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导读：本文是是美国本科法律专业留学生的一篇essay，基本从以下这些角度分析了中国海南问题-A South china sea topic,does that means I can choose the china part,see what the best interest for china,and what china can do for the south china sea ,Both why china want the south china sea,and why the foreign country don't want to china get this place,
1.0 Introduction介绍
南海位于中国东南方向，面积约356万平方公里。目前，中国、越南、菲律宾、印度尼西亚、马来西亚和文莱等六个国家都声称对南海珊瑚礁拥有主权（Encomienda，2013年）。由于各国主权主张地区存在较大重叠，导致争端的存在，由于中国在该地区国家中拥有最强的综合国力，该地区的争端主要表现为中国与其他国家之间的领土争端。争议的存在对地区、有关各方和世界的和平与发展构成威胁，因此有必要了解争议存在的原因，探讨解决争议的途径。本文首先介绍了南海的利益，然后分析了中国和其他国家对南海主权主张的国际法依据。随后又提出了其他国际争端解决案例。最后，建议各国如何利用法律手段维护主权，和平解决南海争端。
South China Sea is located in the southeast direction of China, the area is about 3.56 million square kilometers. Currently, there are six countries, including China, Vietnam, the Philippines, Indonesia, Malaysia and Brunei, which have claimed sovereignty over the reefs in the South China Sea (Encomienda, 2013). As there is a large overlap in the regions claimed sovereignty by the states, leading to the existence of disputes, as China has the strongest comprehensive national power among the countries in the region, the disputes in the region are mainly manifested as territorial disputes between China and other countries. The existence of the disputes is a threat for the peace and development of the region, the parties involved and the world, thus it is necessary to understand the reasons for the existence of the disputes and explore ways to resolve the disputes. This essay first introduced the interests of the South China Sea, followed by analysis on the international law basis for sovereignty claims by China and other countries towards the South China Sea. Then it presented other international cases of settlement of the disputes. Finally, it recommended on how the countries could use legal means to safeguard their sovereign rights to resolve disputes on the South China Sea peacefully.
2.0 Body主体
2.1 Interests of the South China Sea南海利益
2.1.1 Rich natural resources丰富的自然资源
西南海域海底资源十分丰富，特别是巨大的石油天然气储量。数据显示，南海拥有200多个油气结构，约180个油气田，相当于全球储量的12%，被称为“第二波斯湾”。而南海海底天然气储量为15万亿立方米。南沙是一个分布最广的珊瑚礁的大型热带渔场，拥有丰富的渔业和旅游资源（吴，2013）。
There are very rich seabed resources in the waters of Southwest China Sea, especially the huge oil and natural gas reserves. Data show that the South China Sea has more than 200 oil and gas structure, about 180 oil and gas fields, which is equivalent to 12% of the global reserves, it is known as the "second Persian Gulf". While the seabed reserves of natural gas of the South China Sea are 15 trillion cubic meters. Nansha is a large tropical fish farm scattered with the most extensive coral reefs, it has a wealth of fisheries and tourism resources (Wu, 2013).
2.1.2 Transportation hub
The South China Sea is an important sea lane connecting the East Asian countries and the rest of the world. It is also the sea corridor between the Pacific Ocean and the Indian Ocean, and it is known as “Asian Mediterranean”. Each year, more than 40,000 ships pass through the South China Sea. Who controls these strategic maritime channels will be able to threaten the economic security of China, South Korea, Japan and other East Asian countries (Li and Zhang, 2013; Hong, 2013).
2.1.3 Important strategic status
The military strategic position of Nansha Islands is very important. Who can control the waters of the Nansha will have an increased national military defense depth of 1000 km. Thus it has outstanding significance for national defense security (Li and Zhang, 2013).
It is precisely because the South China Sea is so important for these countries, so the neighboring countries have increased their claims for sovereignty of the South China Sea. However, the interests that the different countries value are different, in addition to China, the other countries mainly focus on the natural resources of the South China Sea, for instance, Vietnam has opened three large oil fields in the South China Sea and acquired more than 25 billion US dollars because of that, currently oil of the South China Sea has become the first pillar industry of the Vietnamese national economy (Wu, 2013). China thinks highly of the South China Sea, which is mainly because of the importance of its traffic and strategic positions, China is mainly through the control of the South China Sea to defend their national economy and national defense security, but other countries, including Japan, are threatened by China's strong national military strength and fear that if China has mastered the South China Sea, it will threat other countries' economic and national security, and therefore they oppose China's claims for sovereignty of the South China Sea (Wu, 2013).
2.2 Basis of international laws
2.2.1 The basis from international laws for China
In the fifteenth and sixteenth centuries, in the era of geographical discovery, "discovery" played an important role in territorial acquisition. During this period, and even later in the 18th century, the doctrine of authoritative public jurists and international law recognized that people who discovered a land without owners would have complete power towards the land (Wu, 2013). According to historical data, China found the South China Sea 1900 years ago. Since the discovery of the South China Sea, Chinese people continued to come to the islands of the South China Sea to fish, reclaim and be engaged in other production activities. China's navigational skills and capabilities, such as the compass and shipbuilding were at the forefront in the world, which could prove this. The fact that Chinese people first discovered the Nansha Islands can not be denied (Wu, 2013; Delisle, 2012).
According to international laws after the 18th century, "preemption" is a way to obtain territory. "Preemption" means that a state has the right to acquire territorial sovereignty of a land without owners. Preemption must depend on two conditions, first, the object preempted must be a land without owners, Second, There must be effective occupation (Coalter, 2008). China's Nansha Islands were first discovered by the ancient Fujian and fishermen, and they began to live and be engage in fishing, development and other production activities in the Nansha Islands. This objectively constitutes China’s actual possession towards the South China Sea islands after the discovery. 800 years ago, the Nansha Islands were governed under the ancient Hainan government of China. More than 400 years ago, the South China Sea islands had been mapped into the territory of China. China not only discovered the South China Sea islands first, but also has effective exercise of sovereignty, and it has never given up the sovereignty over the Nansha Islands. From the "preemption" point of view, the Nansha Islands is China inherent land (Wu, 2013).
Estoppel is defined in international law as that a state, on the basis of good faith and impartiality, should take a consistent legal position on any particular factual or legal situation so as to prevent harming other states because of its inconsistent position (Jayakumar and Koh, 2009). On June 15, 1956, Vice Minister of Foreign Affairs of Viet Nam named Yong Wenqian met with the charge d'affaires of the Chinese Embassy in Vietnam, the charge d'affaires solemnly stated that "historically, the Hsisha Islands and the Nansha Islands should belong to Chinese territory (Wu, 2013).
The Philippine government and the Malaysian government have not directly recognized China's sovereignty over the Nansha Islands, but many of facts have shown that these governments have indirectly recognized China's territorial claims on the Nansha Islands. They have the same territorial claims to the Nansha Islands as what Vietnam did, they have gone against their past attitude of recognition or acquiescence of China's sovereignty over the Nansha Islands, which constitutes a breach of the "estoppel" principle (Wu, 2013).
2.2.2 Basis from international law for other countries
Of course, the Philippines, Vietnam and other countries also believe that their sovereignty claims to the South China Sea are in full compliance with the provisions of the United Nations Convention on the Law of the Sea, China, as a signatory to the United Nations Convention on the Law of the Sea, should comply with its provisions and recognize their claims. The Philippines, Vietnam and other countries dare to claiming to Huangyan Island and part of Nansha Islands for sovereignty through laws, their main basis is the United Nations Convention on the Law of the Sea passed in 1982. Huangyan Island, for example, is within 200 nautical miles of the Philippine island of Luzon, and thus Huangyan Island is within the territorial jurisdiction of the Philippines, thereby they claimed sovereignty over Huangyan Island (Chang, 2012). But there is also a lot of controversy about this proposition. Many islands of Greece in the Aegean Sea are only 3 nautical miles off the coast of Turkey, but these islands are not part of Turkey. If this idea is reached, the world territory will probably have to be redrawn (Wu, 2013).#p#分页标题#e#
In addition, although China's early discovery of the South China Sea is a fact, the Philippines, Vietnam and other countries believe that China failed to have effective jurisdiction and actual control in these areas, and they have effective control towards the South China Sea islands for decades. According to prescription principle, they should enjoy the sovereignty of these islands. The term "prescription" in international law refers to that when a state acquires and possesses the territory of the other country’s for a long period of time, and the state has exercised the occupying power towards the occupied land over a period of undisturbed possession, which gradually conforms to the acts of acquiring territory provided in international order, regardless of whether the initial possession is legality and goodwill (Coalter, 2008). However, in the modern international community, mutual respect for sovereignty and territorial integrity has become a fundamental principle of international laws, and the acquisition of territory by timeliness was a clear violation of that principle. In addition, at the beginning of the Philippines’ occupation of part of the Nansha Islands, it has encountered China’s strong, continuous opposition and diplomatic protest, so with this prescription to get the sovereignty of the South China Sea is also very controversial (Wu, 2013).
2.3 ICJ decisions on territorial disputes
2.3.1 Ligitan and Sipadan Island decision
Malaysia and Indonesia have disputed over sovereignty of Ligitan and Sipadan, and the International Court of Justice (ICJ) took "effective occupation" as an important basis to rule on. The International Court of Justice held that when Malaysia exercised its sovereignty over the two islands, such as enacting laws to protect sea turtles and setting up beacon towers, it was an official administrative act with legislative, jurisdictional and quasi-judicial characteristics. Indonesia did not propose any form of protests. Malaysia has sustained and effective governance of these two islands for a sufficiently long period of time, which is the decisive evidence of Malaysia's sovereignty. Thus the International Court awarded sovereignty over Ligitan and Sipadan Island to Malaysia (Coalter, 2008).
2.3.2 The Hawar Islands decision
Qatar and Bahrain had disputed the sovereignty of the Hawar Islands. Both Qatar and Bahrain had become British protectorates, and in 1939, the British government ruled that the Hawar Islands belonged to Bahrain rather than to Qatar. The International Court of Justice held that the award was still binding after the two countries had not accepted British protection in 1971. Therefore, the Court did not consider other legal issues, in 2001, sovereignty of the Hawar Islands was directly ruled to Bahrain (Coalter, 2008).
2.3.3 Pedra Branca decision
In 2003, Malaysia and Singapore agreed to hand over the dispute on sovereignty of Pedra Branca to ICJ. ICJ considered evidence such as maps and correspondence to declare that Malaysia had an original claim to Pedra Branca. But after 1844, the United Kingdom and Singapore were effective in the management of Pedra Branca. On the contrary, Malaysia's sovereign oath and effective governance in Pedra Branca were missing, and it gave tacit consent to the administration of Singapore for a enough long period of time. After 1979, Malaysia once again claimed for the sovereignty over Pedra Branca, which has violated "estoppel" principle, therefore ruling that Singapore won the sovereignty of Pedra Branca (Jayakumar and Koh, 2009).
2.3.4 Characteristics of ICJ decision
It can be found through the cases that ICJ has accepted since its inception and did not make substantive judgments that there is a hierarchical structure of priority procedure in its judgment basis: first is the law of treaties, second is the principle of effective control (Keyuan, 2009). First, if there is a clear international treaty between the two parties of disputes, ICJ may proceed accordingly. Second, in the absence of a treaty or international agreement as a basis for award, ICJ will turn to seek effective control and other legal basis (Keyuan, 2009). In the recent judgment of ICJ, it too often considers "effective control" and weakens the original rights of the state party. When the historical evidence provided by a state party is numerous and even contradictory, ICJ tends to ignore this primitive right and attach importance to "effective control" so that "effective control" tends to be abused, which aggravates conflicts between two countries for territorial disputes (Keyuan, 2009; Chang, 2012).
2.4 International Court of Justice ruling on the protection of sovereignty of countries
2.4.1 Strengthen the collection of critical evidence
In view of the fact that in the recent cases of ICJ, initial right has weakened, the parties involved should seek not only prima facie evidence but also relevant treaty evidence (Jayakumar and Koh, 2009). The treaty includes not only formal border treaties, but also documents such as border protocols and maps that specify the direction and boundaries of borders, which, like border treaties, have the same legal force. A map itself does not constitute sovereignty, but it often has a clear border, as evidence, it has a strong force, it is the exact embodiment of national will and state behavior (Jayakumar and Koh, 2009). In addition, the letters and documents of the official views on disputed territories in different periods of time also have similar legal effects as treaties and maps, and attention should be paid to the collection of such information (Jayakumar and Koh, 2009).
2.4.2 Continued protests against the occupied territories
When conditions for actual control do not exist, there is a need for timely, resolute, open and continuous protest against conduct of occupation of territories (Wu, 2013). Otherwise, it may be because of the absence of a response that makes the sovereignty be transferred to harm national interests. The transfer of sovereignty may be carried out by agreement between two states, which may be in the form of a treaty or may be implied by the acts of the two states. If a owner of right does not make a clear response to sovereign rights behavior of the other party, then the territorial sovereignty is likely to be considered as having been transferred, because the absence of reaction is tantamount to acquiescence, and the default can be regarded as the recognition of unilateral acts of the other party (Wu, 2013).
2.4.3 Strengthen effective control
In earlier international cases, individual acts can represent sovereignty acts, and in recent judicial precedent, the international court emphasizes that if individual acts are not carried out in the name of government, they are private and do not have a legislative or regulatory character, which can not be identified as "effective occupation" and can not constitute a basis for claims (Jayakumar and Koh, 2009). Therefore, if governments want their claims to be supported, they need to pay attention to determining their own effective control of the disputed territory through government action, such as encouraging migrants, establishing public facilities, etc.
2.4.4. Discontinue dispute and develop jointly
The South China Sea issue is a complex territorial dispute, the interests involved is too large, it is difficult to solve by international law within a short time, if the countries only consider their own interests to take tough measures to raise the dispute, it is likely to lead to war, which is unfortunate for world peace and for the parties concerned. Thus the parties should communicate more and try to find a more peaceful way to solve the problem, the Chinese government put forward the suggestion of discontinuing dispute to pursue joint development may be a win-win method (Encomienda, 2013; Wu, 2013).
3.0 Conclusion
The South China Sea is rich in natural resources, it is an important transportation hub and has strategic importance. Each country has its own claims on the sovereignty of the South China Sea from the perspective of their own interests. China’s claims are based on discovery, preemption, and estoppel. Other countries’ claims are mainly based on the principle of proximity and effective control. These countries have rationality in their claims, but there are also flaws, they want to protect their rights through legal means, which requires them to strengthen the collection of key evidence, to strengthen effective control to support their own claims. The South China Sea issue is a complex territorial dispute, it is difficult to solve the issue within a short period of time through international law, the state parties involved should communicate with each other more, trying to find a more peaceful way to solve the problem.
References
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Coalter, L. G. (2008). Sovereignty over Pedra Branca / Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore). Singapore Year Book of International Law.
Delisle, J. (2012). Troubled Waters: China's Claims and the South China Sea. Orbis, 56(4), 608-642.
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