Evidential Effect of Historical Documents in Territorial Dispute Settlement
HE Tian-tian1,2
1. Institute of International Law, Chinese Academy of Social Sciences, Beijing, 100720; 2. Center for Maritime Law Research, Chinese Academy of Social Sciences, Beijing, 100720
Abstract：We cannot formulate solutions to settle territorial disputes without examining historical facts or evidence. The observation of existing rules, theories and practices reveals that there are no rules regarding using historical documents as evidence in the settlement of territorial disputes. International courts are also cautious about the evidential effect of historical materials and have not yet explicitly expressed opinions on this issue in any of the cases they handle. Historical materials are challenged in terms of their completeness and authenticity when they are intended to be used as valuable evidence. Over years, international courts have developed a “legal title /effective control” approach, with which the historical materials proving legal title are put before those proving effective control in terms of evidential effect. To convincingly justify the historical materials are relevant, essential and important, the claimant needs to focus on the information reflected in the historical sources, and refer to the substantive rules and relevant logic, exploring and reiterating their connection to the historical context of the case, and combing through the combined impacts of various historical evidence on the same historical fact from different angles. Neither the conventional theory of territorial acquisition nor the analytical approach of “legal title/effective control” is the “settled law” for territorial issues in international law. Thinking about the territorial management models of different countries in different periods may shed a new light on the effect of evidence from a historical perspective.
[1] Hugh Thirlway.Territorial Disputes and Their Resolution in the Recent Jurisprudence of the International Court of Justice[J].Leiden Journal of International Law,2017,31(1):3. [2] Anna Riddell, Brendan Plant.Evidence before the International Court of Justice[M].London:British Institute of International and Comparative Law,2009. [3] Durward V.Sandifer.Evidence before International Tribu-nals[M].Charlottesville:University Press of Virginia,1975. 197. [4] Shabtai Rosenne.The Law and Practice of the International Court(1920-2005),4th edition, volume 3[M].Leiden, Boston: Martinus Nijhoff,2006.1039-1040. [5] W. Michael Reisman,Christina Parajon Skinner.Fraudulent Evidence before Public International Tribunals:The Dirty Stories of International Law[M].Cambridge:Cambridge University Press.2014.5. [6] 易延友. 证据法的体系与精神——以英美法为特别参照[M].北京:北京大学出版社,2010.100. [7] Marcelo G. Kohen, Mamadou Hébié.Research Handbook on Territorial Disputes in International Law[M].Cheltenh-am:Edward Elgar Publishing Limited,2018. [8] James Crawford.Brownlie's Principles of Public International Law.8th edition[M].Oxford: Oxford University Press, 2012. [9] Malcolm N. Shaw.International Law.8th edition[M].Cambridge:Cambridge University Press,2017.363. [10] R. Y. Jennings.The Acquisition of Territory in International Law[M].Manchester: Manchester University Press, 1963. [11] 宋岩. 领土争端解决中的有效控制规则研究[M].北京:中国政法大学出版社,2018.
2022, Vol. 39 
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