The South China Sea Issue In The Vision Of International Law

The South China Sea dispute has continued for nearly forty years from the seventies of last century. This issue is very important for China and the countries around the South China Sea because it not only has an effect on all these countries's fundamental interest but also has an effect on peace and stability in Southeast Asia. The South China Sea dispute essentially consists of two aspects: on the one hand, it is about the South China Sea Islands territorial sovereignty issue, on the other hand, it is about the waters demarcation of the South China Sea. As the South China Sea issue related to interest of seven parties and is very complex, so this paper only analyzes the dispute of the South China Sea Islands territorial sovereignty among China, Philippines and Vietnam from legal and historical point of view and demonstrates that China has territorial sovereignty over the South China Sea Islands. At the same time, the paper analyzes the several ways to solve the South China Sea issue. The paper is divided into five sections:The first part is an overview of the South China Sea issue. Firstly, it introduces the status quo of dispute islands in the South China Sea. The islands in the South China Sea can be divided into four different islands groups: Pratas, Macclesfied Bank, Paracel and Spratly. Pratas, Macclesfied Bank and Paracel are under our control. There is territorial dispute between China and Vietnam over the Paracel and Spratly islands. At the same time, there is territorial dispute between China and Philippines over some reefs in the Spratly islands. Therefore, it is not difficult to see that the dispute over Spratly islands is the most complex one. Currently, Vietnam occupies 29 islands, Philippines occupies 9 islands, and China also holds only 9 islands. Secondly, it analyzes the reason why states around the South China Sea contest territorial sovereignty over the South China Sea Islands. There are two reasons why these states fight for the territorial sovereignty over the South China Sea Islands: First, economic factor. The South China Sea Islands have vast of deposits of guano, phosphate and other natural resources. These resources have high medical value; the South China Sea has rich fisheries resources which can be provided for fishermen; the most important thing is that a lot of oil and gas resources are buried in the South China Sea seafloor. Second, the strategic factor. Whether in peace time or war time, the South China Sea region is one of the greatest strategic place. Thirdly, it summarizes Vietnam and Philippines's claims to territorial sovereignty dispute over Paracel and Spratly Islands. Finally, it predicts the future trends of the South China Sea issue. The task of this section is to specify that territorial sovereignty dispute mainly focuses on Paracel and Spratly islands. The essence of the dispute over sovereignty is fighting for energy and strategic interest.The second part analyzes that whether China has Paracel and Spratly islands territorial sovereignty combined with the historical materials from the standpoint of international law. It is based on two principles of international law: the principle of effective occupation and the principle of estoppel. As international law scholars have different understanding of the principle of effective occupation, so the author summarizes the judgments of International Court and arbitration awards of International Court of Arbitration and proposes my own understanding of the principle of effective occupation. The principle of effective occupation does not in"actual possession"as an essential element. The validity of judgment should be combined with specific time, place and many other factors, but the declaration and the exercise of sovereign activities at least meet the following requirements:"peaceful, practical, substantial and sustained". The choice of critical date has a greater impact on the principle of effective occupation. As a very important principle of international law, estoppel means that once states make statements and do any acts with legal meanings based on the principle of good faith and principle of consistency in international relationship, they cannot make other countries suffer damage. The principle of estoppel is not the source of right in itself, but it is a very important role in evidence. Then based on the principle of effective occupation and the principle of estoppel, it fully demonstrates that China has Paracel and Spratly islands territorial sovereignty and this is consistent with the requirements of international law.The third part analyzes arguments in international law which are proposed by Vietnam and Philippines. Vietnam claims that it has territorial sovereignty over Paracel and Spratly islands based on occupation and the theory of state succession; Philippines claims that it has territorial sovereignty over some of the reefs in Spratly islands based on"in its exclusive economic zone", principle of proximity, occupation and prescription .Author analyzes whether those arguments can make any support from international law in order to determine whether they can really have Paracel and Spratly islands territorial sovereignty.The fourth part analyzes several possible ways of solving the South China Sea dispute. China is skilled at using political means in solving international dispute in order to achieve"common ground". China maybe solves the South China Sea dispute through negotiation. But in the course of negotiation, China must beware of the United States, Japan and ASEAN forming a united front and must stop forming"Nansha Group". Currently, China has rejected the compulsory jurisdiction of the International Court of Justice, so now the judicial settlement of the South China Sea dispute is not yet feasible. However, China still need study feasibility on the judicial settlement in order to find the right time in the future and submit the South China Sea dispute to International Court of Justice. Although the use of force to settle international dispute is prohibited by international law, but it dose not exclude the exercise of legitimate self-defense. Currently, the South China Sea dispute still may cause local conflict, so it can not exclude the possibility of using force to solve the South China Sea dispute at last.The fifth part is the paper's conclusion. Author hopes China and the countries around the South China Sea be able to find the best way to solve the South China Sea dispute in order to maximize the interest of all parties and pay their the greatest patience and sincerity for solving dispute peacefully and constructively.