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ON THE ISSUE OF THE APPLICATION OF THE NORMS OF INTERNATIONAL LAW IN THE EVENT OF DISPUTES ON THE DELIMITATION OF STATE BORDERS
S.B. Kozhirova Head of the Center for Chinese and Asian Studies of the International Scientific complex "Astana" Sbako@yandex.kz
A.E. Ibrayeva
Dean of the Higher School of Social Sciences and Humanities of Astana International University aigerimibrayeva7@gmail.com
А.M. Satbayeva. Kazakh National Agrarian Research University sathaeva@mail.ru
The topic of issues related to the legal provision of State borders is complex and includes many different aspects. Sometimes they may relate to disputes concerning territorial sovereignty, as well as to the delimitation of territorial seas, continental shelves and exclusive economic zones. The management of cross-border flows of people, goods, services, capital and information; and how to economically and socially support these local regions or isolated islands near borders may well be considered within the framework of border issues. In this article, we will look at some of the ways in which foreign policy experts resolve territorial issues or maritime delimitation issues in the light of international law.
Keywords: territorial sovereignty, delimitation of maritime borders, international law, territorial disputes, external border of the territory, claims, conflict, International Court of Justice, jurisdiction, border barrier, peaceful means, strategic interest.
The causes of territorial disputes lie in different planes. A State has a territory within which it has territorial sovereignty. The border is the external border of the territory on which the State has its territorial sovereignty. These borders often represent areas where the territory of one State meets the territory of another State.
At sea, the situation becomes a little more complicated. The territorial sea extends beyond the territory of the State. According to article 3 of the UN Convention on the Law of the Sea, "each State has the right to set the width of its territorial sea within the limits not exceeding 12 nautical miles counted from the baselines determined in accordance with this Convention" [1]. A State may exercise its territorial
sovereignty over the territorial sea, but with certain restrictions. For example, foreign vessels have the right of peaceful passage. This means that a coastal State should not prevent the passage of foreign vessels within its territorial sea, provided that they do not harm the peace, order or security of the State.
The exclusive economic zone and the continental shelf extend beyond the territorial sea. According to article 57 of the UN Convention on the Law of the Sea, "the exclusive economic zone should not extend beyond 200 nautical miles from the baselines from which the width of the territorial sea is measured," and the coastal State has sovereign rights to explore the continental shelf and exploit its natural resources in the exclusive economic zone (EEZ).
The continental shelf extends from the territorial baseline to a limit of 200 nautical miles, but where there is a natural extension of the shelf, a coastal State may extend its outer boundary beyond 200 miles in accordance with article 76 of the UN Convention on the Law of the Sea. In this case, the continental shelf may extend for 350 miles or even more. The coastal State has sovereign rights to the continental shelf for the purpose of exploration and exploitation of its natural resources.
If the territorial waters of the two States overlap, the median line becomes the line of delimitation, unless otherwise agreed by the two States. In the case of the intersection of the EEZ and the continental shelf, "the delimitation is carried out by agreement on the basis of international law, as specified in article 38 of the Statute of the International Court of Justice, in order to achieve a fair solution."
c) Using the same analogy, if two States declare their territorial sovereignty over the same territory on land, the question of territorial delimitation arises. The following factual elements in territorial issues can be distinguished:
- First, the change in the occupation forces in the territory in question. For example, the area used to be occupied by State A, but then it was occupied by State B. (In some cases, this area was actually terra nullius, but State A claims that it controlled it)
- The occupying State (State B) includes the area in its territory.
- State A continues to assert its territorial sovereignty over the Territory in question, denying the legitimacy of State B's claims.
d) Territorial issues usually arise when:
- in an armed conflict, State B occupies the territory and does not leave it;
- the area was transferred by State A to State B under the treaty, State A questioned the validity of the treaty;
- The treaty provides for the transfer of territory by State A to State B, and State A asserts that the territory in question is not part of the territory to be transferred.
In any of these cases, it is extremely important for State A to maintain its claim. If State A renounces its claim to the area, there will be no more territorial disputes in accordance with the provisions of international law.
Types of formulas available for the settlement of territorial or maritime delimitation disputes.
e) Each dispute has its own character and there is no universal solution. However, we can divide solution models into the following four categories:
The first formula is to draw the border. In this scenario, we can clearly define the limits of the sovereignty or jurisdiction of State A and State B. The line drawn as the border often indicates which concession each State has made. Once the border line is drawn, the States will no longer have overlapping territories, and they will be able to enjoy legal stability in the region. The International Court of Justice in one of the decisions established: "As a general rule, when two countries establish a border between themselves, one of the primary tasks is to achieve stability and finality" [2]. A striking example is the process of delimitation of the border between Russia and China, which was finally completed in 2004.
The second formula is to cover the disputed area with an intermediate zone. Within the zone, State A and State B coordinate the exercise of their jurisdiction. In many cases, the two States agree that modus vivendi does not prejudice every relevant legal position.
Good examples of this formula are the intermediate fishing zones established in accordance with the 1999 fisheries agreement between Japan and the Republic of Korea. The fisheries agreement between Japan and the Republic of Korea established a large intermediate zone in the Sea of Japan, within which vessels are under the jurisdiction of their national flag, and the two countries cooperate with each other in the field of conservation of living resources. Both States tried to draw a single line of demarcation, but due to the territorial issue in the Sea of Japan, they were unsuccessful. The existence of disputed islands in the center of the overlapping territory has led to different interpretations by both countries of where to draw the line of delimitation. After difficult negotiations, the two countries agreed to establish a territory for joint management in such a way as to cover the disputed territory. A similar zone was created in accordance with the Japan-China Fisheries Agreement of 2000 due to different points of view on the principles of maritime delimitation.
In another set of examples of this formula, the 1855 Treaty on Trade and Navigation between Japan and Russia stipulated that the borders of Sakhalin remain open so that the peoples of the two countries could live together. The New Hebrides were jointly administered by Great Britain and France under the terms of the 1906 treaty and jointly administered by the two authorities until they became independent as Vanuatu in 1980. Under this regime, which is often referred to as a "condominium", British and French citizens were usually subject to their respective national administrations. Third-country nationals had to choose the legal system and, consequently, the administration applicable to the nationals of any of the signatories. In practice, the British and French Resident Commissioners, representing the respective High Commissioners and acting jointly, constituted the condominium Government.
The advantage of this formula is that it represents a compromise between the two States. The management of this intermediate zone is a complex administrative issue and should be the subject of an agreement between the two States. This formula is more applicable at sea than on land.
The third formula is to reduce the role of the existing border barrier. The role of the border is to control the flow of people, goods, services, capital and information between States. If the states agree to liberalize these flows, then the border will no longer play a big role. Borders within the EU are practically abolished in terms of economic activity. Once inside the Schengen area created by 25 European countries, you can move freely without checking your passport at the border control of each individual state.
Cross-Strait relations between mainland China and Taiwan are not territorial issues, but several attempts have been made to reduce the barrier by removing restrictions on direct trade and even concluding a free trade agreement.
These two simple examples show that the globalization of the economy has made borders almost meaningless. However, the role of globalization has a limit. It is true that this third formula would be effective for reducing tension in the border zone, but this method alone cannot lead to a final settlement of the territorial issue, because police and military actions, which are the main components of state administration, still remain within each respective border.
The last formula is to maintain the status quo. Those States that occupy the territory in question usually choose this option and often declare that there is no territorial dispute. They avoid discussion with the other side and sometimes strengthen their occupation of the disputed territory.
It is difficult to say which formula may be relevant to this situation. At least we can note the following:
In cases where State A and State B have different ethnic, cultural and social origins, drawing a single border may be an ideal solution to ensure stability in the region.
In cases where the background of the two states is similar, lowering the border may be a suitable formula.
If natural resources are at the center of the disagreement, covering the territory with a zone may work. In this scenario, there should be a close working relationship between the two States to manage the area, as in the case of the Japan-China fisheries agreement.
However, in most cases, the occupying State tries to maintain the status quo. The settlement of territorial disputes will not move forward if the occupying State does not recognize the dispute. For a State claiming the return of territory, it is extremely important that the other side recognizes the dispute. For example, the Soviet Union for a long time did not recognize the dispute with Japan over the northern territories during the Cold War. In this context, we should note that if a matter is referred to an
international arbitration or tribunal, the role of this body is to decide whether a dispute exists or not.
What methods can we use to settle land disputes or maritime delimitation issues? Here we will deal only with land disputes, the characteristics of which differ from the delimitation of maritime borders.
The basic rule of resolving territorial disputes is that they must be carried out in accordance with international law. International law regulates relations between States, and any dispute between States should, in principle, be resolved in accordance with international law. Today, the use of force or the threat of force to resolve international disputes is outlawed, except in cases where it is permitted by UN Security Council resolutions. Territorial disputes should be resolved peacefully.
Article 33 of the UN Charter provides that "The Parties involved in any dispute, the continuation of which could threaten the maintenance of international peace and security, should first of all try to resolve the dispute through negotiations, investigation, mediation, conciliation, arbitration, judicial proceedings, recourse to regional bodies or agreements, or other peaceful means of their choice" [3]. Whichever of these methods is used, international law is the main criterion for dispute resolution. Therefore, it is important for a State party to present legal arguments that are easier to justify and convince another State party of this within the framework of international law.
Next, we would like to review the main provisions of the relevant norms of international law.
In order for a State to acquire and exercise its territorial sovereignty over a specific territory, the State must occupy it and effectively control it. There are two ways to acquire territory. The first method is a derivative acquisition in which a State cedes territory to another State. These types of acquisitions are usually carried out on the basis of contracts. Subjugation and conquest involving the use of force would fall into this category, but they are not legitimate titles under modern international law, as defined by the UN Security Council when Iraq invaded Kuwait in 1991.
The second way is to occupy terra nullius, a land that is not controlled by any state. In order for a State to acquire sovereignty over such land, it must first occupy it. As soon as the State occupies the land, it must carry out a continuous and peaceful demonstration of State power. This behavior is called act a titre de souverain, and this requirement is called "effective control". If a State wishes to ensure a permanent exercise of power, it must demonstrate the intention and will to act as a sovereign, as well as some actual exercise or demonstration of such power. The required degree of efficiency varies depending on the geographical location, population density and requirements of foreign countries. No man's land does not require the same level of effective control as that which would be necessary for a settlement. Uninhabited small islands of no great economic importance will require limited powers [4]. This point is important when we discuss the legal status of isolated islands. The degree of continuity also varies depending on the situation, and there is no need to monitor every minute. In
the famous arbitration on the island of Palmas, the Permanent Court of Arbitration stated that state power does not necessarily have to manifest itself "at virtually every moment in time at every point of the territory" [5].
In the real world, it is not easy to distinguish between terra nullius and a territory that was previously under the sovereignty of one state, but was declared terra nullius by another state due to the low activity of the first state. In the East Greenland case in 1933, Norway claimed that East Greenland was terra nullius. But the Permanent Court of International Justice stated in its decision: "Denmark should be considered as having demonstrated during this period from 1814 to 1915 its authority over the uncolonized part of the country to the extent sufficient to grant a valid right to sovereignty" [6].
Territorial disputes arise when claims to sovereignty over land are crossed by more than one State. If there are treaties or other legal documents relating to the Territory in question, their interpretation will be a key issue. For example, the Treaty on the Exchange of Sakhalin and the Kuril Islands of 1875, the San Francisco Peace Treaty, the Joint Declaration of Japan and the USSR of 1956.
However, if no interested State has a treaty-based right to the disputed territory, the element of validity will be taken into account. In this context, international courts will be interested in which party has more evidence to substantiate its claim. The voice of a third party can have influence, and that is why third States try to avoid expressing their opinion on territorial issues in which they usually do not want to interfere.
The two participating States involved may agree to put aside their legal arguments and settle the issue politically. Provided that the territory in question belongs to either of the two countries, it is these two countries that should draw the line. However, the strength of each State's position stems from its legal position, and political discussions cannot completely deviate from legal arguments. Therefore, it is extremely important that the participating States ensure their legal consistency before reaching a final settlement. If you recognize the exercise of jurisdiction by the other party, while declaring your sovereignty, your legal position will be undermined.
The behavior of citizens can also have legal consequences. Their behavior is not necessarily attributed to their State, but if they repeatedly submit to the jurisdiction of the other party, this will create an actual situation that is not legally beneficial for their State. Therefore, the state is interested in controlling the behavior of its citizens.
What will motivate States to advance the dispute settlement process? As mentioned above, international law plays a crucial role in resolving territorial disputes, but lawyers cannot solve them on their own. Legal arguments alone are not enough to successfully resolve the dispute. What will motivate States to move forward the dispute settlement process?
Convergence of strategic interests in relation to dispute settlement.
It is important that the two States not only recognize the existence of a territorial issue, but also find strategic interests in its solution. To be more precise, the two States,
and especially the State that occupies the territory in question, should come to the conclusion that the disadvantages resulting from the fact that the dispute remains unresolved clearly and significantly outweigh the benefits that both sides will receive by settling the dispute. The occupying State (State B) will try to change the status quo only when much larger national interests become hostages of the territorial issue.
These larger national interests may be as follows:
- the need for an alliance with another state to counter a third state (for example, China and Russia in relation to the United States since the 1990s and Russia's rapprochement with Japan after the Sino-Japanese normalization in 1972);
- the desire to improve the national security situation by reducing the military threat from another state (for example, recent steps in border negotiations between China and India;
- the desire to implement another big political agenda (for example, to become a member of the UN Security Council);
- the desire to get a huge economic benefit from another state;
- the desire to gain an international reputation as a law-abiding nation.
The desire of leaders to resolve the dispute.
It often happens that the public opinion of one or both interested countries is not happy with the result of the delimitation, which the leaders will present to their peoples after long and difficult negotiations. Territorial issues pose huge problems for the political leaders of any country. A negative public reaction can cost leaders their political lives. If the leaders do not take political risks when considering this issue and do not have the ability and will to convince their people that the deal will meet the long-term national interests of their countries, it is unlikely that the final package will be implemented.
Therefore, it is extremely important that the leaders of the two States have a strong political desire to resolve this issue during their tenure. In this regard, it is worth noting that uncompromising leaders often managed to convince the domestic audience to accept difficult political packages with other countries, as was the case with former US President Richard Nixon, who began a dialogue with the People's Republic of China (although this dialogue did not concern territorial issues). On the other hand, soft-line leaders may make a deal with another country, but the settlement package may face difficulties on the domestic front.
It should also be noted that political will alone is not enough to achieve a settlement of the dispute. This is a necessary but insufficient requirement.
The strong desire of local residents to settle the dispute.
If the territory in question is not a no-man's land or there were not many people earning a living there, the aspirations and interests of local residents, including those who were expatriated, will stimulate their government. However, if the locals are satisfied with the status quo, their government's demand will be taken lightly and the
border will most likely not be moved. Although the desire of local residents alone cannot solve the territorial issue, it can hardly be accepted without their strong support. Maintaining good communication with the residents and understanding their wishes correctly is a big problem for the negotiators.
Each territorial dispute has its own character, so simplification is inappropriate here. However, in many cases, the convergence of strategic interests is of paramount importance, and without this - even with the strong leadership of political leaders or with the strong support of local residents — it is unlikely that things will move forward. We may also notice that without an appropriate strategic environment, political or diplomatic skills will not bring a positive result. It is extremely important for the leaders to find the right time to advance the negotiations by assessing the strategic winds blowing between and around the two states.
Let's look at some important rules that are necessary to comply with when negotiating.
Strengthening mutual trust between political leaders. By concluding a deal, the leaders of the participating States are playing a dangerous political game, which can have unpleasant consequences on the domestic front. Negotiations cannot be completed if leaders are too vulnerable to their own internal public opinion. The two leaders should share a common goal to settle the dispute personally and work together to convince their domestic audience, despite the harsh criticism that may arise in each of the countries. Governments should not react to every harsh statement that is made in the appropriate domestic context. To do this, it is necessary to establish mutual trust between the two leaders.
Negotiations on the delimitation of borders should be conducted in secret. The number of participants should be kept to a minimum, and strict control of information is mandatory. If the content of the discussion is disclosed, the negotiation process will immediately stall. Secret discussion in a calm atmosphere is necessary, and open diplomacy does not play a role here. Nevertheless, it is becoming difficult to provide such an environment, not only because people receive more information about diplomacy through the world media, but also because foreign policy is not immune from accountability, which is increasingly demanded by public opinion today.
In the course of normal diplomatic negotiations, each State begins by presenting its first proposal based on its legal position, and then the two States try to find common ground. In the real world of diplomacy, it is rare when one side manages to get 100% satisfaction as a result of negotiations, and the other completely loses. The end result is usually somewhere in the middle. The rulings of international arbitrators or tribunals sometimes present their decisions so clearly that it becomes obvious which State is the winner and which is the loser. However, many rulings tend towards an interim solution.
Looking at the initial positions of the two countries involved, it is likely that we are already seeing a number of solutions that can be achieved through negotiations or third-party solutions. This means that the initial position in the negotiations is relevant
to the course of the negotiations, and the negotiators should pay attention to where to start. This is one of the reasons why States are so cautious and spend so much time reaching an agreement between the States concerned on the terms of reference to be submitted to the International Court of Justice (compromise).
Negotiations on the delimitation of the border, as a rule, attract political attention at the highest level, and this process is political in nature. However, the most important reference used in it is international law. If one State takes an action incompatible with its legal position, its negotiating position will be undermined. If your behavior contradicts your own legal argument, or if your behavior can be perceived as tacit agreement with the legal argument of the other party, another State may use these arguments as weighty evidence to discredit your legal position in international court proceedings. The damage cannot be easily recognized by ordinary citizens or those who are not familiar with international law, but as long as we want to resolve these issues legally, legal consistency must be maintained.
Conclusion. In this study, a review of the practice of foreign policy on the issues of border delimitation was carried out. As noted above, since issues related to disputed territories are of a political nature, international law is always an important guideline in resolving disputes. It is also true that international law alone cannot bring a dispute to a settlement. However, in the modern world, where the use of force as an appropriate means of resolving disputes between States is practically excluded, international law has become more important in the settlement of disputes, and the international community shows more confidence in international law than ever before. International law exercises its primary effect through the use of international arbitration or tribunals, which creates the advantage of depoliticizing the issue, leaving it to the discretion of experts. It is probably due to this advantageous property that more States today refer their cases to the International Court of Justice.
However, there are certain directives that States following this course of action must follow in order for the international community to maintain confidence in this process; for example, States must accept and comply with any decision that the court may make.
The role of foreign policy practitioners is to use international law effectively and strategically in dispute resolution and at the same time to help political leaders and the public deepen their understanding of the usefulness and limitations of international law.
References
1. Конвенция Организации Объединенных Наций по морскому праву. Подписана в Монтего-Бэй в декабре 1982 года.
https : //www . un.org/ru/documents/decl conv/conventions/lawsea. shtml
2. Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), Judgment, 15 June 1962, ICJ Reports 1962, p. 32.
3. Устав ООН. Сан-Франциско. 26 июня 1945 года. (с поправками от 17 декабря 1963 года, 20 декабря 1965 года, 20 декабря 1971 года).
https://www.un.org/ru/about-us/un-charter/full-text
4. Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia). OVERVIEW OF THE CASE // INTERNATIONAL COURT OF JUSTICE.
https://www.icj-cij.org/en/case/102
5. Islands of Palmas Case (USA v. The Netherlands) Award, 4 April 1928, Reports of International Arbitral Awards 2, p. 829.
https : //legal.un . org/riaa/cases/vol_II/829-871 . pdf
6. Legal Status of Eastern Greenland, Judgment of the Permanent Court of International Justice, 5 April 1933, PCIJ Series A/B 53, p. 54.
https : //www . icj- cij . org/en/pcij-series- ab
