talks especially stressed the need to avoid military confrontation.137 In December 1988, Indian Prime Minister Rajiv Gandhi visited Beijing. His trip produced a result of forming the Joint Working Group to deal exclusively with the border questions.138 Although the Joint Working Group (hereinafter JWG) was criticized domestically in India, this step made a great contribution to the conﬁdence building measures. The JWG meetings have been held 15 times by 2005.139 In addition, India and China have also held several meetings to discuss the border issues by special representatives and border experts.140 The concrete result was embodied in the two CBM agreements: the Agreement on Maintaining Peace and Tranquility in the Border Areas along the Line of Actual Control (Beijing, September 1993) and the Agreement on Conﬁdence-Building Measures in the Military Field along the Line of Actual Control in the India-China Border (New Delhi, December 1996).141 Over the past two decades, the process of Sino-Indian normalization and conﬁdence building have gradually evolved, marked by the following three distinct activities: 1) Summit meetings between the heads of state and government; 2) Regular exchange visits between high-ranking oﬃcials including the military, especially at the ministerial level; 3) A slow process of institutionalizing a series of conﬁdence building measures.142 Unfortunately, the conﬁdence has not yet been built up enough for a solution to be worked out. The 1993 and 1996 Sino-Indian CBM Agreements are rather

133 134 135 136

137 138 139 140

141

142

Ibid., p. 1128. Ibid., p. 1129. Ibid. Ibid., p. 1131. See also N. Jetly. ‘Sino-Indian Relations: A Quest for Normalization’ 47 (1) India Quarterly ( Jan.–Mar. 1986), p. 56. S. Ganuly, op. cit. (1989), p. 1131. S. Ganuly, Ibid., p. 1133. See News at [2 Aug. 2007]. Xin Hua News, at [21 Mar. 2008]. W. P. Sidhu and J.-D. Yuan. ‘Resolving the Sino-Indian Border Dispute: Building Conﬁdence through Cooperative Monitoring’ 41 (2) Asian Survey (Mar.–Apr.), p. 354. Ibid.

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declarative than containing substantial provisions.143 Although there is a display of determination by both parties to resolve the border issue, their basic diﬀerences on this matter prevent a signiﬁcant progress in their border negotiations. Sometimes the situation may become worse. For example, in November 2006, when Mr. Sun Yuxin, Chinese Ambassador in India, reiterated the Chinese statement that the Indian state of Arunachal Pradesh is Chinese territory, this immediately caused concerns in India.144 Mr. Sun’s words may imply a possible change in China’s policy when China loses its patience with India’s uncooperative response to its policy of “exchanging the east for the west.”145 China has not yet accepted the Optional System under Article 36(2) of the Statute of the ICJ. India has accepted it with reservations, which exclude the disputes concerning the status of its territory and delimitation of its boundaries.146 It seems impossible for India and China to sign a special agreement to submit their boundary disputes to the ICJ in the predictable future because their disputes are related to ownership of an area totaling over 100,000 square kilometers, three times as large as Taiwan. However, China has established its framework to settle its border disputes with its neighbours. This framework was ﬁrst formulated by the late Chinese Primier Zhou En-lai during the settlement of Sino-Burmese border dispute in the 1950s. The framework consists of the following steps: 1) Negotiate to locate the disputed area for delimitation; 2) Retain Status Quo pending ﬁnal settlement of the boundary disputes; 3) Negotiate in the spirit of mutual understanding and reconciliation and work for settlement by taking into account the factors such as the existing treaties, the current situation and the traditional customs in the disputed area; 4) Sign a new friendly border treaty.147

143 144

145

146

147

Ibid., p. 360. See News at [21 Mar. 2008]. The policy of “exchanging the east for the west” was ﬁrstly formulated by the late Chinese Prime Minister Zhou En-lai in the 1950s and 1960s. The agreement on the Political Guiding Principles on Sino-Indian Border Issues reached by the leaders of the two countries during the visit paid by the present Chinese Prime Minister Wen Jiabo to India in April 2005 basically followed Zhou’s border policy. See Art. V and VI of the Agreement between India and China on the Political Parameters and Guiding Principles for the Settlement of the India-China Boundary Questions, the text of the agreement is available at [21 Mar. 2008]. See the Indian declaration recognizing the jurisdiction of the ICJ as compulsory at [21 Mar. 2008]. X. Zhu. ‘Shilun Yingxiang Zhong Mian Zhong Yin Bianjie Wenti Jiejue de Yinsu (A Study on Determinants in Resolving Sino-Burmese and Sino-Indian Border Disputes)’, at [21 Mar. 2008].

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This framework was quite successful in settlement of the border issues between China and Burma, Mongolia, Pakistan, Afghanistan and Laos.148 It also contributed to settlement of the Sino-Vietnamese border dispute. Nevertheless, it appears inadequate for settlement of the Sino-Indian border disputes. In other words, the framework seems to need some modiﬁcation and improvement. The upgraded framework should involve conﬁdence building as the ﬁrst step; namely, the parties should agree to accept the general border dispute resolution pattern (treaty, eﬀective control and watershed) established by the ICJ case law. Although it is unrealistic for India and China to submit their border disputes to the ICJ, it is quite realistic for them to use the ICJ case law as general guidelines to negotiate a settlement of their disputes. Respect for international law and the ICJ case law can be regarded as one of the most important conﬁdence building measures. The Sino-Russian case has attested to the eﬀect of this step. The turning point during the Sino-Russian border disputes was the statement made by President Mikhail Gorbachev on 28 July 1986 in Vladivostok, in which he expressed the Soviet Union was willing to accept the thalweg principle.149 China immediately welcomed this statement and gained its conﬁdence to work on resolving the border dispute along Amur and Ussuri rivers with Russia.150 Starting with resolving the diﬀerences on those portions of the border where they were easier to settle was a valuable technique adopted by China and Russia during their process of settling their border disputes in the 1990s.151 In 1999, although the two Parties could not achieve delimitation of the border in the area of the Bolshoi Island on the Argun River and the island of Tarabarov and Bolshoi Ussuriysky on the Amur River, they signed the agreement on the eastern part of the Sino-Russian border that was comparatively easy to resolve.152 Similarly, the Middle Sector in the Sino-Indian border disputes is the easiest portion. Meanwhile, the dispute in that sector is, comparatively, less important because it just involves a small area of territory, less than 500 square kilometers. In 2000, the foreign ministers of the two countries even agreed to delineate the Middle Sector at ﬁrst.153 In November

148

149

150 151 152 153

X. Liao. ‘Jiejue bianjie wenti de dianfan – Zhou Enlai yu zhong mian Bianjie tanpan (A Paradigm of Solving Border Issues: Zhou Enlai and Sino-Burmese Border Negotiation), Historical Documents of the Chinese Communist Party’, at [21 Mar. 2008]. See People Daily News at [21 Mar. 2008]. See also C. E. Ziegler. Foreign Policy and East Asia, Learning and Adaptation in the Gorbachev Era (Cambridge University Press, Cambridge 1993), pp. 72–73. Ibid. V. S. Kotliar, op. cit. (1999), p. 129. Ibid., p. 130. See News at [21 Mar. 2008].

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2002, India and China reached an agreement on the location of the actual control line in the Middle Sector.154 India and China should ﬁrst reach an agreement declaring that they are willing to accept the border dispute resolution pattern (treaty, eﬀective control and watershed) upheld by the ICJ. According to this pattern, they could move on to negotiate a ﬁnal settlement of the dispute on the portion they feel easy to settle, such as the Middle Sector. Settlement of the dispute in the Middle Sector would certainly exert a positive inﬂuence on the negotiations to settle the disputes in the other two sectors. Although it is unlikely that Beijing and New Delhi will submit their border disputes to the ICJ for settlement in the current circumstances, it is possible for them to use the ICJ case law to appraise the relative strengths and weaknesses of their arguments. The ICJ case law would help them increase their conﬁdence and mutual trust. Accordingly, the new settlement framework would consist of the following steps: 1) Agree to use the general border dispute-resolving pattern (treaty, eﬀective control and watershed) established by the ICJ case law; 2) Negotiate with India to locate the disputed area for delimitation; 3) Retain Status Quo pending ﬁnal settlement of the boundary disputes; 4) Negotiate in the spirit of mutual understanding and reconciliation and work out a settlement based on international law and the rules and principles used by the ICJ; 5) Sign a new border treaty with India.

154

See News at [21 Mar. 2008].

Conclusions Although territorial and boundary disputes are diﬀerent, they are closely interrelated. In fact, territorial and boundary questions are part of the larger question of territorial sovereignty and they involve comparable sets of claims and counterclaims and legal policies.1 They both deﬁne the scope of a state’s sovereignty. When focus is placed on the application of the rules of acquiescence, recognition and estoppel, the diﬀerence between territorial and boundary disputes could be ignored. More often than not, the settlement of a maritime dispute cannot circumvent the problem of the territorial dispute over islands in the disputed area. Most of territorial and boundary disputes have their political prominence and the relevant arguments are both political and legal. In order to appraise the arguments legally and settle the disputes, it is necessary for the disputing parties to take a legal perspective of their disputes. A legal perspective presumes that territorial and boundary disputes are, in principle, justiciable. It is impossible and unnecessary to bring every territorial or boundary dispute to an international court or tribunal, but the case law elaborated by international courts and tribunals is an important basis from which the disputing parties argue and negotiate. In order to increase the political will of the disputants and achieve permanent peace in the disputed areas, it is necessary for the disputing parties to make some economic arrangements beforehand to secure the mutual beneﬁt from the resources in the disputed areas. Such arrangements are essential components in the new framework for settlement of China’s territorial and boundary disputes. Negotiation still remains as one of the most important instruments for settlement of territorial and boundary disputes. Some tendencies concerning dispute resolution mechanisms remind us of the importance of the exhaustion of negotiations in a settlement framework. In order to settle such sensitive disputes as territorial and boundary disputes, the disputants should be given enough chances to negotiate based on international law, with special emphasis on the rules and principles as interpreted by international courts and tribunals. But, in no way can it be justiﬁed that diplomatic negotiations are the only perfect method to settle territorial and boundary disputes. An intervention of a third party may help the disputants to settle their disputes without unnecessary delay and loss of face. The analysis of the ICJ case suggests that some justiﬁcations are more acceptable in the issues of territorial claims, such as treaties, eﬀective control, uti possidetis,

1

S. P. Sharma, op. cit. (1997), p. 23.

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geography, economy, history, strategy, state interests. Three of them have operated consistently as the ICJ’s decision rule: treaty, uti possidetis and eﬀective control.2 In maritime boundary disputes, the ICJ applies equitable principles to achieve justiﬁed results. Meanwhile, the concept of critical date is most frequently resorted to in cases of territorial and boundary disputes before the ICJ. China’s current attitude to international law as well as international courts and tribunals presents both problems and opportunities. The problems are related to its traditional concepts of Li and Fa, its pragmatic approach, and its ambiguous attitude to sovereignty and the sources of international law. Pragmatism has ever been the most prominent feature of China’s approach to international law. The concepts of Li and Fa are more likely to turn international law into a temporary expedient instead of a permanent method. Originating from its cultural and historical root, China adheres to negotiations and consultations in its dispute resolution mechanisms, especially for settlement of its territorial and boundary disputes. But the complexity of territorial and boundary disputes makes it diﬃcult, or sometimes impossible, to achieve settlement by political negotiations and consultations. In the new millennium, China’s economic ambition has caused the government to shift its policy to the so-called “peaceful rise” or “peaceful development”. Such a shift has given some new contexts in which we are obliged to discuss a new framework for settlement of China’s territorial and boundary disputes. This new context is mainly reﬂected in the positive changes in China’s ideology, sense of law, motives for legal perspectives of its territorial and boundary disputes. This positive context can be interpreted as an opportunity for China to rethink the roles of international law and international courts and tribunals in resolving its territorial and boundary disputes. Since China has acceded to the 1982 UNCLOS, the dispute settlement system of the Convention, which includes the third party involvement, is binding on China. This will be very helpful for settlement of the maritime boundary disputes in the East China Sea and the South China Sea. Although it is unrealistic to design one dispute resolution framework suitable for all China’s territorial and boundary disputes, it is possible and necessary, in the new context, to design a general one as guidance, under which speciﬁc frameworks can be constructed for settlement of the three major disputes China is involved in, namely, the disputes in the East China Sea, the disputes in the South China Sea and the Sino-Indian border disputes.

2

B. T. Sumner, op. cit. (2003–2004), pp. 1811–2.

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Index Ab initio, 88, 106 Acquisition, 8, 27, 28, 44, 98 cession, 1, 27, 30, 110, 161, 180, 184 conquest, 27, 30, 48 occupation, 1, 27, 30, 42, 44, 48, 145, 146, 147 prescription, 27, 30, 152 Land and Maritime Boundary (Cameroon v. Nigeria) case, 43, 44, 52, 184, 205, 206–207 Actuality, 77–78 Adherence to negotiations and consultations, 113–117 Ad hoc, 53, 56, 116, 161 Aksai Chin, 191, 192, 201, 202–203, 213 Analysis, 49–65 Anti-egalitarian, 73, 74 Appraisal, 152–159, 176–184, 203–211 Approach China’s approach to international law, 71–107 China’s approach to international dispute resolution, 109–135 pragmatic approach, 76–79, 92–93 pragmatic consideration, 126 pragmatic nationalism, 111–113 Arunachal Pradesh, 1, 191, 196, 214 Article 38 (1) of the Statute of the ICJ, 86–87 Association of South East Asian Nations (ASEAN) members, 99, 101, 104, 168, 184–185 Assam, 199 Attitude China’s attitude to customary international law, 85–87 China’s attitude to the ICJ, 119–120 Bahrain and Qatar, 45, 133–134 Beth A. Simmons, 132 Bruneian claims, 175 Boundary disputes, 27–32, 37–40, 99, 102 artiﬁcial boundaries, 21

Beagle Channel case, 30, 57, 62 border disputes, 89–90, 96, 98, 100, 102, 215 conventional boundaries, 21 geographical boundaries, 21–22 Gulf of Tonkin, 31, 126, 179–180 land border disputes, 95, 102 natural boundaries, 21–22 status quo, 102–104 Bourgeois product, 77 Bruneian Claims, 175 Cairo Declaration, 146, 153, 172, 179 Case concerning Kasikili/Sedudu Island (Botswana/Namibia), 205, 208 Chen Kan, 145 China’s adherence China’s adherence to negotiations and consultations, 8, 13, 114–115, 117 China’s ambiguity, 8 China’s foreign policy, 75, 77, 78, 92, 95, 134 China’s “good neighbour” policy, 9, 186 Open Door Policy, 93, 94 China law administrative procedural law, 85 China’ law on the EEZ and the Continental Shelf, 150 General Principles of the Civil Law of the People’s Republic of China, 85 law of succession, 85 maritime law, 85 patent law, 85 trademark law, 85 China’ options, 9, 13, 107, 120–126 China’s pattern of resolving its border disputes, 113–114, 214 China’s peaceful development, 127 China’s peaceful rise, 127, 128, 218 peace, 128–130 Chinese characteristics, 75 Chinese claims, 144–147, 168–173, 200–203 Chinese Communist Party, 77

236

Index

Chinese philosophy A Book for Merchants, 133 Fa, 71–76 Sense of Fa, 94–98 Li, 71–76 Chinese pragmatism, 76–79 Chunxiao gas ﬁeld, 112, 143, 144 Circumstances, 46, 47, 149, 156 Delimitation of the Tonkin Gulf, 31, 126 Tunisia/Libya case, 35 Classiﬁcation, 24–25 Code of conduct in the South China Sea, 101, 114, 185 Cold War, 64, 65, 82, 119 Conﬂicting claims, 144–154, 168–175, 196–200 Confucianism, 7, 9, 71, 72, 74, 75, 95, 109, 110, 111 Concept concept of settlement of territorial and boundary disputes, 37–40 concepts of territorial and boundary disputes, 19–32 concept of the universal state, 74 Confucian conception of minimum order, 75 the ICJ’s concept of settlement, 37 traditional concepts, 9, 71–76, Conciliation, 58–59 conciliation in the UNCLOS, 123–124 Conﬁdence-Building Measures (CBM), 212, 213 Co-operation, 130–132 co-operation principle in the UNCLOS, 107 Continental shelf, 5, 35, 107 Gulf of Maine case, 25–36, 157, 158 Tunisia/Libya case, 35 Critical date, 48–49, 154, 180, 205 Culture, 40, 60, 93, 115 culturism, 109–110 traditional culture, 76, 110, 111, 114, 124 Cultural Revolution, 94, 111, 170 Customary international law, 86, 106, 155, 119 China’s attitude, 87 Dai Bingguo, 100 Dalai Lama, 198, 203

Declarations, China’s declarations, 122, 123 Declaration on the Conduct of Parties in the South China Sea, 101, 168, 185 Demarcation, 21, 27, 35, 39, 89, 149, 157, 201 Deng Xiaoping, 7, 79, 92, 93, 94, 185 Developed countries, 34, 80 Developing countries, 34, 80 Development, 132–134 China’s development, 127 economic development, 77, 78, 94, 98–101, 112 Diaoyu/Senkaku Islands, 139 Discovery, 145, 168, 147, 176 Disputes legal disputes, 2, 24–27 political disputes, 2, 24–27 Corfu Channel case, 26 Nicaragua v. U.S. case, 25, 131 the disputes brought to the ICJ, 33 Dispute settlement ﬁnality, 38 legal methods, 25, 61 adjudication, 62–65 arbitration, 59–62 political methods, 25 conciliation, 58–59 consultation, 56–57 good oﬃces, 50, 57 inquiry, 58 mediation, 57–58 negotiation, 53–57 third party settlement, 53, 54, 56, 118, 121, 127, 160 Distinction between territorial and boundary disputes, 27 Beagle Channel case, 30 Land, Island and Maritime Frontier case, 29–30 North Sea Continental Shelf case, 29 DSB (Dispute Settlement Body), 66, 118 East China Sea, 139 Eastern Sector, 209 Economy, 45–46 Brcko Area Arbitration, 46 Economic development, 34–36, 77 EEZ, 107, 143, 148–149, 150–151

Index Eﬀective control, 42–43 Minquiers and Ecrecho (France/United Kingdom) case, 42–43 Erga omnes, 93, 131 Eritreal/Yemen Arbitration case, 181 Elitism, 5, 40 Empress Dowager Cixi, 145 Enforcement, 27, 122, 149 Energy, 34, 99 Potential energy reserves, 100, 142 Equidistance principle, 149, 155 Equitable solution, 155–159 ignoring small islands in the delimitation, 158–159 the factors involving in reaching an equitable delimitation, 156 Equity, 46–47, 156, 158, Continental Shelf (Tunisia/Libya) case, 46–47 equity principle, 149, 156 Establishment of a boundary, 21 Estoppel 27–29 Temple of Preah Vihear case, 29, 206 Ex aequo et bono, 47 Expedient policy, 79 Exploitation of oil and gas, 4, 34, 35, 106, 150 Exploration of oil and gas, 4, 34, 35, 106, 150 Fayuan, 76 Features features of international disputes, 23–24 Hostages case, 23 features of new territorial and boundary disputes, 32–36 Framework proposed framework, 135 settlement framework, 159–162 Free choice of means, 51–52 Southern Blueﬁn Tuna dispute, 52 Five Principles of Peaceful Co-existence, 80 Flexible attitude, 85–86 Friendly Relations Declaration, 130 Frontier, 20 Frontier Dispute (Benin/Niger) case, 204–206 Fundamental principles, 89, 93, 130 General Assembly, 86–87 Geneva Continental Shelf Convention, 149

237

Geography, 44–45 geographical features of the Western Sector, 203 Maritime Delimitation and Territorial Questions (Qatar v. Bahrain) case, 45 Rann of Kutch Arbitration case, 44–45 Taba Area Arbitration case, 45 Guanxi, 114–115, 123 Guo Yu, 169 Harmonious relationship, 61, 73 Haya de la Torre (Colombia/Peru) case, 57 Hague conventions, 58–59, 62 Henry Wheaton, 77 High Council, 187 Hierarchical structure, 73, 84–87 History Anglo-Norwegian Fisheries case, 44, 46 history of disputes, 139–144, 163–168, 191–196 Honduras v. El Slavador case, 134 Huang Hua, 196 Huguang Railway Bonds case, 81 ICSID, 9, 118 Ideology, 75, 77, 91–94, 115 Indian claims, 196–200 Indonesia v. Malaysia case, 176–178 International disputes, 24, 25, 59, 130 broad concept, 23 conﬂict, 24 criteria, 24–25 narrow concept, 23 political questions, 25 International Li, 74–75 International practice, 85–86 International relations, 30, 78–79 International tribunals, 155 the International Tribunal for the Law of the Sea, 12, 124, 135 ipso facto, 106 Jackson v. the People’s Republic of China case, 81 Japan’s law on the EEZ and the Continental Shelf, 151 Japan Youth Federation, 142 Japanese claims, 147–148, 150–151 Japanese Instrument of Surrender, 146, 153

238

Index

J. G. Merrills, 23, 129 Joint development, 104–107 Joint development zone, 161 Joint Working Group ( JWG), 213 Judge Sir Hersch Lauterpacht, 129 Judicial negotiation, 67–68 Aegean Sea Continental Shelf case, 67 Fisheries Jurisdiction (UK v. Iceland) case, 67 Trial of Pakistani Prisoners of War (Pakistan v. India) case, 68 Jurisdiction, 51, 59, 116–118, 121, 129 China’s declarations, 122, 123 Justiciable, 2–3, 26, 32, 64, 129 Kalayaan, 166, 167, 174 KMT government, 117 Kongka Pass, 194 Ladakh, 192, 198, 199–200 Law of the PRC on the Territorial Sea and Contiguous Zone, 173 Legal justiﬁcations, 40–47 Legal perspectives, 32, 218 Legal Status of Eastern Greenland case, 180 Legalism, 7, 71, 72 Legitimate, 39, 103, 107 Legitimacy, 8, 29, 39, 74, 113, 162 Li Zhaoxing, 134 Li Zhimin, 172 Line of Actual Control, 102, 103, 195, 213 Malaysian claims, 175 Mao Zedong, 75, 92, 96, 111 Maritime delimitation Chinese view, 148–150 Japanese view, 150–151 Maritime disputes, 31, 132 maritime boundary dispute, 29, 35, 46, 126, 154–159 Mark J. Valencia’s suggestion, 185 Maps, 171 McMahon Line, 195, 200 Middle Sector, 191, 194, 195, 197, 202, 208–209, 215–216 Mikhail Gorbachev, 215 Vladivostok speech, 215 Ming Dynasty, 145 Mischief Reef, 174–175 Motives, 98–102, 132, 218

Nanjing massacre, 112 National Interests, 9, 94, 111, 119 Nationalism Chinese nationalism, 109–113, 125, 159–160, 162 antitraditionalism, 111 Li Hongzhang, 110 nativism, 111 pragmatism, 111–113 Nature, 19, 20 n. 8 Natural prolongation, 148–149 Nehru, 192 Nicaragua v. Colombia case, 129, 134 North East Frontier Agency (NEFA), 191, 196 Occupation, 145, 147 Obligation, 3, 9, 30, 31, 51, 80, 81, 88, 95, 102, 103, 105, 122, 155 legal obligation, 153 obligation to co-operate, 105, 130, 131 the obligation under the TAC, 187 Okinawa Reversion Treaty, 141–142, 148 Okinawa Trough, 139 One China policy, 147, 164 Onus proband, 103 Opportunities, 91–107, 117–134 Optional clause declaration, 129, 160 Outlines, 135 OSCE, 65, 67 Ownership, 34, 40, 79 ownership of a rabbit, 133 Pacta sunt servanda rule, 88 Peace, 128–130 peaceful settlement, 50–52 People’s Republic of China, 68, 88, 118 Permanent, 53 Philippine Claims, 174 Physical phenomenon, 38 Implications political implications, 126–134 positive implications, 127, 128, 159 Potsdam Proclamation, 146, 153, 172, 179 Prescription, 27, 30, 152 Principle of watershed, 193, 197, 202 Problems, 71–90, 109–117 Proportionality, 156, 157

Index Case Concerning the Continental Shelf (Libyan v. Malta), 156, 157 Proposed framework, 135–136 Psychological phenomenon, 38–40 Qing dynasty, 169, 170, 201, 207 a widow’s story, 73 Qing government, 77 Quasi-judicial, 11, 14, 135, 162, 178, 188 Rajiv Gandhi, 196 Real law, 7, 73, 75 Recognition, 27–28, recognition of the PRC, 82 the recognitions by the Vietnamese government, 172 Reconciled will, 78 Regional agencies, 6, 51 Regional arrangements, 67, 130 Renmin Ribao, 95, 141, 142 Reservations, 66, 117, 160 Chinese reservations, 117–120 Indian reservations, 25, 214 The 1982 UNCLOS, 121 Resolution Mechanism tendencies, 65–68 WTO systems, 118 River Mekou, 205 Robert Mandel, 128 Rule-based pragmatism, 79 Ryukyu Islands, 139, 142, 146, 147, 153 San Francisco Peace Treaty, 147, 148, 173 Security Council, 8, 12, 51, 119, 122 Settlement, 38–40 Shanghai Co-operation Organisation, 99 Shen xuanhuai, 146 Shi Jin, 169 Shi Liuqiu Lu, 145 Shunfeng Xiangsong, 145 Sino-Burmese Treaty, 194 Sinocentric world, 73, 74 Sino-Indian disputes, 191–216 China’s package deal, 196 Chinese Prime Minister’s letters, 193 China’s three-point ceaseﬁre formula, 195 Indian Prime Minister’s letters, 193, 197 the 1842 treaty, 200–201

239

the 1954 Agreement, 192, 197, 198 treaties, 102 Sino-Japanese disputes, 139–162 Sino-Japanese Fishery Agreement, 159 Sino-Japanese talks, 139, 144 Sino-Japanese treaties, 101 Sino-Japanese War, 145, 146 Sino-Russian, 7, 11, 15, 89–90, 95, 99 Bolshoi Ussurisky, 96 border disputes, 97–98, 215 energy deal, 99 Heixiazi Dao, 96 the Sino-Russian settlement framework, 103–104 Sources of international law, 84–90 Sovereignty, 79–84 absolute sovereignty, 8, 81–84 China’s perforated shield, 79–84 relative sovereignty, 8, 81–84 state sovereignty, 80–83 Sovereignty over Pulau Litgitian and Pualu Sipan case, 154, 176–178 territorial sovereignty, South China Sea Spratly Islands, 164 Charles Liu’s argument, 186 China’s display of its authority, 182 Taiping/Itu Aba Island, 164 the 1891 Conventions between Great Britain and the Netherlands, 176–177 the 1887 Sino-French Convention, 178 treaties related, 178–179 Strategy, 40 co-operation strategy, 212 energy strategy, 99, 127 delay-strategy, 187 Taiwan, 144–145, 188 Tatsushiro Koga, 147 Tawang, 210 Tendencies, 65–68 Terra nullius, 42, 183 Territory, 22 Island of Palmas Arbitration case, 22, 183 Territorial Disputes, 19, 27, 30, 37–40, 100, 104, 134 Case concerning the Territorial Dispute, 27 diaoyu/senkaku islands, 140–161 Spratly Islands, 163–190

240

Index

uti possidetis, 43–44, 204 Land and Maritime Boundary (Cameroon v. Nigeria) case, 43–44 shelving the territorial disputes, 142 Thalweg, 96, 97, 103, 204–206, 208, 215 The International Court of Justice the ICJ’s general pattern for settling border disputes, 203–204 the sources of international law, 84 Third World, 75, 93 Tibet, 42, 83, 192–193, 195, 197, 200–203, 206–211 the 1684 Ladakh-Tibet Treaty, 207 Three-phase process, 135 Threats to international peace and security, 30–31, 33 Tomas Cloma, 174 Traditional concepts, 71–76 Treaty Belgium/Netherlands case, 41 Libya/Chad case, 41 unequal treaty, 88–90 Treaty of Amity and Cooperation (TAC), 168 Traditional preference, 10, 113–114 Truong Sa Lon, 168

UN Charter, 51, 57, 67, 130, 132 UNESCO, 170, 182 UNCLOS, 120–126 Vienna Convention on the Law of Treaties, 153–154 Vietnamese claims, 174 Wang Tieya, 78, 86, 93, 95 Western Sector, 191, 196, 198–202, 206–209 Win-win, 96, 125 WTO, 66 China’s entry into WTO, 118–119 Wu-je area, 193 Xenophobia, 8, 109, 110–111 Yi Zhou Shu, 169 Zhou Enlai, 89 Zhou Gengsheng, 80 Zero-sum, 125 Zhang Renjun, 169 Zheng He, 181 Zuo Zhuan, 169