By quanghung299
To understand the complex nature of disputes over the Paracel and
Spratly Islands, a comprehensive integration of the legal and the
political perspectives is required. The legal perspective allows us to
determine whether arguments of the claimants are valid and whether they
are actually supported by historical facts. This essay reviews and
analyses the arguments of the claimants from the perspective of
international law and argues for Viet Nam’s position.
The Paracel Islands are disputed between Viet Nam, the People’s
Republic of China (hereafter referred to as “China”), and the Republic
of China (“Taiwan”), all of which claim sovereignty over the whole
archipelago.
The dispute over the Spratly Islands involves Viet Nam, China, Taiwan,
the Philippines, Malaysia, and Brunei Darussalam (“Brunei”). While the
first three claimants assert their sovereignty over the whole
archipelago, the Philippines (since 1951) and Malaysia (since 1978) have
claimed parts of the archipelago, and Brunei has only claimed a single
feature (Louisa Reef, since 1984).
VIETNAM’S ARGUMENTS
The Paracel and Spratly Islands have been subject to the
sovereignty of Viet Nam by reason of terra nullius (land not belonging
to any sovereign State) effectively occupied by Viet Nam since the 16th
century
According to international law, the discovery of a
terra nullius
itself does not sufficiently legitimize any legal status for the
discovering State over that territory. To acquire sovereignty over the
terra nullius, a State must
effectively occupy that territory. There are two principles that govern this effective occupation. The first is the
principle of actuality, which requires that the State actually possesses the
terra nullius,
considers it as part of the State’s territory, and exercises State
authority and administration over it for a reasonable period of time. In
addition to the material (
corpus) element, the actual possession also requires the intentional (
animus) element of whether a State wishes to possess the
terra nullius. The second is the
principle of publicity, which requires that the possession by a State must be announced to, or acknowledged by, other sovereign States
1. An individual or a company cannot acquire sovereignty over a territory.
To demonstrate its actual possession of the Paracel and Spratly Islands, Viet Nam asserts the following arguments:
- The States of Viet Nam knew of the Paracel and Spratly Islands, grouped them together, named them as “Đại Trường Sa” (Hán-Nôm: 大長沙; English: Grand Long Sand), “Hoàng Sa” (黃沙, Yellow Sand), or “Vạn Lý Trường Sa” (萬里長沙, Ten-Thousand-Mile Long Sand), and considered them as part of Viet Nam’s territory.
- Throughout more than three hundred years, from the 16th to
the 19th centuries, the States of Viet Nam had continuously exercised
their sovereignty at least over the Paracel Islands by frequently
sending the Flotillas of Hoàng Sa and Bắc Hải to the archipelago, which
would stay there for several months every year for surveying and
exploiting resources in a systematic manner. Personnel from these
flotillas collected goods from wrecked ships, built temples, planted
trees to symbolize the State’s sovereignty, collected taxes, and
provided assistance to foreign ships in danger. These activities of the
Vietnamese States were totally free from any opposition or disputes from
other countries, including China, and contained both the corpus and animus elements of an actual possession.
Viet Nam uses official documents from the 17th century to support these arguments. These include
Đại Nam thực lục tiền biên (1600–1775) (大南實錄前編, The Early Chapter of The Chronicles of Đại Nam [Đại Nam is an ancient name of Vietnam]),
Toản tập Thiên Nam tứ chí lộ đồ thư (1630–1653) (纂集天南四至路图書, The Collection of the South’s Road Map),
Phủ biên tạp lục (1776) (撫邊雜錄, Miscellany on the Pacification at the Frontier),
Đại Nam thực lục chính biên (1848) (大南實錄正編, The Main Chapter of The Chronicles of Đại Nam),
Đại Nam nhất thống chí–the combinatorial record for geography and history of Đại Nam (1865–1882) (大南ー統誌, The Record of The Unified Đại Nam),
Hoàng Việt dư địa chí (1833) (皇越輿地誌, Geography of The Viet Empire),
Việt sử thông giám cương mục khảo lược
(1876) (越史通鑑綱目考略, Outline of The Chronicles of The Viet History),
official documents of the Nguyễn Dynasty on petitions and imperial
decrees, and many maps and documents made by other countries at that
time
2.
Jaseniew Vladimir and Stephanow Evginii, in their 1982 book entitled
“The Chinese Frontiers: From Traditional Expansionism to Present
Hegemonism”, listed the activities of the Vietnamese States in
continuously exercising their sovereignty over the Paracel and Spratly
Islands, and emphasized that “feudal States of Viet Nam had for long
annexed archipelagos such as the Paracels and Spratlys into their
State’s territory”
3.
France, after imposing its protectorate over Viet Nam,
represented Viet Nam in exercising and maintaining Viet Nam’s
sovereignty over the archipelagos
In 1899, then Governor-General of Indochina Paul Doumer submitted a
proposal to the Government of France to build a lighthouse in the
Paracel Islands. Financial difficulty, however, prevented this plan from
being realized.
On March 8, 1925, the Governor-General of Indochina affirmed that the Paracel Islands were part of French territory
4.
Surveillance and research trips thus had been organized in the Paracel
Islands since 1925 and in the Spratly Islands since 1927
5.
In 1930, the French authorities in Indochina sent a mission group to
set up a flag pole in the Spratly Islands. Since then until 1933, French
naval units established a garrison on the main islands of the
archipelago, including Spratly (
Trường Sa) (April 13, 1930), Amboyna Cay (
An Bang) (April 7, 1933), Itu Aba (
Ba Bình) (April 10, 1933), the Two-Island Group including Southwest and Northeast Cays (
Song Tử Tây, Song Tử Đông) (April 10, 1933), Loaita (
Loai Ta) (April 11, 1933), and Thitu (
Thị Tứ)
(April 12, 1933), together with small islets/cays surrounding these
islands. These occupation activities were proclaimed in the July 26,
1933 Official Gazette of the French Republic and the September 25, 1933
Official Gazette of Indochina, and did not meet any opposition from
China, the Philippines, the Netherlands (which occupied Brunei at that
time), or the United States of America. The United Kingdom of Great
Britain and Northern Ireland required explanation for these activities
and was satisfied with the response from France
6.
On December 2, 1933, Governor of Cochinchina (
Nam Kỳ) J. Krautheimer incorporated the Spratly Islands into the Province of Bà Rịa.
On March 30, 1938, Emperor Bảo Đại issued his imperial edict to
incorporate the Paracel Islands into the Province of Thừa Thiên. On June
15, 1938, the Governor-General of Indochina Jules Brévié issued a
decree on establishing an administrative unit in the Paracel Islands.
The French authorities then effectively occupied the whole archipelago
with a permanent guard unit. In 1938, a sovereignty stele was erected
with the inscription of the words “
The French Republic – The Kingdom of An Nam – The Paracel Islands, 1816 – Pattle Island – 1938”. A lighthouse, a meteorological station, and a radio station were also set up on Pattle Island
5.
Japan occupied the Spratly Islands in 1939, re-named the archipelago as
Shinnan Shoto
(新南諸島, the New Southern Islands), and put it under the jurisdiction of
Kaohsiung (Taiwan, which China had ceded to Japan in the Treaty of
Shimonoseki in 1895). France subsequently sent a diplomatic note to
oppose Japan’s military action and re-affirmed that the Spratly Islands
were part of An Nam’s territory
7. There was no protest by China against either Japan’s occupation of the Spratlys or France’s assertion of sovereignty.
Immediately after Japan surrendered in 1945, the French authorities
restored their presence in the Paracel and Spratly Islands. In June
1946, a subunit of the French armed forces landed to re-occupy the
Paracel Islands. In October 1946, the French battleship Chevreud arrived
in the Spratly Islands and installed a sovereignty stele on Itu Aba
Island
8. When the Republic of China sent its
troops to occupy Itu Aba Island in late 1946, France also opposed the
action and demanded China’s withdrawal from the archipelago.
In summary, as the protecting power representing Viet Nam’s interests,
France maintained Viet Nam’s sovereignty over the Paracel Islands
without any interruption. In the Spratly Islands, France considered the
archipelago as a
terra nullius and conducted its effective
occupation with the knowledge of other States without any opposition
from China, the Philippines, the Netherlands (which occupied Brunei at
that time), the United States of America or the United Kingdom of Great
Britain and Northern Ireland.
Viet Nam’s sovereignty over the two archipelagos has been continuously exercised and maintained since France left Indochina
With the Hạ Long Bay Treaty of 1949, France transferred the sovereignty
of Cochinchina, which included the Spratlys, to Viet Nam. On October
14, 1950 the government of France officially handed over the control of
the Paracels to Viet Nam’s Bảo Đại Administration.
On September 7, 1951, during the seventh session of the San Francisco
Conference on the Treaty of Peace with Japan, Prime Minister and Foreign
Minister Trần Văn Hữu of the State of Viet Nam officially affirmed Viet
Nam’s sovereignty over the Paracel and Spratly Islands. His statement
did not meet with any objection or reservation of opinion from any of
the 51 States attending the Conference. The Soviet Union requested an
amendment that envisaged the recognition by Japan of the sovereignty of
the People's Republic of China over a series of territories including
the Paracels and the Spratlys. This amendment was rejected by 46 of the
countries present, only Poland and Czechoslovakia supported the Soviet
request. Neither China nor Taiwan attended the Conference
7.
After the partition of Viet Nam by the 1954 Geneva Accords, the
administration of the Paracel and Spratly Islands was placed under the
Republic of Viet Nam (RVN, South Viet Nam). Immediately after the last
French troops’ withdrawal on August 22, 1956, the Republic of Viet Nam
promptly established its control over the Paracel and Spratly Islands,
and faced challenges from China, which disputed the archipelagos
9.
The RVN, as a successor to the French authorities for legal titles,
rights, and demands in the Paracel and Spratly Islands, had continuously
exercised its administration, surveillance, exploitation, and defence
over the two archipelagos through a series of actions such as erecting
flag pole and sovereignty stele in the Spratly Islands (August 1956),
incorporating the Paracel Islands into the Province of Quảng Nam (July
1961), affirming sovereignty over the two archipelagos by a statement of
the Ministry of Foreign Affairs (July 15, 1971), incorporating the
Spratly Islands to the Province of Phước Tuy (September 1973), granting
license for guano collection, and detaining China’s troops who were
disguised as fishermen in an attempt to occupy the western group of the
Paracel Islands (February 1959).
China’s complete occupation of the Paracel Islands by military forces
in January 1974 was strongly opposed by RVN, which took every
opportunity to affirm its sovereignty, including sending letter to
demand an intervention from the President of the United Nations General
Assembly and the Secretary-General of the United Nations, issuing
statements to re-affirm sovereignty at the meeting in March 1974 of the
Economic Commission for the Far East (precursor of the Economic and
Social Commission for Asia and the Pacific) and the Third United Nations
Conference on the Law of the Sea (July 1974), and proclaiming the White
Paper on the Paracel and Spratly Islands (February 1975).
The Socialist Republic of Viet Nam is the successor of the
two prior States and has had all legal titles over the Paracel and
Spratly Islands since July 2, 1976
As part of its exercise of sovereignty, in December 1982 Viet Nam established Hoàng Sa District (
huyện)
under the Province of Quảng Nam–Đà Nẵng for the Paracel Islands, and
Trường Sa District under the Province of Đồng Nai for the Spratly
Islands. Hoàng Sa and Trường Sa Districts are currently under the
jurisdiction of the City of Đà Nẵng and the Province of Khánh Hoà,
respectively. Viet Nam has also maintained permanent troops in the
Spratly Islands.
In addition, Vietnamese top officials have paid several visits and
joined surveillance trips to affirm Viet Nam’s sovereignty in the
Spratly Islands. These include a series of visits in May 1988 by
Minister of Defence Lê Đức Anh, Vice-Chairman of the State Council
Nguyễn Quyết, and Chief of the Armed Forces’ General Staff Đoàn Khuê.
More recent visits of top officials include those by Member of the
Politburo of the Communist Party of Viet Nam (CPVN) Phạm Thế Duyệt
(April 1998), and former Secretary-General of CPVN Lê Khả Phiêu
(November 2011).
Although the Paracel Islands have been completely occupied by China’s
troops since 1974, Viet Nam maintains all its legal titles over the
archipelago. The most recent assertion of sovereignty by Viet Nam is a
statement by Prime Minister Nguyễn Tấn Dũng in a televised testimony at
the National Assembly on November 25, 2011 in which he said that Viet
Nam has had sovereignty over the Paracel and Spratly Islands at least
since the 17th century, and that Viet Nam seeks to resolve the
sovereignty dispute through peaceful means according to international
law
CHINA AND TAIWAN'S ARGUMENTS
As China and Taiwan share the same arguments about the Paracel and Spratly Islands, they can be presented together as follows.
China was the first country to discover and occupy the Paracel and Spratly Islands as terra nullius
China asserted that it was the first country to find the archipelagos,
and this discovery was made as early as the reign of Emperor Wǔof the
Hàn Dynasty (2nd century BCE)
10. This
argument, however, is not backed up by official historical documents. On
this issue, Nguyễn Hồng Thao commented that “most of these documents
are travel accounts, monographs, and navigation books demonstrating
knowledge of ancient people about territories belonging to not only
China but also other countries”
9. Moreover,
in these documents, the territories which China now claims to be the
Paracels and Spratlys are named inconsistently, thus there are no
convincing arguments that those territories are really the Paracels and
Spratlys
5.
Moreover, the aforementioned assertion from China contradicts the encyclopedia
Gǔjīn TúshūJichéng(古今圖書集成, Complete Atlas on the Past and Present) completed by the Qing Dynasty in 1706. None of the maps in
Zhífāng Diăn(職方典, Dictionary of Administrative Units) of this encyclopedia, including
Zhífāng Zŏngbùtú(
職方總部圖, General Map of the Administrative Units, Number 1),
Guăngdōng Jiāngyùtú (廣東疆域圖, Territorial Map of Guăngdōng, Number 157), and
Qióngzhōufǔ Jiāngyùtú(
琼州府疆域圖,
Territorial Map of Qiongzhou Prefecture, Numer 167), indicate any
archipelagos farther to the south than Hainan Island. The islands
depicted in
Guăngdōng Tōngzhì (廣東通志,
Annals of Guăngdōng), made during the reign of Emperor Jiājìng of the
Ming Dynasty (1522–1567), also do not go beyond Qiongzhou (i.e. Hainan)
11.
The finding of ancient money and goods dated back to the Wáng Măng (王莽)
Era (9–23 CE) is also used as archaeological evidence by China to
support the early presence of its fishermen in the archipelagos.
However, even if these pieces of evidence are valid, Chinese fishermen’s
early presence was merely private/individual activities and thus cannot
constitute an effective occupation by a State as required by
international law.
China also claims sovereignty over the archipelagos by asserting the following events:
- The Sòng Dynasty (960–1127) sent its military patrols to the
Paracel Islands’ area. This assertion is based on Wǔjīng Zŏngyào (武经总要, Military General Records) with a prologue written by Emperor Rénzōng5.
However, according to Monique Chemillier-Gendreau, this record merely
indicates that there were geographical surveillance trips conducted by
the Chinese that went as far as the Indian Ocean, and that China knew of
the Paracel Islands. The document, however, does not demonstrate any
possession.
- In the 13th century, emperors of the Yuán Dynasty ordered
the astronomer GuōShŏujìng (郭守敬) to conduct astronomical observations in
many areas, including the Paracel Islands. However, Guō’s observations,
performed both inside and outside of China, were only astronomical
research activities and thus could not legitimize any sovereignty status
over the territories from which the observations were made.
- Wu Sheng (吳升), Guangdong navy’s rear-admiral,
commanded a patrol to the Paracel Islands in 1710–1712. However,
according to Monique Chemiller-Gendreau, this was in fact a patrol
around Hainan Island and did not go as far as the Paracels.
- The local government of Guangdong opposed a German ship
conducting research in the Spratly Islands in 1883. This opposition,
however, was only a diplomatic action and did not have any legal status
as China’s sovereignty had not been established9.
Therefore, historical evidence used by China to support its claim is
insufficient and weak according to international law. These pieces of
evidence do not demonstrate any occupation, effective administration, or
sovereignty
12. As far as the effective occupation of the Paracel and Spratly Islands as
terra nullius without protests from other States are concerned, Viet Nam’s arguments are stronger than those of China
13.
China’s arguments regarding the period from early 20th century to 1945
It was not until the beginning of the 20th century that China showed
any real efforts in occupying the Paracel Islands. In 1909, Admiral
LǐZhǔn (李准) commanded a small-scale landing (over a period of 24 hours)
in the Paracel Islands. His troops raised their flag and fired their
guns to mark China’s sovereignty
5 (which
raises the question of why LǐZhǔn’s fleet acted as if this was the first
time the islands were discovered despite China’s claim to have
possessed them long before?)
In 1921, the self-proclaimed Guăngzhou Military Government annexed the
administration of the Paracel Islands to Yái (崖) District. This action
did not meet any response as the Guăngzhou Military Government was not
recognized by any countries in the world.
In 1937, Japan occupied the islands offshore of Indochina despite the
opposition from the French authorities, renamed them to “Shinnan Shoto”,
and put them under the jurisdiction of Kaohsiung (Taiwan), which China
had ceded to Japan in the Treaty of Shimonoseki of 1895. Japan
maintained its occupation in the South China Sea’s archipelagos
throughout World War II.
In summary, with a limited effort in early 20th century to demonstrate
its sovereignty in the Paracel Islands, China neither actually and
continuously occupied nor effectively established administration over
the archipelago. At the same time, China had absolutely neither
influence nor interest in the Spratly Islands and did not protest when
Japan claimed and occupied them. In contrast, France was the only
country to protest against Japan’s occupation of the Spratlys. An
irrefutable evidence of China not considering the Spratlys to be its
territorry was China’s diplomatic note to France in September 1932
claiming that the Paracels “form the southernmost part of Chinese
territory”
5.
China’s arguments regarding the period after 1945
After Japan’s surrender in 1945, it withdrew troops from mainland and
all archipelagos of Indochina. France promptly restored its presence in
the Paracel Islands in June 1946. In July 1947, the Republic of China
sent its troops to Woody Island in the Paracels. In response, France
opposed this illegal occupation and sent a military unit to the Paracel
Islands to set up a garrison and built a meteorological station which
would be in operation for the next 26 years until the People’s Republic
of China used military force to occupy the archipelago in 1974.
At the end of 1946, the Republic of China sent its troops to occupy Itu
Aba Island in the Spratlys after France had erected a sovereignty
stele. The Chinese Civil War’s conclusion and the proclamation of the
People’s Republic of China in October 1949 forced the Republic of
China’s troops to leave Woody Island in the Paracels and Itu Aba Island
in the Spratlys while the French garrisons were maintained.
In April 1956, French forces were withdrawn from Indochina. In the
Paracels they were replaced by the Republic of Viet Nam’s troops
(i.e.,South Viet Nam’s troops). At the same time, the People’s Republic
of China’s troops secretly landed and occupied Amphitrite Group in the
eastern part of the Paracel Islands
5. On
September 4, 1958, China issued a statement on its twelve-nautical-mile
territorial waters, including around both the Paracel and Spratly
Islands. On January 19, 1974, China used its military forces to occupy
completely the Paracel Islands. Until then, the Spratly Islands “
were completely out of China’s influence,
let alone China’s intention to control them”
7. In February 1988, China sent troops to some islands in the Spratlys, and a month later, seized six islands from Viet Nam
5.
All of these events make China a unique claimant in the Spratly Islands
for its exclusive claim over the whole archipelago and its absolute
lack of control in reality until 1988
7.
China then established its 33rd province including Hainan Island, the
Paracels, and the Spratlys in April 1988, occupied one more small island
in the Spratly Islands in May 1989
5, and seized Mischief Reef of the Philippines in February 1995.
China’s main approach to seize control over the islands is to use
military force, an approach which has been condemned by international
law since early 20th century. The Declaration on Principles of
International Law Concerning Friendly Relations and Co-operation among
States in Accordance with the Charter of the United Nations, adopted on
October 24, 1970, also states explicitly that “The territory of a State
shall not be the object of military occupation resulting from the use of
force in contravention of the provisions of the Charter. The territory
of a State shall not be the object of acquisition by another State
resulting from the threat or use of force. No territorial acquisition
resulting from the threat or use of force shall be recognized as legal”.
The use of military force is therefore against international law and
cannot legitimize any legal status for China in the Paracel and Spratly
Islands.
China’s use of statements by the Democratic Republic of Viet Nam
China maintains that Viet Nam recognized China’s sovereignty over the
Paracel and Spratly Islands during the Viet Nam War by statements of the
Democratic Republic of Viet Nam (North Viet Nam) including:
- A verbal expression by Deputy Foreign Minister Ung Văn Khiêm
on June 15, 1956 to a standing member of the Embassy of China in Ha Noi
that these archipelagos are part of China’s territory in terms of
history. However, China fails to provide the meeting’s minutes that
contains this expression by Deputy Foreign Minister Khiêm14.
It should also be noted that, according to international law, deputy
foreign ministers do not by default have the authority to represent a
State in such matters.
- A diplomatic note by Prime Minister Phạm Văn Đồng on
September 14, 1958 in which China’s claim of twelve-nautical-mile
territorial sea was said to be approved without any reservation of
opinion regarding the Paracel and Spratly Islands.
- On May 9, 1965, in response to the the escalation of the
Viet Nam War and the establishment of tactical zones in the South China
Sea by the United States, the Democratic Republic of Viet Nam’s
newspaper Nhân Dân (The People) stated that the
Paracel Islands were under the sovereignty of China. It should be noted
that, according to international law, newspapers are not considered
representatives of a State.
Whether these statements have legal implications for the Socialist
Republic of Viet Nam’s sovereignty over the Paracel and Spratly Islands
will require further studies in international law. However, the author
would like to offer a perspective on these statements as below.
During the Viet Nam War (1954–1975), there were two States co-existing
in Viet Nam, namely, the Democratic Republic of Viet Nam (DRVN) in the
North, and the Republic of Viet Nam (RVN) in the South. The co-existence
of these two States is agreed upon by many leading international
laywers, such as James Crawford, Robert Jennings, Nguyễn Quốc Định,
Jules Basdevant, Paul Reuter, Louis Henkin, and Grigory Tunkin
14.
Acccording to the DRVN and RVN’s understanding of the 1954 Geneva Accords, and to the
de facto administration,
the RVN was the successor State to the Vietnamese titles over the
Paracel and Spratly Islands. As mentioned above, the RVN had
continuously controlled, exercised administration, and affirmed
sovereignty until China’s occupation of the Paracel Islands by force in
1974, and until the Provisional Revolutionary Government of the Republic
of South Viet Nam’s takeover of the Spratly Islands in 1975. The DRVN
was a third party in the dispute between the RVN and China over the
Paracels, and in that between the RVN, the Philippines and China over
the Spratlys.
First, given that it was the RVN, and not the DRVN, which was the
successor State to the Vietnamese titles over the Paracel and Spratly
Islands, the DRVN did not have the duty to defend these titles.
Therefore, its conduct cannot be interpreted as acquiescence to China or
the Philippines’ claims. Furthermore, as a third party, the DRVN was
not in dispute or negotiation with any other State over these
archipelagos. Therefore, no statement made by the DRVN can be said to
have been made in the context of a dispute or negotiation over these
archipelagos between it and China or the Philippines.
Second, the 1958 diplomatic note of the DRVN’s Prime Minister Phạm Văn
Đồng and other DRVN’s statements on the issue did not affect RVN’s
titles over the archipelagos. Any legal obligation that might arise from
the DRVN’s statements could only apply to the DRVN, not to the RVN.
Third, let us consider whether the DRVN’s statements gave rise to any
binding obligations for itself? The statements made by DRVN on the issue
are unilateral ones. According to international law, to determine
whether a unilateral statement might give rise to binding obligations,
three main conditions must be considered, namely,
-
the context in which the statement was made;
-
whether the unilateral statement is explicit, and whether the party
making the statement explicitly expresses the intention that it wishes
to be bound by its own statement; and
-
whether there has been detrimental reliance for the other party, i.e.,
damage or loss caused by that party’s reliance on the unilateral
statement.
In addition, judgements by the International Court of Justice require
that the unilateral statements are made continuously over a prolonged
period of time for it to give rise to binding obligations
15.
It is not difficult to see that the DRVN’s statements on the issue lack
most of these prerequisite conditions, and therefore did not give rise
to any binding obligations for the DRVN. Regarding the criterion of
context, these statements were not made in the context of the DRVN and
China contesting the Paracels and Spratlys with each other. Regarding
the criterion of explicitness, the only authoritative statement from the
DRVN – the diplomatic note by Prime Minister Phạm Văn Đồng, did not say
anything explicit about the Paracels or Spratlys. Regarding the
criterion of detrimental reliance, China has not taken any actions that
could be said to be detrimental reliance on the DRVN’s statements.
As the successor State to the DRVN and the RVN (and subsequently the
Provisional Revolutionary Government of the Republic of South Viet Nam)
since 1976, the Socialist Republic of Viet Nam (SRVN) succeeded to both
the sovereignty of the Paracel and Spratly Islands from the RVN and the
unilateral, non-binding statements from the DRVN. Since the latter is
non-binding, the SRVN is free to choose to uphold the former. The
re-unified Vietnamese State, therefore, has full legal basis to assert
its sovereignty over the Paracel and Spratly Islands.
THE PHILIPPINES' ARGUMENTS
The Philippines claims over about 60 islands, reefs, and submerged banks in the Spratly Islands
16.
The first assertion was made in 1947 by Tomás Cloma, a Philippine
citizen, when he claimed to have discovered a group of islands and reefs
300 nautical miles to the west of Palawan Island.
On May 17, 1951, the President of the Philippines claimed that islands
in the Spratlys should belong to the closest territory, which is the
Philippines
9. This claim was opposed by the other countries.
It was not until March 1956 that Tomás Cloma resumed his “work to
discover” these islands. He sent a group of 40 sailors to land on many
islands in the Spratlys to mark their possession. The flag of the
Philippines was raised on some islands including Itu Aba
17.
On May 11, 1956, they proclaimed Kalayaan (Freedom-land) as the new
official name of the islands and Tomás Cloma as the President of the
Supreme Council of the State of Kalayaan
7. This proclamation was opposed by all relevant countries
10.
Tomás Cloma sent a letter dated May 15, 1956 to the Republic of the
Philippines’ Minister of Foreign Affairs to announce that he and his
group had occupied a 64,976-square-mile area to the west of Palawan
Island, that this area was outside of Philippine territorial waters and
was not subject to the jurisdiction of any countries, and that this area
had been found and effectively occupied as a
terra nullius. He
also included with the letter a map of his claimed area. Although the
names of these islands were completely changed, Cloma’s map indicates
that the Kalayaan area includes most of islands in the Spratlys
8.
The Philippines’ Minister of Foreign Affairs subsequently declared in a
press conference on May 19, 1956 that the islands in the Spratlys
including Itu Aba and Spratly are subject to the Philippines’
sovereignty as they are closest to the Philippines. This declaration met
with objections from Sai Gon, Beijing, and Taiwan. When Taiwan showed
its intention of deploying troops to the Spratly Islands, Manila
promptly sent a notice to Taiwan and South Viet Nam and said that it had
not officially claimed sovereignty over the area.
On July 6, 1956, Tomás Cloma sent a letter to the Philippines’
government to ask that Kalayaan become a protectorate of the
Philippines. In his response, the Philippines’ Minister of Foreign
Affairs stated that any island in the area that is not within the group
of seven islands referred to as “the Spratly Islands” by international
community can be considered as
terra nullius, and thus can be
freely exploited and inhabited by citizens of the Philippines or any
other countries. To retaliate against Tomás Comas’ activities, South
Viet Nam sent a patrol ship to the Spratly Islands in August 1956.
The first clash between Taiwan’s navy and Tomás Cloma’s group occurred
on October 1, 1956 in North Danger Shoal. Tomás Cloma’s group ended up
having all their weapons stripped while the Philippines’ government did
not intervene.
During 1970–1971, President Ferdinand Marcos ordered the Philippines’
navy to occupy some islands in the Spratlys including Thitu, Nanshan,
and South Rock. The Philippines also organized patrols in many small
islands and reefs in the northeast of the archipelago
7.
After the Philippines attempted once more but failed to occupy Itu Aba
Island in 1971, it continued to object to Taiwan’s occupation of the
island with three arguments, namely, (1) the Philippines’ sovereignty
over the islands based on Tomás Cloma’s discovery of
terra nullius, (2)
de facto
occupation without notice by China of many islands under the
jurisdiction of the Allies, and (3) the Philippines archipelagic waters
containing the Spratlys
10. The Philippines
also expanded its occupation to 1,000 troops and built an airport on
Thitu Island. Tomás Cloma transferred the “sovereignty” of the islands
to the Philippines’ government in 1974. By that time, the Philippines
had acquired control over four islands in the Spratlys.
In 1978, the Philippines deployed troops to seven islands in the
Spratlys. The President of the Philippines then signed Decree 1596
12 on June 11, 1978 to annex these seven islands to the Philippines’ territory. The decree also states that “
these
areas do not legally belong to any state or nation but, by reason of
history, indispensable need, and effective occupation and control
established in accordance with the international law, such areas must
now deemed to belong and subject to the sovereignty of the Philippines”, and that a 200-nautical-mile economic exclusive zone was set for these islands
10.
In a press conference on September 14, 1979, the President of the
Philippines stated clearly that his country would maintain its claim
over the seven islands that it occupied but not all of the Spratly
Islands. The Philippines’ President also re-affirmed that these seven
islands had never been occupied, known of, inhabited, or even marked in
any maps before World War II, and they had thus been
terra nullius until the Philippine’s occupation.
On March 10, 2009, the President of the Philippines promulgated
Republic Act 9522 to define the archipelagic baseline of the
Philippines, in which most of the Spratly Islands was included in the
Philippines’ regime of islands. China quickly objected while Vietnam
re-asserted its claims to the Spratlys but did not mention the Act
specifically.
Arguments from the Philippines, in general, do not have a solid basis.
The Philippines maintains that the islands it claimed were
terra nullius.
Even if we ignore those events in the Spratlys in previous centuries,
the Spratly Islands were effectively occupied since 1930 by France
(French troops had been on Thitu Island since April 1933) and
transferred to Viet Nam without objection from any countries including
the Philippines when France left Indochina. Also, the claim that these
islands should belong to the Philippines on the basis of proximity is
not supported by international law. Moreover, the Philippines’
occupation and claim to the Spratly Islands have been opposed by
relevant countries from the beginning. Therefore, the involvement of the
Philippines in these islands cannot constitute an effective occupation
without disputes as required by international law.
MALAYSIA’S ARGUMENTS
In 1978, Malaysia made its first claims for sovereignty over Amboyna
Cay, Mariveles Reef, and Commodore Reef on the basis that these features
lie on its continental shelf. The 1979 map of Malaysia depicted some
islands in the Spratlys as Malaysia’s territory.
Malaysia started its first military occupation in June 1983 by taking
control of Swallow Reef, which is within its claimed area. In September
1983, Malaysia officially declared its intention to occupy James Shoal,
Swallow Reef, Ardasier Reef, and Mariveles Reef, and asserted that these
islands/reefs lie within Malaysia’s “marine economic zone”
7.
In December 1986, Malaysia’s troops occupied Mariveles and Ardasier
Reefs. In June 1999, Malaysia expanded its occupation to a total of
seven islands/reefs/shoals by taking control over Erica Reef and
Investigator Shoal.
In general, Malaysia cites the international law’s regulations of
continental shelf to support its claim in the Spratly Islands. However,
Article 76 of the 1982 United Nations Convention on the Law of the Sea
(UNCLOS) defines clearly that: “
The continental shelf of a coastal State comprises of the seabed and subsoil of the submarine areas
that extend beyond its territorial sea throughout the natural
prolongation of its land territory to the outer edge of the continental
margin, or to a distance of 200 nautical miles from the baselines from
which the breadth of the territorial sea is measured where the outer
edge of the continental shelf does not extend up to that distance”. This definition
does not govern the above water islands/reefs/cays on the continental shelf and thus cannot provide legal ground for Malaysia’s claims to any feature that is above high tide.
The legal question for a feature that Malaysia claims is whether it is
above high tide or not. This question is critical because a State can
only claim and acquire sovereignty over islands that are naturally above
high tide. If a feature is submerged or is a low-tide elevation then
neither Malaysia nor any other State can claim sovereignty over it
18,19,
and Malaysia can only claim certain restricted rights as prescribed by
UNCLOS. And if this is the case, we shall have to resolve the question
of whether that feature lies within Malaysia’s exclusive economic zone
or that of another State.
BRUNEI’ ARGUMENTS
Brunei only claims Louisa Reef based on the argument that this reef is within its exclusive economic zone.
Article 56 of the 1982 UNCLOS, however, only acknowledges that a coastal State has (1) “
sovereign
rights for the purpose of exploring and exploiting, conserving and
managing the natural resources, whether living or non-living, of the
waters superjacent to the seabed and of the seabed and its subsoil, and
with regard to other activities for the economic exploitation and
exploration of the zone, such as the production of energy from the
water, currents, and winds”, and (2) jurisdiction to establish and
use artificial islands, installations and structures for marine
scientific research, and protection and preservation of marine
environment. The use of UNCLOS to claim sovereignty over islands within
the exclusive economic zone is an aberrant interpretation of the
Convention. Therefore, the argument from Brunei, similar to that of
Malaysia, is unconvincing if applied to islands that are naturally above
high tide.
The legal question in this case is whether Louisa Reef is an island
naturally above high tide, or is it submerged or is a low-tide
elevation. If Louisa Reef is submerged or is a low tide elevation then
neither Brunei nor any other countries can claim sovereignty over it
18,19,
and Brunei can only claim certain restricted rights as prescribed by
UNCLOS. And if this is the case, we shall have to resolve the question
of whether Louisa Reef lies within Brunei’s exclusive economic zone or
that of Viet Nam or Malaysia.
Conclusion
In the light of international law, the above comparative analysis of
perspectives from different claimants of the Paracel and Spratly Islands
reveals that the most logical and best-supported arguments are those of
Viet Nam. In reality, however, the prolonged and complicated nature of
disputes in area, as well as the involved parties’ intention, make
dispute resolution through legal means a very difficult approach.
Instead, an integration of legal, historical, political, and economic
solutions is needed to resolve the issue. And any resolution for the
South China Sea’s dispute would require efforts and good will of the
involved parties, particularly China, which has been objecting to any
proposal made by Viet Nam to bring the Paracel and Spratly Islands’
issue to the International Court of Justice.
Nevertheless, the legal perspective of the issue is still of vital importance.
Nguyễn Thái Linh
LL.M.(University of Warsaw, Warsaw, Poland)
Dương Danh Huy
Translated by Nguyễn Trịnh Đôn
-------
Acknowledgement
The authors wish to thank Nguyễn Đức Hùng and Lê Vĩnh Trương for their comments and discussion.
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NEW YORK CITY—Dozens of Filipinos and Vietnamese Americans joined forces as they called for a boycott of Chinese products and urged Beijing to stop its creeping aggression toward countries around the West Philippine Sea (South China Sea).
