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美國本科法學essay:從國際法角度探討南海問題

時間:2019-04-01 14:01來源:未知 作者:anne 點擊:
導讀:本文是是美國本科法律專業留學生的一篇essay,基本從以下這些角度分析了中國海南問題-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 d
導讀:本文是是美國本科法律專業留學生的一篇essay,基本從以下這些角度分析了中國海南問題-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介紹
南海位于中國東南方向,面積約356萬平方公里。目前,中國、越南、菲律賓、印度尼西亞、馬來西亞和文萊等六個國家都聲稱對南海珊瑚礁擁有主權(Encomienda,2013年)。由于各國主權主張地區存在較大重疊,導致爭端的存在,由于中國在該地區國家中擁有最強的綜合國力,該地區的爭端主要表現為中國與其他國家之間的領土爭端。爭議的存在對地區、有關各方和世界的和平與發展構成威脅,因此有必要了解爭議存在的原因,探討解決爭議的途徑。本文首先介紹了南海的利益,然后分析了中國和其他國家對南海主權主張的國際法依據。隨后又提出了其他國際爭端解決案例。最后,建議各國如何利用法律手段維護主權,和平解決南海爭端。
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主體
2.1 Interests of the South China Sea南海利益
2.1.1 Rich natural resources豐富的自然資源
西南海域海底資源十分豐富,特別是巨大的石油天然氣儲量。數據顯示,南海擁有200多個油氣結構,約180個油氣田,相當于全球儲量的12%,被稱為“第二波斯灣”。而南海海底天然氣儲量為15萬億立方米。南沙是一個分布最廣的珊瑚礁的大型熱帶漁場,擁有豐富的漁業和旅游資源(吳,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).


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