GSTF International Journal of Law and Social Sciences (JLSS) Vol.3 No.1, October 2013

Solution of Territory Dispute and Effective Control Principle The Perspective of China and its Neighboring Countries Liu Zhengquan1 Liang Meirong2 (1. Party School of Dazhou Municipal Committee of CPC, Dazhou City,635000, Sichuan Province, China 2.Hunan Normal University, Changsha City, 410000, Hunan Province, China) Abstract- In recent years due to the crucial location and also the snatching of important national resources such as oil and gas from the sea bottom, disputes about territories between countries rise constantly, such as disputes from those islands in South China Sea, conflicts disputes for Diaoyu Island between China and Japan, the belonging of Dokdo Island for Korea (Takeshimar for Japan) which have already become a typical but tough issue to solve. The Effective Control Principle, as a international principle for solving disputes, is becoming more and more popular and adaptable in the judicial practice of Hague International Court of Justice. Whereas the concept of effective control principle become another tricky issue, as a prior-definition, to challenge the International Court of Justice. How to make a clear concept of effective control, and finding a better way to solve the territory dispute, acceptable for all concerned parties is still beyond the expectation of the world people. Keywords: Territory Principle; Solution

Dispute;

Effective

islands and the maritime demarcation as the core of the South China Sea disputes, which has been intertwined with issues of strategic resource grabbing and geopolitical security, increasingly complexing and intensing the local situation. Up to today, due to the continuous expansion of interests requirements of demands of sovereignty of the neighboring countries in the South China Sea, many conflicts arise from the overlaping of advocating exclusive economic zone and continental shelves. Maritime rights and interests, as the core of the competition continue to magnify as well as the US-led trends interfere in this issue, making the peace and stability of the South China Sea region face more and more challenges. The principle, “the ownership belonging to me, putting aside disputes and jointly develop” proposed by China in the 1970s, encounters severe damages currently, although which has been exerting great function in the communication and consultation for the establishment of the mechanisms of the South China Sea issue with its neighboring countries and in the process of signature of the Declaration on the Conduct of Parties in the South China Sea with ASEAN countries, for actively promoting carrying out Nanhai pragmatic cooperation. With China's rapid economic development and the rapid rise, it will play a more and more important role in building new orders in the locality and the world. The short supply and imbalance of allocation of natural resources within the worldwide range, make the South China Sea facing very sharp situation because of its rich oil and gas resources and its offshore location, which has increasingly become the focus of the national competition. Neighboring countries continuously create dispute issues in an attempt to reallocate the areas in the South China Sea increasingly up to international scale, to be more complex in the hope of resulting in ultimate seeking international judicial process, to obtain “legalization" of the socalled disputed lands, islands or waters, which although has been vested in the sovereign interests of China based on Chinese protestation and official statements. In the theory of international law, international disputes, generally can be divided into

Control

I.

When and How Territory Disputes Occurred around South China Sea Generally speaking, territory disputes occurred since the end of 1970s of last century, especially in the year 1982 the United Nations Convention on the Law of the Sea gives coastal countries the jurisdiction of 200-nautical-mile exclusive economic zone and continental shelf. And then the neighboring countries around the South China Sea started claiming their 200nautical-mile exclusive economic zone and continental shelf based on the Convention accordingly one after another, advocating their range extending to many islands such as Nansha Islands and adjacent waters which is always claimed as Chinese territory by China, in the form of violating Chinese territorial sovereignty. Due to these claims in the formation of a large area of overlapping Chinese jurisdiction of waters and islands in South China Sea, which causes very deep protestation from China, and a new round of competition in arguing the land ownership and boundaries is inevitable. Since the 1990s, ownership of the Nansha

DOI: 10.5176/2251-2853_3.1.136

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four categories of legal disputes, political disputes, dispute of facts and mixed dispute, based on their different causes and nature. [1] The territory disputes between China and its neighboring countries, including the disputes of Diaoyu Islands and the disputes of the South China Sea islands is belonging to disputes of facts. Such international dispute is caused due to some particular facts and the truth of certain circumstances to the relevant parties who persist in different or opposite opinions. In view of the territorial issue is always connected with a country's sovereignty, which is a very radical issue. Generally if the concerned parties fail to reach an agreement to resolve their disputes after repeated political negotiations, either will appeal to the International Court of Justice in research of a settlement, which has become an important judicial way. Although the International Court of Justice is not a supra-national legislative body, it will utmostly promote the development of international rule of law and the formation of customary international law in theory by its practice in judicial process. Meanwhile, the applicable international legal principles adopted by International Court of Justice in resolving territorial disputes has provided references for many countries and regions of the world and being put into related practice internationally. The establishment of Sansha Municipality on the South China Sea islands made by China’s government some months ago shows such practice implemented in some extent based on the principle of “effective control” which has been adopted by the International Court of Justice in some cases of territorial disputes. ① China has always kept claiming that it has the right to exercise sovereignty whether in accordance with the traditional international preemption principle or in accordance with “effective control”, the principle of modern international law. By functioning international judicial theory, it strengthens and reflectes the firm position for China for further possible settlement, whether politically or judicially. Although as a matter of fact, China has not fully obtained effective controls over all the islands in the South China Sea islands. ②However, there can be no doubt that Chinese government has introduced a powerful administrative jurisdiction

measure for the exercise of sovereign rights, and also for further providing legal and de facto basis in subsequent international judicial level. II. General Idea of Effective Control Principle In international law theory, effective control is a concept evoluted from effective occupation which was the principle for the settlement of disputes of the colony belongings in colonial time,which has become a principle applicated by the International Court of Justice for solving the international territorial disputes currently as time goes on. In the judicial practice of settlement of international territorial disputes,the International Court of Justice generally uses a three-step judgment rule. That is, the mutual treaty is in top priority, then maintaining possession will be considered, and lastly effective control is applicated,[2]which means the territory will belong to the one whoever in fact take more effective control of the territory should exert the right of jurisdiction. In the case of disputes of Pedra Branca,Middle Rocks and South Ledge,between Singapore and Malaysia in the year 2008, the International Court of Justice adopted effective control principle as this right acquisition basis, which weakened the original rights of the concerned party and highlighted the effectiveness power of the effective control theory in the international territory disputes. And then the effective control theory has gradually become the legal basis of international law in territorial disputes, as a major principle. See from the literal meaning of the principle of effective control,it refers that the court will award the disputed territory to the party who has ruled relatively more effectively after weighing the evidence of governing provided by the concerned parties. [3] The principle of effective control is evolved from judicial practice. The Court will first consider whether the disputed territory has its rightful owner before dispute such as owned through treaties, preoccupation and national inheritance,etc. If there exists a legal owner, it will be no need to consider effective control; if there is no explicit legal owner, the disputed territory will be awarded to the party who has taken more effective control according to the principle of effective control. Seeing from the combination of judicial practice,the principle of effective control should have two elements,that is, willingness of implementation of control subjectively and act of implementation of control objectively.[4] Effective control should be continuous and peaceful.Effective control should be also in a full control. Effective control should be acts of the government. The behavior of private bodies, such as fishermen, does not belong to the acts of a government. And lastly the act of the government to show the effect control should be open, in a quite long time peacefully.The time and control power will become the most important two factors being considered by the

①

See the website:http://baike.baidu.com/view/8840390.htm. Sansha Municipality is setup in Yongxing Island, belonging to Xisha Islands, Hainan Province, as the southest, tyoungest and smallest municipality with largest controlling area in China.

②

The current situation is as follows: Xisha Islands and Zhongsha Islands(excl. Huangyan Island) are fully controlled by the People’s republic of China; and Dongsha Islands are controlled by Tanwan, China. The situation in South China is most complicated. There are 3 countries who actually controlled those islands, among which 29 controlled by Vietnam, 9 by Philippines,10 by Malaysia, and 1 by Taiwan, China. And there are several countries, incl. Vietnam, Philippines, Malaysia, Indonesia, who claims sovereignty over Nansha Islands.

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International Court of Justice. The South China Sea is an important international sea lane, obtaining geostrategic advantage for China, which is a crucial part for U.S. in its global strategy, Japanese maritime protection lifeline, Vietnam's natural barrier and also India’s path into the Pacific Ocean during recent years, and it is just like a dagger facing the Philippines.[5]Just due to the location of international importance of the South China sea with its islands and waters, after the United Nations Convention on the Law of the Sea in the year 1982, all the neighboring countries around China started snatching it or part of it by searching excuses, in an attempt to achieve its goal as time delays by using "effective control" which has been adopted by the International Law Court. ①As we all know that Philippines sued China to the International Law Court recently.②

appear or disappear with the ebb and flow, which is impossible for human beings to live. China's sovereign over the South China Sea has long been proved with no protestation in history up to the year 1982, the start of the United Nations Convention. No country claim thee sovereignty over the islands and waters in South China Sea. China just need to prove the fact. The historical fact was widely recognized in international conferences by concerned government with no different voices of claims. It is no need to prove that China has always been in its exercise of sovereignty, so this occupation should also be considered to be effective. 2.Effect control has become international awarding basis in territory disputes Nowadays the judicial international practice shows that effective control has become an important basis in awarding territorial dispute cases. The party who has already a more effective control over the disputed area would mostly obtain the sovereignty. Before the complicated and even conflicting historical evidence, the practice of the International Court of Justice intends to avoid the concerned country into the twist of those vague historical evidence, by making a peaceful settlement of territorial disputes in a reasonable period with effective control principle. The awarding of the International Court of Justice plays an important role in the formation of customary international law. Some cases are as follows. 1.In the case of the United Kingdom v. France for the belonging of Minquiers and Ecrehos in 1953, the International Court of Justice found that there were various agreements of intricacies of power signed by Britain and France in this period before the year 1648 and it was too difficult and impossible to conclude which of these agreement is on priority, which is strong and which is weak. Lastly, the International Court of Justice held that the United Kingdom took a more effective control over those concerned islands than France, and judged that the United Kingdom, other than France as a result, obtained the sovereignty of the disputed islands after the checking and confirmation of the administrative, judicial and legislative acts of the United Kingdom since 19th century, and the growth and decline of the controlling powers of the two countries in the disputed area. 2.In the case of El Salvador v. Honduras border in 1986,the concerned two parties requested the International Court of Justice made a judgment for the Sovereignty over some islands in the Gulf of Fonseca Bay. In 1821,El Salvador and Guatemala both obtained independence from Spain, and the boundary dispute between El Salvador and Honduras also originated from that time before independence. After analysis of the control of the two countries in colonial period, the International

III. Evolution of Settlement of Territorial Disputes 1.Traditional international judicial practice applied the principle of preempting In traditional international judicial practice, it is the principle of preempting that is used for the application of awarding territory belonging, especially for the sparsely populated or uninhabited areas. In the preempting period of one country, if no other country claims any protestation or objection, it would mean that the preempting status is sufficient and effective, and acceptable by other countries, which is also confirmed and proved that the country's exercise of its occupation of the area administration and sovereignty is fully effective. In the case of sovereignty litigation of East Greenland, Denmark v. Greenland, the final judgment made by the Permanent Court of International Law Court, awarded that Denmark won the lawsuit, filed July 10, 1931.The court held that the preempting of Greenland by Denmark before Norway’s invasion is effective. It is needless for Danish Government to prove its occupation of Greenland is full and effective in entire period of the sovereignty or the Danish sovereignty of Greenland already existed long time ago, even if the documents submitted to the court may be considered insufficient to prove ［ ］ such existence of the sovereignty. 6 since for a long period in history, no country including Norway claim the sovereignty belong of Greenland, and not any objection or protestation was raised. In the numerous islands of South China Sea, many of the island or even just some coral reefs ①

Actually among all the issues of the South China Sea the most intense issue is the snatching for natural resources. ② See website: http://news.qq.com/a/20130122/001924.htm

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Court of Justice made a final judgment based on effective control principle afterwards. The Court based on effective control theory. We can infer through these cases that based on international practice the ownership of some areas in history might lose its lawful position of sovereignty as time goes on if it is not effectively control.

evidence to support The application of the principle of effective control in international judicial practice, eliminates the right of the original acquisition of territories to a certain extent. To confirm the ownership of territory by whether more effective controlling acts or management has been taken creates new excuse for some countries to invade sovereignty of other countries through “de facto effective control ". Faced with the reality of the international situation in South China Sea, China takes more measures to change the passive situation, in the form of national legislation and public law enforcement, implementing specific administration on behalf of the government, to deal with the disputes in China's inherent territory, which should not have been a controversial case. This is really an upset issue to China. Since joined the International Convention on the Law of the Sea, it is necessary to take practice based on the application of the relevant provisions of international law and practice international commitments to defend their sovereignty.① To one country, if there are clear, effective and sufficient historical evidences confirmed by the International Court of Justice, showing its ownership with the subsequent effective occupation acts, it can prove this country is qualified for the original right, which is also sufficient to maintain the country's territorial integrity and sovereignty. To find very strong and detailed evidence is always the key to win in the disputes whether to submit the dispute to the International Tribunal for the Law of the Sea or the International Court of Justice for trial. Making detailed research and full preparation for evidence, actively explore solutions, try to collect favorable facts will be the radical way for the settlement of territory disputes whether to submit to a third party or to make it solved through international judicial approach. To the islands and waters in the South China Sea, Chinese goverment always maintain that China owes the indisputable sovereignty based on the fact in history. China always says that some neighboring countries neglect the history facts in a attempt to occupy other countries’ existing sovereignty by invading or illegle obtaining of controlling in the situation of international lack of natural resources.

IV. Problems Caused by Effective Control Principle Safeguarding the world peace, and promoting common development has become the two themes of the world today. In order to maintain the political stability and unification domestically and internationally, Chinese government always maintain solving international disputes through peaceful negotiation and political ways. For the South China Sea problem, China has been keeping a principle of "sovereignty belonging to me, putting aside disputes, and developing together" in solving the territory issues. As the concern inserted by big powers and ASEAN countries, making a more complicated situation around China and its neighboring countries for the solution of the issue in the South China Sea, which has also made such an issue into a predicament as the constant temperature increases gradually.[7] 1. "Inherent Territory in History" theory has been in the dellima Due to unclear evidences and complicated cases occurred in history which is so difficult to make sure and restore the truth, "inherent territory in history" theory has also been made in the dilemma in settling the increasingly complex international territorial disputes. Therefore, collecting sufficient and full evidences for proving the sovereignty in history is utmost. If both of the concerned parties show evidences to prove sovereignty with history facts which will unavoidable cause more difficulties for the International Court of Justice to confirm and restore the real history situation in disputed territory cases. How to prove the rights are inherited, which is always the key for proving the sovereignty. Whether exercise full and smooth control to the controversial territory may be a very strong evidence for the government to claim it’s the sovereignty. Just like in the case of Diaoyu Islands, China all the time keep claiming the sovereignty over these islands with many history evidences, But Japan, in the face of the Diaoyu Islands, is also always claiming, whether in the history or in the international law practice, it is very clear that Japan own the sovereignty, and more, Japan actually control these islands. They will continue to conduct warning and surveillance to Diaoyu Island under the effective control principle.

3．Abuse of Effective Control Exacerbate Territorial Disputes The recent cases of International Court of Justice shows that, in the event of disputes occur between two countries on the sovereignty, the international law court will be apt to hold that the country who already take more effective control over it to win the lawsuit. What is important for concerned countries to take notice which will be a rule to ①

2.

"Indisputable

sovereignty"

need

The neighboring countries arround South China Sea claims sovereignty rights mainly based on extension rules of land shelf in the Internaional Ocean Law.

more

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observe, but also awful to those concerned countries is that, when one country in the dispute remains silent for some kind event which usually requires an explicit response to the opposite country to show its situation of protestation or objection, if the concerned country does not do that, is may be resulted in acquiescence of the claim of the other concerned country.[8]This type of acquiescence will not generate legal rights on the non-disputed land, but merely a further proof to the occupation of the land. Whereas to the occupation of the land with ownership, the acquiescence of the concerned party may be the ground causing the transferring of sovereignty of right.[9] In contemporary judicial practice, in the event of a dispute occurs between the two countries for the sovereignty over the islands, the one who has taken more effective control will be the party who get the sovereignty, even though the ownership of the land has already been determined. “Continuous and peaceful display of sovereignty rights can be prior to the confirmed right before." [10] Too much relay on the effective control principle during the trial and awarding in the judicial practice by the International Court of Justice, also cause a adverse effect, that is the exacerbation of this principle in international circumstances, by those countries in territorial disputes or even some countries will make controversial event to create “long-time control” as a fact, in a attempt to result in obtaining territory through “international legal approach” . By this, it is a certainty that the application has gone to one extreme. Such as in the local cases of Dokdo (or called Takeshima) dispute between Japan and South Korea, the “Four Northern Islands” dispute between Japan and Russia, as the situation goes more and more internationalization, it is also getting more and more complicated to solve, and even worse than before based on current effective control theory. In some cases, some countries, in order to obtain the evidence for effective control, take so-called manifestation of national sovereignty activities through domestic legislation to turn other country’s inherent territory into its own territory. Undoubtedly, this is not conducive to the peaceful settlement of the territorial dispute for the parties, which will also shaken the international political order and do harm to the stability of world peace.

result would be favorite in the one which has take very effective control over the controversial areas in a official way. The standard of official ways is based on the international laws. Meanwhile, When one concerned country is taking new actions or measures in territorial disputes, the other country should show protestation, taking appropriate actions or counter-measures accordingly. So China is taking its actions and counter-measures for the controversial areas such as Diaoyu Islands and those islands in South China Sea, to show its sovereignty over these disputed areas in a positive way. [11] Currently, snatching for natural resources between countries, caused by international economic crisis is becoming increasingly and intense. As to the South China Sea issue, China has always been claiming that it is Chinese inherent territory, opposing to be submitted to the International Court of justice for judicial settlement. In the eye of Chinese government, the South China Sea is supposed to be with no sovereignty disputes, which is a existing fact proved by Chinese history. However, in the increasingly complicated international situation, even for the sovereignty territory with no disputes in the very beginning, the implementation should also be taken based on effective control. It is with no doubt that Chinese government sets up Sansha Municipanity is the response to the issue that Vietnamese government attempted to claim the sovereignty in the South China Sea through domestic action and legislation. This is a manifestation of the Chinese government's exercise of sovereignty. ①Although some scholars in China maintain that the South China Sea issue is not applicable for effective control principle in international judicial practice, which is even not a international judicial case. ②However, for a country, a little carelessness or lack of attention to its territory, it might cause loss of territory due to failing implementation of exercising effective control. Silence may cause a outcome of admission. Just like the settlement made by the International Court of justice, in the case of White Rock between the Singapore and Malaysia in the year 2008. Strengthen the government measures, pay close attention on how the international principle is applied for resolving territorial and boundary disputes through study on the relevant judicial precedents awarded by International Court of

V.

Conclusion Currently, effective control concept has already become a very important principle for the settlement of territory dispute. How to make a clear concept of effective control, and finding a better way to solve the territory disputes in a mutual acceptable way for all the concerned states, is still very expectful to all the world people. The latest cases from the International Court of Justice express that as to the territory disputes between one country and its neighbouring country, whatever, the

①

On June 21,2012, The Vietnam enacted Ocean Law of Vietnam, which makes the Xisha Islands and Nasha Islands incl.within its controlling territory.Details. See website: http://blog.huanqiu.com/shaoxufeng/2012-06-22/2543685/

②

See Sun Chuanxiang, Application of Effective Control Theory in International Court of Justice and Counter-measures of China，Pingdingshan College Journal,Vol.23(06),December,2008.

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University Press,1963:28. [10] Shaw, Malcolm N. International Law(5th)[M].Beijing: Beijing University Press, 2005:33 [11] Ye Jianfa, Chen Xi. See islands Sovereignty Theory Changing and Latest Development from Cases in International Law[J].Shandong Economic Management Institute of Technology,2010(06):110.

Justice.It is no doubt that provision of sufficient legal supports will be very useful for consolidating and maintaining China's sovereignty over the inherent territory. Economic development and creating or winning a peaceful domestic and international political environment is imperative, but the cost can not be at the expense of sovereignty of a country. Sovereignty is with both political and legal attribute. The legal attribute is based on the premise of the political attribute. Thus, the nature of the legal attribute is for the political attribute. Whereas the legal attribute is independent of political attribute especially in international judicial practice. The losing party in the international judicial practice must stand the international legal responsibility. The failure of the country in the international legal practice will inevitably lead to the isolation politically.Therefore, in terms of international law, it is necessary for the contry to safeguard its sovereignty, with a clear-cut political angle, and it is also necessary to be well-founded to act in accordance with the principle of international law which is conducive to the formation of the national political practice and diplomatic smooth situation, and also conducive to the stability of the international situation.

First A. Author Liu Zhengquan (Donald Liu for English name， M’76–SM’81–F’87), male, born in Qingdao, June 14th, 1976， Obtained Judis Master in the field of International Law in Shandong University of Science in Qingdao, China and Technoloty from 2010-2013, He is working as a LECTURER in the School of Dazhou Municipal Committee of CPC in Sichuan Province of China, also a lawyer of Shandong Kangyuan Law Firm of Qingdao City in Shandong Province of China, has worked in different positions with rich experiences, including laws, economics, accountings, factory manaments, and goods export, etc.. He has published many papers such as the following, etc.

REFERENCES [1] Shao Jin.International law[M]. Beijing: Beijing University Press. V.2000:368. [2] Zhang Weibin.On the Triple Classification Judgment of the Rules of International Court of Justice [J],World Economics and Politics,2011(05):77-93. [3] Li Hua. on Effective Control Principle for Resolving Territorial Disputes [J].Hetian Normal College, 2006(03):43-44. [4] Qu Bo.The Application of Effective Control in Island Disputes Resolution[J]. Contemporary jurisprudence, 2010(01):148-149. [5] Gong Jianhua. Causes,Reality and Inherent Characteristics of the South China Sea issue[J].Exploration and Free Views,2010(02):146. [6] Li Yuan. See China’s Sovereignty over Nansha Islands from "Preemption"[J].Northern Law,2007(03):130. [7] Cai Gaoqiang,Gaoyang.On the Path of international law to Resolve the South China Sea disputes[J] Xiangtan University Journal(Philosophy and Social Sciences),2011(03):38. [8] Huang Deming,Huang Yunqin. See Effective Control Territories through the Case of Pedra Branca principle[J].Jinan University (Philosophy and Social Sciences), 2009 (5):36-37. [9] Jennings,R. Y.The Acquisition of Territory in International Law [M]. Manchester: Manchester

1）《Puzzledom of Law Application of Foreignconcerned Agengies in Chian，published in Jinhua School Journal，2013,Vol.2； 2）Study on Disputes Settlement Mechanism of WTO，published in Lanzhou Journal (CSSCI)，2013,Vol.2； 3）Impact of Publication Opition from Networks on Judicial Trials, published the Current News Speading(CSSCI)，2013,Vol.2 His current research and fields of interest are International Law and Criminal Law. Mr. Liu is also the member of “Lawyer Association of All China”. Contact Detail: Donald(Liu Zhengquan), Mobile: 18780860335 QQ:2671265166 Email: [email protected]

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