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Territoriality

Toward a New Framework for Peaceful Settlement of China's Territorial and Boundary Disputes by Junwu Pan (Brill) 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 inter-national 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 is a promising young scholars specializing in China's territorial and boundary issues.

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 mecha-nisms 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 chap-ter, 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 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 con-sultations, 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 conflict-ing 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 dif-ferent claims made by the disputing parties. The study into the ICJ cases provides

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 ofTaiwan'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.)" and the 1985 Continental ShelfCase (Libyan v. Malta),41 and States' practice sug-

gest 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

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. Politi-cal 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 Sino-Indian 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 Chi-nese 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 modi-fication 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 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 com-promises 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.

 

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