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美国本科法学essay:从国际法角度探讨南海问题

时间:2019-04-01 14:01来源:未知 作者:anne 点击:
导读:本文是是美国本科法律专业留学生的一篇essay,基本从以下这些角度分析了中国海南问题-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
导读:本文是是美国本科法律专业留学生的一篇essay,基本从以下这些角度分析了中国海南问题-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介绍
南海位于中国东南方向,面积约356万平方公里。目前,中国、越南、菲律宾、印度尼西亚、马来西亚和文莱等六个国家都声称对南海珊瑚礁拥有主权(Encomienda,2013年)。由于各国主权主张地区存在较大重叠,导致争端的存在,由于中国在该地区国家中拥有最强的综合国力,该地区的争端主要表现为中国与其他国家之间的领土争端。争议的存在对地区、有关各方和世界的和平与发展构成威胁,因此有必要了解争议存在的原因,探讨解决争议的途径。本文首先介绍了南海的利益,然后分析了中国和其他国家对南海主权主张的国际法依据。随后又提出了其他国际争端解决案例。最后,建议各国如何利用法律手段维护主权,和平解决南海争端。
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主体
2.1 Interests of the South China Sea南海利益
2.1.1 Rich natural resources丰富的自然资源
西南海域海底资源十分丰富,特别是巨大的石油天然气储量。数据显示,南海拥有200多个油气结构,约180个油气田,相当于全球储量的12%,被称为“第二波斯湾”。而南海海底天然气储量为15万亿立方米。南沙是一个分布最广的珊瑚礁的大型热带渔场,拥有丰富的渔业和旅游资源(吴,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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