The Settlement of Territorial Disputes Among Countries in the Perspective of International Law and Other Aspects

Home , Territorial dispute

Indonesian Law Journal P-ISSN: 1907 – 8463; O-ISSN: 2772 – 8568 https://ejournal.bphn.go.id/index.php/ILJ Volume 13; No. 1; July 2020

THE SETTLEMENT OF TERRITORIAL DISPUTES AMONG COUNTRIES IN THE PERSPECTIVE OF INTERNATIONAL LAW AND OTHER ASPECTS

Juvelin Rezara International Law Postgraduate Student International Law, School of International Education in South West University Political Science and Law, Chongqing, China E-mail: [email protected] Marcellino Gonzales Sedyantoputro International Law Postgraduate Student International Law, School of International Education in South West University Political Science and Law, Chongqing, China E-mail: [email protected]

ABSTRACT International law is a set of international rules originated from agreements or conventions among countries that is justified as a legal norm to maintain secure relationships, friendships, and sovereignty respect among states. Adversely, acquisition of territory by disputes remains an unsolved matter in international relations until this recent era. Consequently, the theme of research required an international law`s perspective on settlement of territorial disputes which is the biggest matter that generates an international relationships convulsion among states in the past and even in this recent world as well. The authors hereby divided the discussion on this research into two big parts: first, different methods of disputes resolutions in the view of International law, which subdivided into two small parts a) legal binding resolution and b) Non-legal binding resolution, and second, the trends of international law and capability of international organization on settlement of disputes recently, divided into different parts a) Choice of methods, b) Partiality and favoritism in adjudication of decision-making and c) Deficiency of UN`s organs. At the end, the conclusion presented areform plan towards an effective solution on resolution of territorial disputes. Further, this paper compiled UN views through different cases and legal comparisons towards a new perspective on how to settle territorial disputes efficiently and challenges of international law. Thus, this research is intended to be published as an accurate perspective on settlement of territorial disputes across the world, especially to countries which need it.

Keywords: disputes settlement, territorial disputes among countries, International law and other aspects, legal binding resolution, and non-legal binding resolution.

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A. Introduction By simple determination, there are Recently, settlement of territorial dis- discrete reasons why bring about prolif- putes becomes a broad subject in the eration of territorial litigations such as a perspective of international law. Unfortu- geographic situation, culture, economic nately, this predicament is faced by many resources, and the emergence of new countries around the world. . Such trend State whether by self-determination or by has a significant meaning in the interna- the reasons determined by customary law. tional society, by the fact that it is related Between territorial dispute and bound- to fundamental rights of states, sover- ary, the main causes of disputes are the eignty, and also international peace. Ter- disagreements over the acquisition of the ritorial disputes are major cause of wars territory. The acquisition of territory is re- and terrorism as states often try to assert ferred internationally on several reasons their sovereignty over a territory through such as, the occupation of Terra nullius; invasion. Apparently, the international or- prescription; cession; accretion and by ganization does not encourage the use conquest over the land territory especially of force by a state to annex the territory and which can inflict the possession of the of another state, set forth by United Na- sea territory. In further case, territorial dis- tions Charter1 in Article 2 (4) mentions: ”All putes have often been the result of vague members shall refrain in their international and unclear language in a treaty that set relations from the threat or use of force up the original boundaries, which justifies against the territorial integrity or political the reasons why charter of United Nations independence of any state, or in any other warns its member to respect the mutual manner inconsistent with the Purposes understanding of situations that tend to of the United Nations”. International laws generate military conflicts and does not have been significantly affirmed by the support the use of force by one state to rules related to inviolability of sovereignty annex the territory of another state. Addi- over territory. Set forth in Montevideo con- tionally, the UN Charter also states that all vention of 1933 on rights and duty of state, Members shall refrain their international that every State shall have its population, relations from the threat or use of force governance and delimited territory with against the territorial integrity or political entire sovereignty, namely other States independence of any states, or in any oth- are prohibited to penetrate without permis- er manner inconsistent with the Purposes sion from the territory owner. of the United Nations.

1 The international organization that has perfect rules and organs in handling most disputes in international relations and its rules bind all member states, which recently consist of 192 states. It has set forth in article 38 all methods that can be used in resolving international disputes particularly the territorial disputes.

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Historically, most of the wars and cri- used in accordance with purport of inter- sis across the world in the past2 and so national law. However, other methods that far, were concerned with the possession of have been effectively used to resolve the the territories whether land or sea. Hence past cases, had represented equally the the question is posed; How to process interest of the disputants, are important the settlement of disputes on acquisition as well.4 As a result, those reasons men- of territory internationally? What are the tioned above lead us to develop this paper legal methods in settlements? And have in compliance with the real meaning of our the previous resolutions conformed with topic into sections as follows: the perspective of international law? In the At the beginning, we start with the ex- fact that there have been several coun- planation of the different methods of dis- tries disputed on acquisition of territory in putes resolution with its appropriateness. the past which were peacefully resolved. Commonly, as the recourse of the U.N, However, the territorial disputes are sur- the international court of justice and forum prisingly unstoppable until present days, towards the arbitration are mostly used in and more countries continue to claim and the past as legal binding resolution. Nev- fight down to be the legal owner of some ertheless, there are other track-ways non- territory3. For that reason, the most ac- legal binding to peaceful settlement of ter- quisition of territory issues that could be ritorial disputes which have been broadly disputed among countries and will prob- neglected, but usually employed as re- ably be resulted in risks towards military courses to process onto legal resolution conflicts, are strongly emphasized by UN of dispute nowadays, such as negotiation, charter, shall be peacefully settled. Hence, mediation and consultation of experts. the title of our study is ”The settlement of On other hand, critics in settlement of Territorial Disputes among Countries in disputes by judicial resolution5 are showed the perspective of international law and up, by the fact that the proliferation of Other Aspects”. It underlines the neces- territorial disputes are not decreasingly sity to grasp respectively the reasons why well-managed by international organiza- interstate territorial disputes are ubiqui- tion and rules which are supposed to be tous, and the resolution methods could be an international norms, in terms of a lot

2 Victor Prescott ”Contribution of United Nations to solving boundary and territorial disputes, since 1945” department of geography and Environmental studies, University of Melbourne, Parkville, Victoria 3052, Australia. 3 A lot of countries are disputed recently including these 5 borders which are reported as may cause a trouble” China and India, Venezuela and Colombia, Eritrea and Djibouti, Iraqi and Syria and Cyprus”, marked that territo-

4 Friendly settlement of territorial disputes set forth by UN Charter are deemed necessary to settle a dispute be- tweenrial conflict countries is a dead-enddespite its disputes. non-legal force (consultation, mediation, reconciliation, etc). 5 Settlement of disputes through ICJ or Arbitration is legally binding. When there is a legally binding dispute settlement, then each disputing state must acknowledge the decision taken whatever it is, which occasionally induce partiality.

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of countries are currently and imminent As a matter of fact, this paper does not to dispute. Knowingly, that situation might only refer to a limited settlement of territo- be the results of deficiency of international rial disputes written in some international law more particularly international UN. It organizations affecting the settlement of might also be a form of disappointments disputes, but also to determine the pos- of a country that shall win the settlement sible ways of resolution by observing the of dispute, but on the contrary lost its right efficiency and its applicability. because of partiality and favoritism of the The use of these above-mentioned decision-maker. This critical approach is methods of research does not suffice to evoked in order to adjust the territorial dis- clarify the point of this topic. It broadly calls putes resolution. for a depth self-analysis and perspectives in regard to the international laws, espe- B. Research Method cially to advance self-critic and suggestion In order to evoke a significance per- aim at bringing about the legal and peace- spective and analysis on this paper, it is ful settlement of disputes among coun- necessary to manage various methods tries. Therefore, the ideas and scope of of researches by consulting the interna- this research are compiled through numer- tional law text books like U.N Charter on ous international law perspectives and the settlement of territorial disputes, the rules author self-analysis so as to neatly show agreed on settlement of boundaries dis- up the suitable and proper methods on ter- putes and the law of the sea whether it ritorial disputes resolution, and with an un- concerns the territorial sea disputes. The derstanding to omnipresent fickleness of formulation and analysis on the settle- international laws.6 ment of previous facts were also applied in this research in terms of comparing the C. Discussion enforcement of the international rules in 1. Different Methods of Disputes Res- compliance with international customary olution in the View of International law. In addition, it also refers to the pre- Law vious documents that were internationally In international law, the settlement of accepted such settlement of international territorial disputes depends upon circum- territorial disputes written by author cross- stances therewith, some states dispute in outstanding universities (Cambridge Uni- the default of clear delimitation of bound- versity in U.K, Harvard University in USA, ary and others also dispute to the terri- and so on). tory land or sea where there is no clear

6 the international organization on settlement of its territorial disputes, and there are also some states which Throughout analyses of international cases, that some countries have been truly satisfied by adjudication from

never find out a suitable resolution in the fact that there is an inconsistency of the international rules.

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determination and accuracy ownership as the sovereignty over land or sea defines affirmed by international law. Apart from what constitutes a state. In several at- these reasons, the construction of an ar- tempts, however, these boundaries and tificial island becomes the biggest recent land disputes are subject to competing dispute, in terms of that there is no legal international territorial claim. Such land definition about this matter, even in the claims can be distinguished determinedly UNCLOS. Therefore, the resolution of the into nine categories: treaties, geography, dispute should be flexible in accordance economy, culture, effective control, histo- with what the countries on disputes are ry, uti possidetis, and elitism. States have willing for. to rely on nine categories to justify legal claims at international courts of justice. a. Legal binding Resolution of In- The most common claims are cast in terms ternational Territorial Disputes of effective control of the disputed territory, Generally, it is necessary to clarify historical right to title, uti possidetis, geog- what is meant by the term ”international raphy, treaty law, and cultural homogene- 8 legal dispute resolution” that is defined ity. Adversely, territorial sea disputes are as a resolution refers to state practice of internationally referred more on UNCLOS, submitting disputes to a deliberative body while international laws and international that assesses the merits of rivals that state conventions bring about the convention on claims and issues a summary decision as measurement of continental sea breadth, to how to settle the dispute.7 contiguous Zone and EEZ. The term International legal dispute resolution is used in a broad sense to in- a) Territorial Claims Through Legal Justification clude both arbitration bodies and international courts of litigation and non-litigation. Cases may come before the inter- While the two types of bodies possess national court of justice, an independent certain differences, in practice arbitration subsidiary organ of United Nations, by panels7 and international courts are often referral through agreement between two function quite similarly. or more states, by a treaty provision com- mitting disputes arising under the treaty to 1) Settlement Of Territorial Disputes the court, or by the parties` statements of At International Court Of Justice compulsory jurisdiction. In fact, under Ar- In international law, the ownership of ticle 38 of the statute of the international territory is especially significant because court of justice, when deciding cases in ac-

7 Through claims before UN organs, security council shall when it deems necessary and ICJ. The instance of arbitration court, which is often, used in international various dispute settlements. 8 Cultural rights in the case law of the ICJ, Cambridge University press: 24 April 2014, vol 27, pp.447-464.

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cordance with international law, the court ritory justification is more legal in nature, shall apply to the following sources of law: because it is less emotionally persuasive ● International conventions, whether than historical claim might be. Neverthe- general or particular, establishing rules less, claims based on treaty are particu- expressly recognized by the contest- larly persuasive at the ICJ because Article ing states; 38 of the ICJ statute obligates the court ● International custom, as evidence of to consider the treaties. Thus, it is no sur- general practice accepted as law prise that treaties are binding on the par- ● The general principal of law recog- ties that have ratified them. Despite the nized by the civilized nations; appeal of treaties as contractual agree- ● Subject to the provisions of Article 59, ments between parties to a territorial dis- judicial decisions and the teachings pute, a particular difficulty with the ICJ`s of the most highly qualified publicists use of treaty law is the application of a cer- of the various nations, as subsidiary tain treaty to states not party to the agree- means for the determination of rules of ment. In the most cases, treaties are used law. to demonstrate the consent of other states with respect to boundaries later inherited Furthermore, if the parties agree, the by the litigants before the ICJ. court may decide a case under equity prin- Secondly, geographical justifications ciples9. Territorial claims before the ICJ for territorial boundaries or land are nei- usually fall with one of the above four cate- ther novel nor uncommon. Natural borders gories. Substantively, treaty claims are the create a clear dividing line between two easiest to assert, because the existence countries, such mountain ranges, rivers, of a treaty is easier to prove then the ex- oceans, and other bodies of water and istence of customary international law10, physical formations have perennially sep- which requires evidence of state practice arated political entities; offer a buffer of or the existence of general principles of security; often do not require active patrol- law recognized by civilized nations. How- ling by border guards, and historically have ever, in the lack of these mentioned above been more difficult to dispute than borders the litigant can base on no legal and politic less easily identifiable by a physical land- claims. Hence, it is necessary to develop mark. Natural boundaries, however, can all details about the justifications: present neighboring states with problem Firstly, treaty law, as compared to other bases for territorial claims, the ter-

9 System mostly used in common law countries which refers on to what is fair and reasonable (BIICL, international and comparative law). 10 Aspect of international law involving the principle of custom, considered as primary sources of international law.

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of precision in demarcation11, delimitation, sense of belonging, but the characteristic or both. By their nature, it can be difficult creating this belonging varies by group and to mark and natural information creating region. Language also has been used as a boundaries are not stable; thereby making distinguishing characteristic that enables resource allocations in the frontier region ruling classes to emerge to the detriment more problematic. of the minority groups. It is often agonized Thirdly, in international rules economic to claim based on the doctrine of self- aspect can be as well a genuine justifica- determination, which draws state bound- tion of territorial claims at international aries corresponding to the distribution of court of justice. The claims assert that the national groups with the territory. Ideally, territory in question is necessary to the vi- self-determinative actions would result in ability or development of the state. For ex- a more culturally homogenous state12. ample, the territory may be necessary to Fifthly, a claim based on effective con- facilitate internal and international trans- trol is one in which a group claims certain portation routes for goods to exploit raw land because the group has an uncontest- materials, to cultivate land, and the alike. ed administration of the land and its resi- Economic claims also include the more dent population. Basing on juridical con- novel claim that certain territory should be- ception that effective control is a”SINE long to the clamant because it presents a QUA NON” of a strong territorial claim.13 close economic relation. State makes this The status of abandonment as a precondi- claim with respect to colonies. tion to effective control is highly debatable Fourthly, cultural justifications are and on the other hand the land ”TERRA based on the ethnic nation argument, NULLIUS” a territory not belonging to any which underlies any justification for draw- particular country.14 Previously, only dis- ing a border in a specific place because covered land was terra nullius, term en- of common language, religion or other cul- compasses land over which no state exer- tural characteristics that defines the group cises sovereign control. of people living in a particular territory. In a Principally, when the rightful sovereign territorial claim based on culture, the claim- acquiesces in the control of territory by the ant state contends that because of shared infringing the sovereign, the requirement pasts. The core of the cultural claim is a of abandonment is inapplicable altogeth-

11 Demarcation Practices, organized by OSCE borders Team in co-operation with the Lithuanian OSCE chairman- ship, 31 May to 1 June 2011, Vilnius Lithuania. 12 The U.N Charter and other international conventions allowing a state to have self-determination, fundamental rights of state, Montevideo convention in 1933. 13 Strict condition, likewise Israel, Gaza, and the End of its effective control in default non lawful control. 14 Terra Nullius in the ICJ judgments on cases concerning Ligitan/Sipadan (2002) and Pedra Branca 2008, Euro- pean Journal of I.L, volume,26, issue3,08-2015, pp 709-725, and DANIEL LAVERY written book about Doctrine of terra nullius.

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er. That is the legal doctrine of acquisition Latin America, Asia, and Africa, is a doc- by acquiescence, means appropriation or trine under which newly independent states control of territory with problem and though inherit the pre-independence administra- is inacceptable. tive boundaries set by the former colonial Sixthly, Historical claims to territory are power.16 The doctrine posits that title to the based on historical priority15, which coun- colonial territory devolves to the local au- try was firstly possessed and occupied thorities and prevails over any competing with duration. Although effective control claim based on occupation. Thus, Uti pos- means the possession, presents the stron- sidetis is predicated on a rejection of self- gest claim under property law, historical determination and assumes that internal, claims create an underlying entitlement administrative boundaries are functionally to territory, regardless of whether a state equivalent to international boundaries. has actual or constructive possession of Eighthly, Elitism claims to territory the land at the time of the claim. Thus, contend that a particular minority has the historical claims tend to be the most com- right or duties to control certain territories. mon, compared to the other claims dis- Historically, such claims were made most cussed here. A claim of historic right is bol- frequently, often shaped them in terms of stered by the passage of time; when the divine right to rule certain territory. The encroached state does not act to counter claims have become rarer over time be- the claimant`s right, it is deemed to have cause they run counter the democratic acquiesced in that right and is prevented ideal. Nevertheless, elitist claims have a from rejecting the title for lack of consent. modern and public incarnation in argu- In fact, historical claims often relate to cul- ment for territory based on superior tech- ture claims, in the reason that the clamant nological ability, a particular group claims possesses greater cultural importance of control over a territory by virtue of having the territory, and it is strong when the ter- the capacity to develop the land`s poten- ritory in question is the claimant group`s tial most fully.17 homeland because that includes both pri- Finally, the last one is ideological ority and duration, and expresses the ulti- claims; resemble claims of a special mis- mate case of mainland symbiosis. sion based in unique identification with Seventhly, Uti possidetis, a principle land and having inherent exclusivity over- used to define postcolonial boundaries in tones. While, ideological justifications for

15 The possession of territory depends upon history of the territory, it is more related with culture of the territory where is claimed or usages as well. 16 Latin for ”as you possess under law”, BRIAN TAYLOR SUMMER ”Territorial Disputes At the International court of justice ”frontier disputes(Burkina Faso/Mali) was based on uti possedeti in 1983, Duke law Journal, p.19(1986. ICJ.556,556-57.dec.22). 17 Ibid, the use of Elitism claims, territorial disputes (Libia/Chad},1994 I.C.J,6,12-13(feb.3).

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territorial claims are more appropriately decisionand which countries faced the use termed ideologically imperialist. The anti- of jurisprudence on settlement of their dis- colonial ideological justification, which ar- putes. gues that colonial boarders are per se inappropriate delimiters of territory for moral  Appropriateness of jurisprudence or legal reasons, is definitely the antithesis A lot of claims of territorial disputes of Uti possidetis claim. were rejected at international court of justice by using these justifications above in b) Value of Jurisprudence on Resolu- terms of the court has stated its incon- tion of Territorial Disputes in the sistency. As a result, the court laid down view of International law forthright to jurisprudence as a best way This part uses the forgoing catego- to solve the dispute. Such as in the case ries of justifications for territorial claims when France and the United Kingdom for analyzing land disputes adjudicated submitted to the ICJ their dispute over the by the international court of justice. These sovereignty of the Minquiers and Ecre- cases are the only land boundaries cases hos island groups18, located in the English that the court has adjudicated. As a result, Channel between Jersey and the French the territorial land refers on these afore- mainland. The party made arguments mentioned reasons opposing the sea that based on treaty law, history, and effective focuses on international conventions. Ac- control. As the result, the court rejected cordingly, it leaves out the question on all arguments based on feudal land grants how to determine those reasons through and fisheries agreements, all of which the jurisprudence. antedated 1648, because no specified At the beginning, it is quite necessary border or islands were held by Kings of to define the term international jurispru- England and French respectively. Judge dence. Simply, international jurisprudence Basdevant, writing a separate opinion, is a court`s previous decision that has concurred: ”Suzerainty...is not sovereign- been used in an ambiguity in which these ty,” noting the important distinction that the nine justifications above are not compat- court implicitly made in dismissing claims ible to solven the disputes among coun- based ambiguously on feudal titles. tries. Therefore, the court had to find out In the absence of a valid treaty claim, other perspectives to take as a resolution the court considered the effective control of the matter, then that decision becomes arguments and found that the British gov- a reference for the next similar cases. ernment exercised sovereign jurisdiction That definition is obviously required to and local administration over Minquiers corroborate how the court adjudicated its

18 Summaries of judgments and orders, 17 November 1953/2.

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and Ecrehos through such acts as judicial  Conception of Jurisprudence in ju- proceedings, local ordinances regarding dicial decision the handling of corpses, levying taxes, The existence of a prior boundary licensing commercial boats, registering treaty or other documentation reflecting deeds to real property, and conducting interstate agreement as to boundaries is census enumerations and customs affairs. generally dispositive for the court. This Thus, the court awarded the territory to the rule often holds even when agreement United Kingdom. is unclear or incomplete. In cases when Similarly, in 1998 Indonesia and Ma- state consent is evident, the court has 19 laysia, by special agreement , asked the started and ended its legal analysis with ICJ, to determine, on the basis of the trea- the agreement. When no international ties, agreements and any other evidence agreement exists, however, the next most furnished by the Parties, the sovereignty dispositive basis for judgment is Uti pos- over the islands of Ligitan and Sipadan, of sidetis alone because almost all colonial the cost of Borneo. The parties presented boundaries were codified in some kind of arguments based on treaty law, Uti pos- instrument. Consequently, the court can- sidetis, effective control and history. The not easily recourse to jurisprudence when court began its analysis with the 1891 other justifications or other legal concept British-Dutch convention and found that are clear for settling the matters. It is usu- it did not address the boundary in ques- ally used on the case which the court has tion. Lacking a treaty law basis for its deci- no clear or accurate adjudication. sion, the court turned first to subsequent agreements between Great Britain and the 2) The Use of Arbitration on Settle- Netherlands, and then to the parties’ sub- ment of International Territorial sequent practice, in unsuccessful attempt Disputes to understand the parties’ mutual intent. a) General Conception Then the court considered, however, that To begin with, Arbitration is defined as Malaysia`s regulation of the commercial one of the legal methods for the out of court collection of turtle eggs and establishment dispute settlements, wherein the parties to of a bird sanctuary on the islands were ad- the dispute refer it to one or more persons ministratively sufficient to demonstrate ef- (arbitrators, arbiters or arbitral tribunal), by fective control. whose decision they agree to be bound. Arbitration in the United States and in other countries often includes alternative

19 - pur on 31 May 1998. Jointly notified the court for bilateral agreement on controlling the islands between them, signed at Kuala Lum

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dispute resolution20, a category that more Arbitration has been used over sev- commonly refers to mediation (a form of eral cases in the past, with lots of effec- settlement negotiation facilitated by a neu- tiveness, to settle limited issues of terri- tral third party). However, tt is more helpful torial sovereignty. A lot of countries were to simply classify arbitration as a form of satisfied with using arbitration settlement, legal binding dispute resolution, equiva- as the Rann of Kutch Arbitration between lent to litigation in the courts, and entirely Pakistan and India, and the Taba Area distinct from the various forms of non-legal Arbitration between Israel and Egypt21 to binding dispute resolution, such as nego- name a few. tiation, mediation, or non-binding determi- nations by experts. b) Process of Arbitration in Resolu- Historically, ever since Great Britain tion of the Conflict and a recently independent United States Arbitration is often compared to the agreed to submit a border dispute to arbi- use of judicial settlement, both are legal tration in 1794, in accordance with the Jay means of settling disputes, and both pre- Treaty, international arbitration has proved suppose an obligation of the parties to ac- a useful method for settling limited terri- cept the award (in the case of arbitration) torial disputes between nations. One of or judgment (in the case of judicial settle- the most attractive features of arbitration ment). Additionally, the award or judgment is that the proceedings are generally con- is usually based on rules of international ducted in ad hoc courts of arbitration that law. The most significant difference be- is specially designed to deal with a partic- tween arbitration and judicial settlement ular dispute. The parties can participate in involves the reference of a dispute to a defining the issue to be adjudicated, and permanent courthouse composition is pri- they have the power to be used to settle marily fixed; in arbitration the parties to the the dispute. Arbitration also provides the dispute select the arbitrators. parties with the option of holding hearings When formulating an arbitration pro- in secret. Thus, arbitration provides an ceeding, the parties to the dispute usu- appealing forum for nations that have de- ally define the composition of the tribunal cided to resolve their differences through through either an ad hoc agreement or by peaceful means because it is much more reference to a prior agreement between flexible than a permanent court and allows the parties in which they had agreed to the parties to maintain more control over submit future disputes to arbitration. The the proceedings. composition of a tribunal can vary great-

iss6/7.Among the pacific settlement of international disputes set forth in art 33 of U.N. Carla S. Copeland, The Use of 21 Arbitration to settle Territorial Disputes, 67 Fordham L.Rev.3073(1999), https:ir.lawnet.Fordham.edu/flr/vol/

the use of arbitration and its efficiency, claimed area in the Rann of kutch in 04/1965.

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ly, depending on the parties’ wishes. The parties may define the issues broadly, but most common form of arbitral tribunal more often the questions presented to the presently used is a three or five-member tribunal are narrowly defined. Because the panel, with each party appointing an equal tribunal is limited in its function, it must number of members22. The final member only address the controversy before it and of the tribunal is a neutral third party. This may not delve. type of tribunal usually decides disputes by majority vote. The appointment of the c) Other Peaceful Methods in Interna- members of the arbitral tribunal is often tional Settlement of Territorial Dis- putes (Non-legal bindings) contentious, particularly the selection of neutral arbitrator because only the deci- Aside from the above legal settlements sion of neutral arbitrator often determines of territorial disputes in the view of interna- the arbitration`s outcome. Thus, arbitra- tional law, a lot of further methods are also tion agreements often provide if the par- acceptable to use as tool or compromise 23 ties cannot agree upon the neutral arbitra- to resolve the rivalry among countries . tor, the president of international court or These other methods could be employed another disinterested party shall make the by any country around the world; most selection. particularly the countries which are not Furthermore, to establish the form of Member of international organizations as- the tribunal, the compromise or treaty that sume the settlement of disputes like UN refers the dispute to arbitration should in- organization (ICJ) or other organs. clude the applicable rules of procedure. Among these procedural arrangements 1) Conventional Settlement of Dis- are the location of the proceedings, how putes by Disputants they are to be paid for, the order of plead- To start with, it is quite important to ings, how the tribunal will obtain evidence, define the meaning of convention among and the majority required for the award. countries in settlement of territorial dis- Each procedural arrangement can be ne- putes. It is defined as an accord or special gotiated separately, or the parties may agreement among countries in order to elect to adopt standard procedural provi- settle its actual matter or future one in ac- sions such as those followed by the inter- cordance with the equity and sovereignty national court of justice. of each state. It is a voluntary action by The compromise also incorporates the each state so as to peacefully solve the issues to be decided by the tribunal. The

22 see Cambridge University express, Indo-Pakistan Western boundary case tribunal, award 19 February 1968, represented by Mr. B. N. Lokur, special secretary to the government of India in the ministry of law, and member of the law commission of India. 23 see Art 33 U.N Charter, settlement of international disputes.

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rivalry that could be escalated to military therefore, evokes by both parties through conflict and crisis ever.24 the document which indicated the agree- Generally, most countries that are not ment, by means that the states on dispute member of UN or not satisfied with interna- are only required to produce such docu- tional adjudication of disputes, are skewing ment as evidence25. to resolve its disputes by convention. This kind of settlement is mostly used when ter- 2) Negotiation ritory where the conflict arisen presents an Negotiation for settlement of interna- interest between the countries. The coun- tional territorial disputes is similarly con- try always uses this method by accord to sidered as a process of power-based use the territory ensemble or equitable dialogue intended to achieve or resolve division. Many countries in the world also a territorial conflict over the satisfaction tend to use such method if other resolution of all parties. Precisely, resolution by ne- does not make sense on the interest of the gotiation can be accomplished with dia- parties. logue between states; it may also be done The process of advancing into the ne- through diplomatic negotiation26. gotiation is simpler than others because it Diplomatic negotiation between the is a manifestation of wills by each state to parties concerned is often considered as agree with the situation happeningat that the most efficient method of settling in- moment, meanwhile this resolution is a ternational disputes and is clearly the resume of each other`s agreement as a predominant, usual, and preferred meth- result. In this way, the resolution is abso- od. Indeed, negotiation is used more fre- lutely in peace. For example, the neigh- quently than all other dispute resolution bors’ countries convene to delimitate their methods combined. Parties usually prefer boundaries with a commitment; therefore, negotiation to other methods for a variety both of them are bound to respect the con- of reasons: negotiation allows the parties vention. In addition to dispute that may oc- to maintain maximum control over the out- cur in the future, the parties easily refer to come; and negotiated settlement is more the previous agreed convention. This case likely to be accepted by parties; and nego- often happens to countries, either member tiation is simpler and less costly than other or not member of UN or any international methods. organization. The process of resolution,

24 law methods that have been used before. 25 E.g:The thepeaceful case ofsettlement Indonesia which and Malaysia,the countries special deem agreement necessary between no matter for whether controlling it is the figured islands, out ofsigned international at Kuala Lumpur. 26 The negotiation ”ASEAN, the declaration on conduct, and the South China Sea”, LESZEK BUSZYNSKI, Contempo- rary Southeast Asia. Vol.25,No.3(dec.2003),pp.343-362, httpss://www.jstor.org/stable/25798652.

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Even though negotiation is the meth- of a third party, individual, or organization od most likely used combined with other in resolving a controversy. dispute resolution techniques, bilateral Mediation is among the simplest meth- negotiations alone has been sufficient to od of which procedure allows the parties resolve territorial disputes in a number of to discuss their disputes with assistance cases. of a trained impartial third person to reach The particularity of the negotiation is the resolution. The disputants often agree that decision of resolution bounds the par- to mediation when bilateral negotiations ties when they are agreed. They have to fail down or cannot be initiated and the respect what has been negotiated, but it parties’ desire limited third party interven- does not mean that they cannot refuse the tion. The function of mediator depends on decision. Each party is not bound to the the circumstances, it may be third state or decision of resolution rendered by the third international organization aiming to bring party, who might be conciliator, negotiator the parties together and facilitate their ac- or person concerned in resolution. There- cord.28 In fact, the mediator is free to as- fore, when the negotiation breaks down, sess the interests of both sides and devise the parties still have altenatives to other whatever compromise it deems appropri- methods of which they prefer, such Media- ate, but yet has no power to render a deci- tion is another commonly used method af- sion to the resolution of conflict in the case ter failing on Negotiation. the parties are not agreed in one point of resolution. The resolution of the conflict 3) Mediation depends upon discussing between dispu- By definition, mediation is one of the tants. peaceful settlements of international ter- In addition, mediation is a more flex- ritorial disputes27; it involves the partici- ible resolution because the parties are pation of third party with the objective of not bound to respect the resolution if they helping parties to the dispute to come into deem its inconstancy and inefficiency an agreement to solution. This method to- therein29. In general cases, it is the quick- gether with negotiation, good office, con- est and most useful when disputants are ciliation, and inquiry, is usually grouped already in the way of military conflict. It in the category of political or diplomatic may not cease the roots of the matter right dispute settlement methods. It is also a away, but it could lead the disputants into method which involves direct participation peaceful and appropriate resolution.

27 An amical resolution of disputes managed by both parties on disputes, there is no legal biding on the decision but it`s up to the parties to value it. 28 See. Art 284.UNCLOS, conciliation, mediation .etc in territorial sea disputes, peaceful resolution chosen by the parties. 29 Ibid.Paragraph.3

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4) Expert Determination territorial disputes. Conversely, some- Knowingly, a lot of methods can be uti- times those methods bring about a ubiq- lized to solve territorial disputes in the per- uity convulsion interstate by the fact that spective of international law. Consultation Decision-Makers do not countervail the of Expert is amongst necessary methods to adjudication. That attempts might hazard resolve disputes, but it is not considered to a direct consequence into the behavior of have an international legal-binding.30 The countries, and also could inflict a regard- conception on settling international territo- less of the right-purport of international rial disputes carries a mission to settle all law. disputes around the world with other methods supposedly efficient. Consequently, it a. Choice of Methods depends on the parties in conflict to ask In referring to many cases of territorial for a suggestion from the expert. disputes in international law that has oc- To undergo the process two parties on curred and the ongoing settlement which conflict ask for perspective and suggestion never found out their solution up to recent from the expert and since the expert is pri- days, a lot of critics could be drawn as the vate party, the remuneration of expert also main matters towards the effective resolu- depends on the agreement between them. tion. Having the advantage of only involving the Genuinely, the choice of methods used two countries and the expert in settling the to settle the matter is the roots of disputes dispute, the procedure is, therefore, much resolution. This might be the main cause simpler and the expert may not be par- why many countries are still fighting ever, tial in his suggestion because the dispute for example a territorial dispute between settlement will not present his favoritism in Madagascar and France that has been decision-making. Meantime, the percent- triggered a long time. The dispute is that, age resolution transparency is probably knowingly, Madagascar is a country colo- expected. nized by France that was lasted in length periods. Over time, Madagascar got its In- 2. Trends and Challenges of Interna- dependence in 1960, the period after the tional law in Territorial Disputes UN Charter which required every country Resolution Recently around the world endured the coloniza- Globally, these methods are all very tion, shall be entirely released and should important, and each has its efficiency and form its sovereignty necessary if the con- particularity on resolution of international ditions awarded to be an independent

30 The expert shall be a person who has basic knowledge in international territorial disputes resolution, practitio- ner, third party and independent.

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state are fulfilled. Then pursuant to the In such case, the disputants would requirements of UN, France shall totally better choose the use of arbitration in the give independency to Madagascar, espe- reason that it is more appropriate than cially the sovereignty of Madagascar over others. Because it depends on agree- its territory.31 ment between the countries towards the Lamentably, France refused to return resolution, which means that when the the small Islands that are legally belonged parties are intended into arbitration, then to Madagascar. In facing this matter, the each of whom would agree with adjudica- claim was launched directly towards the tion decision by arbitrators. Furthermore, UN`s organs, thereafter the instruction the initial process of the resolution needs and justifications of pretending owner of a deeper evaluation of situation that will territory were required, and ultimately the probably occur. For example, arbitration UN recommenders have taken its decision has proved most productive in relative po- in favor of Madagascar. France, however, litical disputes where the parties’ claims to refused it; in terms of it did not want to give the land are based on historical arguments back the territory to Madagascar easily, and documentary evidence. and perceived this decision as an impinge- The Rann of Kuch and the Taba Area ment to its private affairs and Madagascar. arbitrations provide examples of such situ- As a matter of fact, it is not privacy affairs, ations, the disputes in that arbitration were it is fairly a violation of Madagascar`s sov- either not highly sensitive or the parties ereignty.32 had previously decided to subordinate their In critical approach, according to the interests in the territory to more profound main objective and restoration of the national concerns. The parties in disputes United Nations, any country violates re- were, therefore, willing to cooperate and gardless the sense and articles of the UN participate in the resolution. This is not to and impingement into sovereignty of other say that arbitration could ever be used ef- States are withdrawn promptly not to be fectively to resolve all contentious claims a country member of the United Nations to territory, but the process preceded the Organization. Therefore, it is so important agreement appear that negotiation has to acknowledge beforehand the measure- been concluded in advance. At the same ment to choose a method which is proba- time the parties can then work together to bly expected to settle down the disputes in determine the precise issue to be adjudi- favor of a party that should gain its rights. cated and the limits on the tribunal`s au- thority.

31 reference, UN charter in its preamble, convention on the law of the sea and Hague convention ,violation of sovereignty over the territory. 32 The UN General Assembly recommendation over sovereignty of Eparses Islands , disputes between Madagascar and France, resolution 3491 , 1979 December 12th .

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In the past, some resolutions were United Nations. They also blamed U.K failed, because of evaluation on nature of because the arbitrator third party is root disputes and the situations of disputants of adjudication decision. Historically, the were not deeper, and especially the meth- dispute had been going on between the od awarded is inappropriate with the cir- Russian and British Empires since 1821 cumstances therein. and was inherited by the United States as a consequence of the Alaska Purchase b. Partiality and Favoritism in Adju- in 1867. It was resolved by arbitration in dication of Decision-Making 1903 with a delegation that included 3 In a sharp analysis, the trends in ter- Americans, 2 Canadians, and 1 British ritorial resolution towards the International delegate that became the swing vote. By court of justice or arbitration present an 4 to 2 votes, the final resolution favored unexpected decision that sometimes fa- the American position. Canada did not get vors one party on dispute which should an outlet from the Yukon gold fields to the 33 not be benefited in referring to legal docu- sea. The disappointment and anger in ments. Especially, when the conflict touch- Canada were directed less at the United es the interest of decision-maker`s coun- States, and more at the British govern- try or a country possesses veto Rights in ment for betraying Canadian interests in the UN, they absolutely teeter the settle- pursuit of a friendly relationship between ment of matters. That is the reason why Britain and the United States. Such kind more than 150 disputes underway involve of resolution influences many countries on territory, mostly in Africa, Asia, and the Pa- territorial conflict to escape ICJ or others cific region. The same also appears, even similar positions. in Europe and America, some countries The result provides an additional di- do not fully trust the legal adjudication mension to patterns discovered in the lit- from this way of settlement. Likewise, the erature on international dispute resolution, border dispute between Canada and the which show that states are biased words United States was guided by arbitration certain ”Product Requirement Document” resolution. And when both of them formed methods. It is obviously known, because their arbitrators with a third-party arbitrator the ICJ has rules and procedures that from the United Kingdom, the arbitrators mimic those in civil law systems, not sur- adjudicated that the United States was the prisingly civil law states have been much winner. Such decision has very much in- more likely to recognize the jurisdiction fluenced the people of Canada who con- of the court than common or Islamic law sidered the arbitrators were in favorof the states. Judges at ICJ exhibit these biases

33 D.M.L Farr, Niko Block, February 6, 2006, Alaska Boundary Dispute.

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in their case decision-making when they deemed as worse and shows up regard- show favoritism towards countries that less the United Nations Charter for coun- are similar to their home states. The re- try members, yet accurate in any cases cord constitutes another source of bias according to Humanitarian law35, thus as that makes some methods which are not to avoid partiality of adjudication could be attached with the United Nations Charter drawn from international organization or much more appealing to state than other any methods akin to this, whether any oth- methods, which helps to account for the ers could shut down the relevant disputes desire for forum shopping in the interna- in right manners. tional realm. Unfortunately, several practi- tioners of international law have repeated- c. Challenges of the UN Organs ly expressed their concern regarding the (ICJ) on Settlement of Territorial increase practice of forum shopping. Disputes The one best method for resolution Consequently, to suggest the exis- of territorial disputes to be completely tence of international organizations and solved is that, by advancing mutual agree- others which are related on settlement ment34 from both or more disputants who of territorial disputes are lessons for us are involved with. Then the countries can to step towards an effective organization achieve this agreement by bilateral dis- or methods accurate on resolution of discussion, meaning there is no third party putes. The adjustment can be drawn easi- or any international organization`s sug- lyover the ineffectiveness of all methods gestion interferes on the settlement. The that have been used up to now. It is not way of achieving the resolution depends solution to confine the resolution methods upon the two parties’ agreement in order only among countries member in such or- to avoid partiality and favoritism through ganization, because disputes may appear interest of each disputant. Further, the dis- between two countries which may be the putants can also process their agreement member of UN or ICJ. Beforehand, the in- to a peaceful mediation through mediators ternational organs may figure out its com- agreed by both of them, more precisely, petence on the territorial dispute Reso- both consent that the decision will be held lution. It is sometimes become the main is fair and impartial. cause of terrorism around the world on The use of Army is the last method territorial dispute concerns, and increases which is shaped beyond the UN Charter,

34 The UN charter on peaceful settlement disputes, the agreement accepted by parties, whether appointed by the court or by both of them. 35 Reference, Rome statute of International criminal court, jus ad bellum, Jus in bello, but not subject to claims to sovereignty over territory.

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the disregards of international rules and judicial decision is not a reliable resolution court`s decision as well.36 sometimes. Those deficiencies of international court of justice, for example Nicaragua D. Closing cases of non-compliance should lead to To sum up, an acquisition of territory better understanding of contemporary is- by dispute has been one of the biggest sues facing the court. As will be seen, challenges of international law up to now. while occasions of non-compliance with Frequently, to escape devastating dan- final judgments are relatively infrequent, ger, crisis and violation of sovereignty that whether before or after Nicaragua and might occur in acquisition of disputed- some recent ICJ cases continue to expe- territory among countries, bringing claims rience compliance problems, decreased before the UN shall be deemed very nec- hostility towards judgments rendered by essary and common ways, by the fact that virtue of compulsory jurisdiction is per- it has set forth legal methods on resolving ceptible. However, not all of the ICJ`s territorial disputes by compulsory decision pronouncements have met similar appre- which comes from ICJ or Arbitration body. ciation, but what is highlighted here have Similarly, disputing parties may prefer oth- relatively been the weakest. er methods which are asserted amicably, Similarly, according to the UN Gen- although they are not legally binding. All eral Assembly`s resolution of Madagascar these methods are useful in settling dis- and France rivalry on Bassas da India, pute which fits its characteristics. In other Europa Island and Juan de Nova Island, words, having the right to choose the meth- Madagascar has a full right of these ter- ods aforementioned for a dispute does not ritories against France`s impingement into mean adopting one method without con- its territory and pronounced its decision sidering and regarding its consistency. also in favor of Madagascar. Unsurpris- Despite all methods of resolution set ingly, France rejected that decision and af- out by the UN Charter, there are a lot of firmed before the UN`s organs its refusal challenges and reform that should be sur- ”NON-COMPLIANCE of decision”. That mounted particularly in settlement of ter- attempt shows up a deficiency of UN advi- ritorial disputes. Obviously, the UN has sory opinion in facing resolution of territo- been playing tremendous roles in interna- rial disputes between countries, although tional matters. It has struggled to resolve transparently known that a member vio- diverse challenges since its foundation lates the Charter. In fact, skewing towards for significance of world peace. Neverthe-

36 Susan. W. Tiefembrun, comment on ”The Role of The World Court in Settling International Disputes”: A Recent Assessment, 20 Loy.L.A Int`l &Comp.L. Rev. 1 (1997).

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less, it still recently bears more challenges 4. Montevideo convention on the rights for many reasons which call for reforms. and Duties of States, entered into force 1934-12-26 Meanwhile, all current members of the UN 5. International legal materials, India and ought to emphasize why a lot of disputes Pakistan in Rann of Kutch Arbitration, are left unresolved, by which is meant Cambridge University press, https://www. they ought to consolidate the rules, inten- jstor.org/stable/20690361(Tribunals, Ter- sify the duties, responsibility and liability ritorial disputes, Territory, and sovereignty) of state members, and renew the rules so 6. BRIAN TAYLOR SUMMER, ”Territorial as to sidestep from partiality and favorit- Disputes at the International Court of ism. The biggest issue is that the rules and Justice” frontier disputes(Burkina Faso/ the institution of UN`s decision body oc- Mali)was based on Uti possedeti in casionally disregard the interest of small 1983, Duke Law Journal, p.19, resolution(1986.556-57.dec.22) countries and new members. Expressly, 7. LESZEK BUSZYNSKI, Contemporary legislating new rule of law, enhancing the Southeast Asia.Vol.25,No.3(dec.2003) effectiveness of international organization ,pp.343-362, ”ASEAN, the declaration as the UN, accenting value of sovereignty on conduct, and the south China Sea” to each states, and obedience under the https://www.jstor.org/stable/25798652 8. Applied issues in international land international rules in force shall be par- boundary Delimitation/ Demarcation amount attempts for all members, with- practices, https:// www.osce.org out any discrimination, in order to main- 9. Reconstructing the effective control Cri- tain full-fledged relationships, peace and terion in Extraterritorial Human Rights march towards a new world. Breaches, university of hull law school, https://repository.law.umich.edu/mjil/Ter- ra Nullius in the ICJ judgments on cases Abbreviation List concerning Ligitan/Sipadan, European UN : United Nations Journal of International Law, oxford Aca- ICJ : International Court of Justice demic 10. Analysis of international territorial dis- UNCLOS : United Nation Convention on putes, Florian Dupuy and Pierre- Marie the Law Of the Sea Dupuy, published online by Cambridge EEZ : Exclusive Economic Zone university press: 20 January 2017 https:// www.cambridge.org Bibliography 11. The legal principles of Uti posseditis ju- ris, Oxford Academic Journals, https:// 1. United Nations Charter and Statute of In- academic.oup.com/journals ternational court of justice in 1945, SAN 12. The use of Arbitration to settle Territorial FRANSCISCO Disputes, 67 Fordham L.Rev.3073(1990), 2. United Nations convention on the law of https:ir.lawnet.Fordham.edu/edu/flr/vol/ the sea, adopted in 1982 iss6/7 3. Previous judicial decisions and jurisprudence of International jurisdiction on settlement of territorial disputes.

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CURRICULUM VITAE OF AUTHORS

Juvelin Rezara Born in Toliara City, Madagascar, Africa, October 12, 1995. He has been learning Law since 2013 for his undergraduate degree in Madagascar, TOLIARA province, at TOLIARA University, Faculty of ”DEGS”, Department of Law, and has graduated as Master of Public Law from that University as well. Recently he is being selected to join Ph.D program in Southwest University of Political Science and Law, Chongqing, China. He speaks 4 languages (Malagasy, French, English and Chinese) and has actively participated in some research activities, mostly in international law field. One of them is his participation on Nelson Mandela World Human Rights Moot Court Competition, Geneva 2020.

Marcellino Gonzales Sedyantoputro Born in Malang on the 26th of October 1981. He is currently Judge in District Court of Larantuka, Nusa Tenggara Timur. He has also been appointed to be Officer in charge of Public Relation of Larantuka District Court. He had been invited as Guest Speaker in ”the Annual Conference 2013 of the China International Economic and Trade Law Society and The Forum of the International Economic Trade and Legal Development”, Chongqing, China, on November 2013. He was graduated from Law Faculty of Universitas Padjadjaran, Bandung. He had been granted a scholarship of ”YES-Program” from the People’s Republic of China and had received his LL.M degree from East China University of Political Science and Law (ECUPL), Shanghai, China. He is currently joining in PhD program in Southwest University of Political Science & Law, Chongqing, China.

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