Sovereignty over the Paracel and Spratly Islands

Chapter I Background Information on The Paracels and Spratlys

In order to clarify the vexed question of international law, the central issues of which have just been outlined, it is essential to provide a geographical description of the territories, a breakdown of the various elements comprising the legal issues and the main strands of the chronology of events on which the legal argument may be based. GEOGRAPHICAL BACKGROUND The island territories of the South China Sea are not all concerned by the current disputes, which relate to only two archipelagos, now easily identifiable on nautical charts. The factual information collated here will be set forth separately for the Paracels and for the Spratlys. The enormous difficulty of precisely identifying all the elements comprising these complex geographical configurations must be underlined. In addition to the main islands, there are any number of rocks, sandbanks, atolls, and coral reefs, some of them tiny. The topography is obscured by the coexistence of different systems for naming the islands. Chinese, Filipino, Vietnamese, French and English names have been superimposed on each other, without any clear correspondence between them. Referring to one system of names rather than another is not without symbolic significance. In this book we shall therefore use the English names, the least suspect since they do no not correspond to any particular claim.

General facts Both archipelagos form part of four groups of coral islands scattered over the South China Sea.1 1

The use in this book of this name, still widely used in geography textbooks although nowadays contested by Vietnam, obviously does not imply any support for Chinese claims regarding delimitation.

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Chapter I

The other two (Pratas Island and Macclesfield Bank) are not the subject of any dispute over sovereignty. The archipelagos sprawl over a sea bounded by many territories. China, Vietnam, Malaysia, Brunei and the Philippines form a crown around it. These lands have little in the way of a continental shelf. The exceptions are China, and to a lesser extent Vietnam, especially south-west Vietnam. The Paracels and Spratlys, however, lie well beyond the geological continental shelf, in the middle of a maritime zone which reaches a depth of over 1,000 metres close to the Paracels and around 3,000 metres north-east of the Spratlys. From the legal standpoint, such facts are important, since no neighbouring State is able to claim rights over the archipelagos on the grounds that they belong, in geomorphological terms, to the continental shelf of any particular country. The islands and islets do not emerge from a zone of deep ocean floor which may be considered to be the natural prolongation of the land territory of a particular State. This argument, as will be seen in the following chapters, is however immaterial, since sovereignty over an island formation is independent of the links between that formation and the subsoil of the sea. A few facts will underline the islands' geopolitical or geostrategic importance, which stems from the major role played by this maritime zone in global navigation. To the south-west, the South China Sea connects with the Indian Ocean via the Straits of Malacca and Singapore, to the north-east it meets the East China Sea, which in turn connects with the Sea of Japan via the Strait of Korea. No global maritime power can afford to ignore this sea. A glance at the map reveals that all maritime traffic traversing this sea is obliged to pass between the two archipelagos. The importance of sovereignty and consequently strategic control over these groups of islands therefore needs no emphasis. Lastly, the islands are uninhabited. Their small size has never allowed any human development. Traditionally they have served as outposts for seasonal fishermen. That aside, they have harboured only garrisons or, very recently in the Paracels, a population of administrative origin, part of the enormous drive to develop an infrastructure.

Background Information

17

The Paracels

Essentially, the Paracels lie between latitude 16° and 17° north and longitude 111° and 113° east. They consist of two main groups: the Amphitrites and the Crescent group, which lie some 70 kilometres from one another.2 Added to these are a number of islands and isolated rocks. In the west, the Crescent Group consists of 5 main islands: Robert Island (0.32 square kilometres), Duncan Island (0.48 square kilometres), Palm Island (0.09 square kilometres), Drummond Island (0.41 square kilometres), on which there are 5 tombs, and Pattle Island (0.3 square kilometres), which displays the remains of a landing stage and a channel. Some 12 kilometres away lies Money Island (0.5 square kilometres), then further south, Triton Island. Each island has its own coral reef, with openings enabling shallow-bottomed craft to beach. In the west, the Amphitrite group consists of Woody Island, Rocky Island, South Island, Middle Island, North Island, Tree Island, and to the east of this group, Lincoln Island. The largest of them is Woody Island, which is no more than 4 kilometres long and 2 to 3 kilometres wide.3 Apart from the two groups of islands mentioned above, the archipelago as a whole consists of over 30 islets, sandbanks or reefs and occupies some 15,000 square kilometres of the ocean surface, which explains the extremely dangerous nature of navigation in this vicinity, a fact borne out, travellers say, by the number of wrecks. It is the wrecks that signal the danger, in particular the steam kettles, which last longer thanks to their weight and which, owing to their size, can be spied from a long way off, surprising the uninitiated, who are thus at first at a loss to explain the nature of these protuberances on the reefs.4 Geologically speaking, the scientific studies undertaken during the period of French colonization by the da Lanessan, the results of which were collated in the notes published by Doctor A. Krempf, Director of the Oceanographic Service, indicate that the submarine shelf from which the reefs and islets of

2 3 4

See map in Annex 3. See list of islands and islets in Annex 4. P.A. Lapicque, A propos des lies Paracels (Saigon, Les editions d'Extreme-Asie), p. 3.

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Chapter I

the Paracels emerge lies at a depth ranging from 40 to 100 metres, and is enveloped in a layer of coral. This is a surface which was formed in the period of glaciation and which, once again flooded by sea water after the glaciers retreated, constantly provided optimum conditions for the development of coral. At present, it is uniformly covered in living coral, sand and coral gravel. (Notes by Doctor Krempf). The climate is hot and humid, with abundant rainfall. There are frequent mists. The islands are swept by winds (which give rise to currents, further complicating navigation) and the area is frequently subject to typhoons. There is vegetation on all the islands: phosphorite growths, trees, short grass and bushes. On some of the islands there are freshwater springs. There are vast numbers of birds and a great many turtles. The economic resources can be divided into three groups: - The resource of the future is obviously the offshore petroleum deposits. The area is said to be promising, though as yet no precise data on actual expectations have been published. - The resource which has long been coveted and indeed still is and which has been exploited to some extent is the phosphate deposits. This is what the ground is made of in all the islands in the archipelago which are high enough above sea level for vegetation to have developed. These deposits have been formed from an originally calcium carbonate soil (coral). This soil has been covered by birdlime containing phosphoric acid and the humid climatic conditions have transformed it into phosphates. The layer of phosphates which varies in content (23 to 25 per cent in some places, 42 per cent in others) is frequently over 1 metre thick. This phosphate was mined between 1924 and 1926 by Japanese companies (and in some cases the deposits have been completely depleted, Robert Island being an example). The damage done at that time seems to have been substantial (trees felled, vegetation destroyed). In 1956, the Saigon administration authorized a Vietnamese industrialist, Mr Le Van Cang, to mine the phosphates in the Paracels. The Vietnamese Fertilizer Company was to continue this process from 1960 to 1963. The most recent detailed data available before the advent of Chinese control are those given by an engineer, Tran Huu Chan (August 1973), on the occasion of a mission undertaken at the initiative of the Saigon administration by Japanese and Vietnamese experts.5 This mission, which was concerned only with the Amphitrites (the Crescent group having been 5

See the report of this mission in 'Les archipels Hoang Sa et Truong Sa', Le Courrier du Vietnam, Hanoi, 1984, pp. 52 et seq.

Background Information

19

occupied by China since 1956) found that there were still major phosphate reserves left, though the conditions for mining them depended on a more detailed examination of the samples taken. - The third - and renewable - resource (except in the case of uncontrolled exploitation which would lead to the local disappearance of certain species) is that of the marine fauna. However, the hope that there might be pearl oysters, about which there had been much talk before World War II, does not seem to have been borne out. Trawl fishing (which would offer a high return) hardly seems possible owing to the chaotic and jagged coral seabed. On the other hand, fishing for turtles has long been undertaken both by Chinese fishermen from a number of ports in the south of Hainan and by Vietnamese fishermen. However, this is carried out on a small scale, not an industrial one, the resulting income providing no more than a living for the fishermen's families. Since the full-scale Chinese occupation of the archipelago, and particularly from 1974 onwards, when the Chinese occupied the western part of the islands (the Crescent group), Chinese activities throughout the archipelago have intensified. Woody Island, the only one with a surface area sufficient to support costly infrastructures, has been equipped with an airstrip and an enlarged harbour. And a harbour was built by the Chinese Navy on Triton Island in 1982.6 The Spratlys Once again we encounter a vast underwater platform in the middle of the South China Sea, though much further south than the Paracels, cut off from any mainland or major island territory by ocean trenches up to several thousand metres deep. It is not easy to identify the archipelago clearly (even less so than in the case of the Paracels) because the region includes widely scattered islands, islets, banks and rocks. There are over one hundred of them, and the total surface area encompasses almost 160,000 square kilometres of water (over ten times bigger than the Paracels). Its northern limit is latitude 12° north and its eastern limit longitude 111° east. Various documents and nautical charts reveal the existence of 26 main islands or islets, and many rocky outcrops and sandbanks of varying size, named in several languages.7 The respective claims will be studied and 6 7

See Chi Kin Lo, China's Position Towards Territorial Disputes. The Case of the South China Sea Islands (London, Routledge, 1989), p. 118. See the list of islands in Annex 4.

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Chapter I

examined later. We shall merely note at this point that not all the islands are occupied. Some are occupied by the Philippines, Malaysia, Taiwan, China and Vietnam respectively. The archipelago also includes seven groups of rocks, identified on charts, which remain above the water at high tide. The islands are small. Some are bare of vegetation, covered only by sand and guano. Others have a few bushes, some a few coconut palms. Observers note that the islands are more reminiscent of Oceania than of East Asia. During the dry season, the climate is torrid. There are two annual monsoons. If wells are sunk, it is possible to find fresh water and to cultivate crops, at least such crops as withstand the heavily saline soil. A report by the Vietnamese exploratory expedition of 1973 stated that some islands were swarming with mosquitoes and rats. Fishery resources appear to be considerable throughout the archipelago. The distance from terra firma might cause problems (albeit not insurmountable) were large-scale fishing to be carried out. The islands do not have and have never had a native population. All the States which have staked claims currently maintain garrisons on one island or another. When they administered the islands (between the two World Wars) the French noted the sporadic presence of a few Chinese fisherman from Hainan.8 As in the Paracels, and for the same reasons, the islands have seen a build-up of guano, a coveted resource, and one which was mined by the Japanese prior to World War II. The reserves of phosphorus are currently estimated at 370,000 tonnes. The promise of oil is repeatedly mentioned in the international press and appears to have a solid foundation. According to Chinese sources, the Spratlys are thought to harbour a reserve of 25 billion cubic metres of gas and 105 billion barrels of oil.9 The main islands and rocks are: North Danger Group, comprising 4 islets (North Reef, North-East Cay, South-West Cay and South Reef), one of which is about one kilometre long; Trident Shoal, measuring approximately 14 by 11 kilometre; Lys Shoal; Thi Tu Island made up of two atolls, the largest of which measures about 1 by 1.5 kilometres, having vegetation and fresh water; Subi Reef, a coral ring; Loai Ta Island, a small island 0.3 kilometre long surrounded by extensive shallows; Tizard Bank, comprising two main islands and three reefs, including Itu Aba Island which measures 1 by 0.4 kilometre. Itu Aba is the most important island, having wells sunk by 8 9

See 'Inoccupation d'ilots de la mer de Chine' (1933) Asie Fmncaise no. 313, at p. 266. Newsweek, 15 May 1978, 'Treasure Islands'; China Daily, 24 December 1984.

Background Information

21

the Japanese, and vegetation. Nam Yit Island is 0.5 kilometre long. Discovery Great Reef is ring-shaped, and visited by fishermen of the region. Fiery Cross Reef is an area of shallows approximately 26 kilometres long, forming a semi-open lagoon containing some higher reefs. London Reef complex comprises 4 shoals. Spratly Island is a small island 0.75 by 0.4 kilometre, with water and vegetation. It is also a source of guano and a breeding ground for turtles. Amboyna Cay is covered with vegetation and guano. Rifleman Bank is a large bank 56 by 24 kilometres, although it does not normally stand clear of the water. Further south, near the Malaysian coast, the group of banks and reefs known as James Shoal is thought to be the site of a substantial reserve of gas and oil. The centre of the archipelago is 'dangerous ground', so dangerous that most vessels will not go near it. The States competing to annex these minute outcrops have all gained a foothold here or there, although few of them would support facilities. The Taiwanese Navy maintains a garrison of almost one thousand men on Itu Aba Island. Vietnam controls Spratly Island, its principal power base in the area. The Philippines are present on Thi Tu Island and Loai Ta Island. The People's Republic of China, a late arrival (1988-1989) in this archipelago so far from its coast, has been obliged to found its claims on mere sandbanks which are not always above sea level at high tide. Major construction work has been carried out on Fiery Cross Reef, for exampie, despite the fact that this thankless spot lies under 50 centimetres of water during exceptionally high tides. A wharf, roads and a helicopter hangar have all been constructed, coral formations having been dynamited and the ground level raised over a sufficiently large area. This completes our brief review, based on available documentation, of the archipelagos so hotly disputed and so stridently claimed by various States. THE LEGAL ISSUE In order to clarify the issue of title to sovereignty over the two groups of islands, we need to ask a first set of questions on the nature of the disputed territories and the nature of the dispute, then consider the applicable law for settling the dispute on a satisfactory basis.

22

Chapter I Category of territory and identification of the dispute The nature of the disputed territories

Examining the nature of the territories means asking two questions: a) Do they constitute lands which are capable of appropriation? The question is all the more relevant in that the archipelagos are composed of a sprinkling of banks, islets and rocks, among which there are a few proper islands. It needs to be asked, since the life of the oceans and geological movement within the earth's crust may trigger off abrupt or gradual upheavals perhaps obliterating certain territories which used to protrude above the water. However, the reply would not seem to be in doubt for either archipelago. The concept of land which is capable of appropriation was raised before the International Court of Justice in the Minquiers and Ecrehos case.10 For scholarly opinion, to be capable of appropriation an island territory must apparently present at high tide a surface of land clear of the water which is large enough to be habitable in practice. Some authors add that the islands must also be shown on geographical maps.11 The debates at the Third United Nations Conference on the Law of the Sea revealed the great complexity of the problem. Article 121 of the Montego Bay Convention of 10 December 1982 uses a geological criterion, 'a naturally formed area of land'. Artificial islands are thus excluded. On the other hand, the nature of the area of land matters little. 'Mud, silt, coral, sand, madrepore, rocks, etc., anything makes an island.' l2 There is also a hydrographic criterion: protruding above the high-water line. This distinguishes islands from low-tide elevations. However it does not resolve the difficulty of defining high water, nor whether it includes exceptional tides. Both archipelagos contain many islands, but also islets, sandbanks, coral reefs and rocks. Although the status of certain fringes is doubtful, there is no doubt that the main islands, clearly identified on nautical charts, are capable of appropriation. The fringes are then seen as accessories to the main islands. 10 11

International Court of Justice, Reports, 1953, at pp. 49 and 53. See Gilbert Gidel, 'La mer territoriale et la zone contigue" (1934) Recueil des Cows de I'Academie de Droit International, I I , vol. 48, at pp. 137-278.

12

Laurent Lucchini and Michel Voelckel, Droit de la mer, vol. I (Paris, Pedone, 1990), p. 331.

Background Information

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Therefore the dispute indeed concerns lands which are capable of appropriation. b) Are these territories the kind which entail the attribution of extensive maritime zones to the State which has sovereignty over them? This question is tantamount to asking whether Article 121, paragraph 2, of the United Nations Convention on the Law of the Sea is applicable to these islands, islets and rocks, i.e. whether the annexation of the archipelagos, in itself, gives exclusive rights to the living resources of the sea or the resources of its subsoil within the limit of 200 nautical miles around the land in question. Article 121, paragraph 2, states: Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory. It could be argued that these are rocks calling for the application of paragraph 3 of the same article: Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf. This is the crux of the current dispute, despite the fact that the protagonists hesitate as to the best attitude to adopt in order to serve their own interests. Looming behind the question of title to sovereignty - our strict focus here - the decisive issue is control of the resources of the sea. The appetite of States for maritime territory is growing in line with the role of fisheries in national economies, and the importance of finite oil and mineral resources in certain key industries. In order to decide between competing desires for maritime space, international law allows for delimitation between States with adjacent or opposite coastlines. Sovereignty, however, is a prerequisite. The titleholder must be established before identifying the resultant rights to adjacent waters and the States between which the delimitation will be effected. Strategies are hesitant. Each State claims possession of the land and international recognition of what it considers to be an ancient title. Hoping for a favourable outcome, each attempts to persuade all the partners that all the islands are habitable, thus multiplying the maritime areas which would fall under its national control.

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Chapter I

However, when it comes to the claims of others, the interpretation of the wording 'rocks which cannot sustain human habitation' becomes more punctilious, in an endeavour to curtail the number of islands which would give rise to broad rights over the adjacent waters. Pending settlement of the conflict - which steadily recedes as positions harden - certain parties have not hesitated to change the original reality. In the Paracels particularly, since taking military control, the Chinese have carried out spectacular development projects. In places where, until the end of World War II, navigators and geographers described inhospitable lands occupied only by seasonal fishermen, swept by typhoons or racked by oppressive heat, harbours, airstrips, roads and fortifications or other facilities have appeared, sustained by a feat of military logistics. All this has made the words 'sustain human habitation' lose their original meaning. The various States which have occupied islands in the Spratlys have also expended a great deal of energy on similar schemes. This has been encouraged because the above-mentioned paragraphs of the United Nations Convention on the Law of the Sea, itself the fruit of complex compromises, left several difficulties unresolved. How to distinguish between an island and a rock? Under what conditions are human habitation on an island or an economic life of its own feasible? 13 The last paragraph of Article 121 leaves a great deal to interpretation, since the text does not say 'uninhabited rocks' but 'rocks which cannot sustain human habitation'. For example, if the criterion for human habitation is the presence of fresh water, then that is found on the main islands in both the Paracels and the Spratlys. If it is the presence of vegetation, this is also found. The alternative to that condition is the possibility for an island to have an economic life of its own. Once again, there is substantial imprecision.14 Do fishing or the mining of guano constitute adequate activities? For a reply to these questions, we must interpret Article 121, paragraph 3, of the Montego Bay Convention. The wording of the text indicates that artifice must be eliminated. The rocks must sustain human habitation, eliminating the hypothesis that they might be equipped to make them suitable for this. Similarly, mention is made of an economic life of their own. Therefore cases where the islands serve as outposts for activities which in fact are based in another territory cannot be taken into account. 13

14

See on this subject J.R.V. Prescott, The Maritime Political Boundaries of the World (London, New York, Methuen, 1985), pp. 72 el seq, Ibid.

Background Information

25

To sum up, land above the water, however insubstantial, must be capable of supporting naturally a relatively stable community of people.15 Were both archipelagos able to do so from the beginning? No account must be taken of the presence of garrisons, maintained only with military support, nor of any population maintained there by means of costly infrastructure and facilities, since it is well known that such developments, widespread after the dispute has arisen, are designed to change the odds. It is therefore necessary to go back to the state of the islands as described by navigators or visitors before the conflict caused transformations. Without doubt, the overwhelming majority of these sprinklings of land come under paragraph 3 of Article 121. The status of some of the larger islets is debatable, particularly Woody Island in the Paracels. If the human habitation mentioned in the Convention is seasonal, then since ancient times some islets have been visited for several months of the year, in the dry season, by fishermen from various neighbouring countries who 'lived' there without making the islets their usual abode. However no economic life of their own, i.e. with a certain autonomy, has ever been possible for these lands. So it is noteworthy that most authors have tended to conclude that these islands might well have a territorial sea but that they do not provide entitlement to an exclusive economic zone.16 To make progress on the main issue - the validity of the titles claimed the exact nature of the dispute must be identified. The legal nature of the dispute Several States have irreconcilable positions regarding these archipelagos. What then is the legal foundation of the claims of the various governments? Does any one of them have a better title than another, or than others, which demands recognition? Vietnam asserts that it has territorial State sovereignty over both archipelagos, on the grounds of ancient, continuously maintained titles. Let us recall that: Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the 15 16

See Jon M. van Dyke and Dale L. Bennett, Islands and the Delimitation of Ocean Space in the South China Sea, 13 March 1989, mimeographed paper, p. 41. See van Dyke and Bennett, op. cit.; similarly, Jeanette Greenfield, China's Practice in the Law of the Sea (Oxford, Clarendon Press, 1992), p. 164.

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Chapter I

right to exercise therein, to the exclusion of any other State, the functions of a State.17 China counters the Vietnamese claim to the Paracels with a claim of its own. It has backed its claim by a military occupation which ousted the previous Vietnamese presence, in 1956 for part of the archipelago and in 1974 for the rest. Contemporary international law (Charter of the United Nations, Article 2, paragraph 4) prohibits the use of force against the territorial integrity of a State. So a military occupation denounced as such cannot ever, in any way, become a valid, recognized title.18 Matters are different in the Spratlys. The assertion of sovereignty by the Vietnamese Government (subsequent to the affirmation of French sovereignty), and its control over the main islands of the archipelago, were countered by Filipino and Taiwanese claims and occupations, more recently by Malaysian and Chinese (1988) ones, the Chinese claim being accompanied by the military occupation of several islets after violent incidents. These factual data prompt us (and even make it imperative) to examine the nature of the dispute. Two possibilities must be considered in turn. Is this a dispute relating to the acquisition of sovereignty over terra nutlius? Or, is it a territorial dispute between two States which both claim title to sovereignty? The first possibility must be disregarded, since there are certain similarities between the situation studied here and the Minquiers and Ecrehos case. Both parties contend that they have respectively an ancient or original title to the Ecrehos and the Minquiers, and that their title has always been maintained and was never lost. The present case does not therefore present the characteristics of a dispute concerning the acquisition of sovereignty over terra nullius.' 19 These words may be transposed to the case of the archipelagos in the South China Sea. It is no longer a question, and has not been for a long time, of 17

18

19

Max Huber, Arbitral Award, Island of Palmas, 4 April 1928, Reports of International Arbitral Awards, vol. II, at p. 838. See Tullio Treves, 'La declaration des Nations Unies sur le renforcement de 1'efficacite du principe de non-recours a la force' (1987) Annuaire Francais de droit international, at pp. 379 et seq. Minquiers and Ecrehos case, International Court of Justice, Reports, 1953, at p. 53.

Background Information

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attributing sovereignty over terra nullius to a State which seeks to acquire title. Rather the dispute will be settled only by resolving a territorial dispute between several States, which occupy or have occupied the same lands over very different time scales and on the basis of very different titles. The dispute having been characterized, the question which then arises is: what law will be applicable? The norms of international law applicable to a settlement of the dispute What legal approach can be adopted which might permit a conclusion as to the merits of one claim against another? The concept of one single argument will have to be abandoned in favour of a method which takes account of the rhythms of time in relations with the law. The argument of geographical contiguity This argument must be jettisoned from the outset. In the history of claims of sovereignty over island territories, the argument based on geographical proximity has been used many times by one State or another (the Argentine claim to the Falkland Islands for instance). However, it has never been recognized as constituting a rule of international law making it possible, in the event of conflict, to rule in favour of the State whose territory lies closest to the disputed islands.20 In the Island of Palmas case, Judge Max Huber considered this argument at length. His reasoning deserves to be quoted in extenso: In the last place there remains to be considered title arising out of contiguity. Although States have in certain circumstances maintained that islands relatively close to their shores belonged to them in virtue of their geographical situation, it is impossible to show the existence of a rule of positive international law to the effect that islands situated outside territorial waters should belong to a State from the mere fact that its territory forms the terra firma (nearest continent or island of considerable size). Not only would it seem that there are no precedents sufficiently frequent and sufficiently precise in their bearing to establish 20

The case of the Island of Bulama on the coast of West Africa (Ulysses Grant Arbitration of 21 April 1878) cannot serve as a precedent. Apart from the fact that it is an isolated case, the arbiter remarks that this island 'is adjacent to the mainland and so near to it that animals cross at tow water'. Here contiguity occurs in such special conditions as to be unique.

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Chapter I

such a rule of international law, but the alleged principle itself is by its very nature so uncertain and contested that even Governments of the same State have on different occasions maintained contradictory opinions as to its soundness. The principle of contiguity, in regard to islands, may not be out of place when it is a question of allotting them to one State rather than another, either by agreement between the Parties, or by a decision not necessarily based on law; but as a rule establishing ipso jure the presumption of sovereignty in favour of a particular State, this principle would be in conflict with what has been said as to territorial sovereignty and as to the necessary relation between the right to exclude other States from a region and the duty to display therein the activities of a State. Nor is this principle of contiguity admissible as a legal method of deciding questions of territorial sovereignty; for it is wholly lacking in precision and would in its application lead to arbitrary results.21 Although dating back to the period prior to World War II, these comments are still just as pertinent today. They mean that one argument devoid of legal value can be eliminated from the field of consideration, and one can but conclude, in the words of Louis Cavare, 'It is impossible to accept that proximity can serve as basis for the creation of a genuine right.' 22 Hence, the fact that, where the Paracels are concerned, the closest point in these islands to Vietnam lies some 170 nautical miles from Da Nang and 156 nautical miles from the coast of Hainan, or that the distance separating the closest point in the Spratlys from the coast of Vietnam (Cam Ranh) is 250 nautical miles, while that archipelago lies some 522 nautical miles from Hainan, have no bearing on the legal substance.23 The legal substance must be weighed up in relation to a process of acquisition of title and maintenance of title which consists of a lot more than mere geographical data. The question whether these archipelagos are situated in the exclusive economic zone of one or other riparian State of this sea is neither here nor there. In international law, it is not the fact that an island is situated within 21 22 23

Max Huber, Arbitral Award, Island of Palmas, 4 April 1928, op. cit., at pp. 854-855. Louis Cavare, Droit international public positif'(Paris, Pedone, 1962), p. 597. It is surprising to note the persistence of this argument among a handful of authors such as Charles Rousseau, Revue generate de droit international public, 1972, at p. 835.

Background Information

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the exclusive economic zone which has any bearing on whether the island belongs to one State or another, it is the title of sovereignty to an island which, when it has been determined, leads, under certain conditions examined above, to the attribution to this island of a territorial sea and, as the case may be, of an exclusive economic zone, in which case the title recognized will affect the actual data of the delimitation themselves. By virtue of their land mass, both China and Vietnam, under the terms of the 1982 Convention on the Law of the Sea, can claim rights up to 200 nautical miles, and in this respect, the Paracels lie in an area where the potential rights of the two States overlap. It is the delimitation between them which will determine their maritime boundary. However, sovereignty over the archipelagos is not governed by the maritime delimitation, which would include the Paracels in an area controlled by one or other of the two States. On the contrary, it is a separate, preliminary question, whose outcome has a bearing on the delimitation. On the other hand, in this respect the Spratlys are in a very different geographical position, since they lie outside the zones that either State (China or Vietnam) can claim as continental shelf or exclusive economic zone. However, some of the islands in this vast archipelago are closer to Malaysia or the Philippines. The machinery of intertemporal law How in international law are the titles of acquisition to an uninhabited territory constituted? How are these titles maintained? The answer to these questions is provided by a subtle legal argument denoted by the name intertemporal law. Intertemporal law consists in comparing the particulars of the legal system at the different periods of its development with the specific facts of the situation which constitute the basis of the dispute. The legal system has evolved over centuries of history woven between human societies and territories. The rules which, at a given period, presided over the acquisition of a title of sovereignty were gradually transformed. Confirming the Latin dictum ubi societas, ibi jus, the law adapted to the evolution of societies and to the values which they developed. If one goes back to the period of the great discoveries, and noting only the major turning points (which appear as such to us but in reality were slow to emerge), three stages can be identified. The first period is the one when, for islands which were said to be terra nullius, territorial discovery served as acquisition of title, provided it was accompanied by an affirmation of sovereignty. Yet this period was also

30

Chapter 1

characterized by the fact that the sovereignty of the State included the right of conquest. Further, the Great Powers had treated many lands inhabited by peoples unknown to them, which had developed their own non-western systems of social organization, as terrae nullius.24 By this means, and showing complete disregard for the populations, the word conquest could be omitted, being replaced by the much simpler expression of 'discovery'. This first system of law only changed under the influence of inter-Power rivalry during the 19th century. The change in the law was crystallized at the Congress of Berlin and in the precise terms of its General Act of 1885. Two new rules were admitted by the signatories, Africa being essentially the field of application. These were the requirement that lands allegedly acquired should actually be occupied and the requirement that other States should be notified of this effective possession. From that time onwards, supported by numerous arbitral awards or legal decisions, international law with respect to territorial acquisition became consolidated and widely accepted, in particular through the magisterial award of Judge Max Huber in the Island of Palmas case. A dispute over sovereignty between two States was settled by the finding that one of the States concerned had greater title than the other. The relevant acts must have been performed in sovereignty and could not therefore have been performed by private individuals acting on their own behalf. A distinction was drawn between creation of the title to the territory and the maintenance of this title in continuity. The effects of an act produced as giving access to the title (cession, conquest, discovery or occupation) must be weighed up in the context of the law in force when that act was performed, and not on the basis of the law in force at the time when the dispute arose. However, the initial title had to be backed up by the continuous, peaceful exercise of the authority of the State active in the territory. And if the initial title had been obtained without the display of authority throughout the territory, maintenance of the title could only stem from the generalization of such display. However, it was accepted that, where uninhabited, remote lands were concerned, the manifestations of that display might be more tenuous than in lands with more developed civilization. 24

See in this connection 'Terra Nullius, "droits" historiques et auto-determination', Mohammed Bedjaoui. The Hague, 1975. Oral statements made before the International Court of Justice in the case concerning Western Sahara on 14 May and 14, 15, 16 and 29 July 1975.

Background Information

31

Lastly, the recognition or acquiescence of third States could not serve as basis of the title itself, but was an element which reinforced the position of the State exercising the authority.25 Such was the state of the law from the close of the 19th century until the first half of the 20th century. A number of fundamentally important and radically innovative elements were introduced with the Charter of the United Nations, which laid the foundations of a universal, international legal order. Concerned as they were to attain the objective of the maintenance of peace, the founding States introduced a vitally important element. This element constitutes a truly revolutionary change in international law with the prohibition of the use of force against the national integrity of a State (Article 2, paragraph 4). Wars of conquest, as a source of new sovereignty over a territory, are now prohibited. Conquest by force entails a situation of military occupation which is always illegal and which, failing an agreement concluded between the States concerned, cannot be transformed into law, even with the passage of time. However, the United Nations Charter also contained another principle which lay at the root of considerable upheavals in international law, namely, the right of peoples to self-determination (Article 1, paragraph 2, of the Charter). However, the inclusion of this principle among those which moulded the initial aims of the United Nations was not sufficient in itself to ensure that it produced its full effect. Not until 1960 and the dawn of the great decade of decolonization was what had hitherto been the law completely overturned. It was then that the law of peoples attained its fullest expression with the Declaration on the Granting of Independence to Colonial Countries and Peoples (United Nations General Assembly Resolution 1514 of 14 December 1960). Paragraph 4 of the Declaration is especially noteworthy in relation to the legal principles enumerated here for their usefulness in illuminating the case under consideration: All armed action or repressive measures of all kinds directed against dependent peoples shall cease in order to enable them to exercise peacefully and freely their right to complete independence, and the integrity of their national territory shall be respected. 25

See, on these points, Kriangsak Kittichaisaree, The Law of the Sea and Maritime Boundary Delimitation in South-East Asia (Oxford University Press, 1987), pp. 140 el seq.

32

Chapter I

The last phrase is crucially important. It highlights the fact that the difficult transition of a colonized people to an independent people, which often takes place in political conditions marked by confusion and disorder, must never involve any encroachment on its territory. Lastly, the Charter was strengthened, clarified, and extended in 1970 by a particular resolution which has sometimes been compared to a constitutional development of the Charter. This is resolution 2625 of 24 October 1970.26 This text reiterates the prohibition of the use of force as a means of settling territorial disputes and also the fact that no territorial acquisition resulting from the threat or use of force will be recognized as legal. The Manila Declaration of 15 November 1982 on the Peaceful Settlement of International Disputes crowns this edifice and defines the principles which must in all circumstances take the place of violence.27 This is the set of rules which, by successive stages, have formed the corpus of positive international law. The changes have never occurred abruptly. Even the most salient one, prohibition of the use of force, had been heralded by the provisions of the League of Nations Charter and the BriandKellogg Pact, less precise and radical though those provisions may admittedly have been. As a rule, the elaboration of law and the gradual modifications through which it passes are slow processes in which the part played by custom, itself permeated by the slow development of attitudes, envelops the text of the dated treaty or convention (should there be one) and, as it were, levels out the temporal unevenness by absorbing it into a more blurred landscape. Against the backdrop of this long evolution of the legal principles over three periods sufficiently distinct for them to be specifically identified, the history of the two archipelagos must be examined in relation to the troubled history of Vietnam and to that - more uniform but nevertheless not free from complications - of China, today Vietnam's principal rival for these lands. One of the major difficulties of this case is the necessity to correlate two totally different historical rhythms. The law has been transformed step by step with the various historical epochs, social evolution causing each period characterized as new to engender different norms, whose gestation had been perceptible during the preceding period. Even if certain dates have the appearance of watersheds (1885 or 1945), the law has developed within a certain continuum. 26

27

Known as Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations . General Assembly resolution 3710 .

Background Information

33

It is against this background that the principal fault lines in the history of Vietnam should be seen. The first French protectorate over this sovereign State (even though it was tied by vassalage to China) was in 1874, the actual protectorate regime beginning in 1884. The Democratic Republic of Vietnam was created on 2 September 1945. A State of Vietnam within the framework of the French Union was officially set up under the Agreements of 8 March 1949. In July 1954, putting an end to the hostilities with the Democratic Republic of Vietnam, France concluded agreements whose practical consequences at the time were the creation of two Vietnamese States. Reunification was to come in 1975 after further hostilities. Thus, despite its fierce and legendary independence, the Vietnamese people was 'under supervision' for long decades of its history. And the rightful holder of the sovereignty (the people) found itself lumbered with spokesmen who were variously suffered, despised, resisted or endured. Not counting the period of partition, during which this people experienced a mutually hostile dual representation. Certain episodes in the history of China must also be taken into consideration. At the beginning of the 20th century, the Government of Kwangtung was not recognized by Peking, nor by third States. From 1949 onwards, there were two Chinas, a situation which persists to this day. The consequences of this state of affairs for the legal case were heavy. When the Emperor of Annam acted as sovereign at the beginning of the 19th century, what was the impact on his actions on the alleged vassalage with respect to China? When France, having conquered Vietnam with arms, ignorant of a great deal of the history of the people thus colonized, appeared hesitant, uncertain; when the officials of its colonial administration were divided over what attitude to take to the archipelagos; when France was slow to assert its rights as a continuation of Vietnamese rights in face of Chinese appetites, themselves considerably diminished by the Japanese threat in the region, what was the significance of the French diplomatic and political correspondence and how was it to be evaluated? When the two parts of Vietnam, North and South, were riven by a war, into which a foreign power, the mightiest power in the world, was throwing all its weight, as were a number of other powers, what was the value of the sometimes quite contradictory acts or declarations by one party or another? In the long, chaotic, conflict-ridden, and even for a long period, dramatic history of this part of the world, it is very difficult to assemble the sort of incontrovertible documents which constitute evidence and are the material on the basis on which the law can be established.

34

Chapter I

It is particularly hard for the claimants to the title to demonstrate the complete continuity of the national will in the display of the maintenance of the law. It is difficult, yet seemingly not impossible. Admittedly, certain archive material is missing.28 This is not decisive to the case, however. Certain acts or declarations must be interpreted in the political context which was theirs. There is thus room for a degree of subjectivity, which is inevitable whatever the system of law applied. Yet through their rigour, jurists must strive to build up objectivity. At this juncture, therefore, let us turn to our analysis of a case of which it has been said, 'Only the Falkland Islands is a more complex case than that of the Paracets' 29 A chronology of the important facts is the first essential step.

CHRONOLOGY Identifying the succession of events over the course of time is always necessary when there are many facts, some of them old. The aim is simply to present and clarify the case. However, in a legal issue the chronology meets another need, that of dating a certain number of events in order to situate them in relation to each other, and to determine which took place first. The established pre-existence of a fact may indeed have decisive legal effects. Lastly, accurate dating, as well as the order of events over time, are indispensable if we are to state the rules of international law under which each fact or series of facts must be assessed. There are still many difficulties in establishing a chronology. The first task in trying to overcome these difficulties is to identify with care the authors of the acts. Some acts were carried out by representatives of States, but in complex cases of division, superimposition and rivalry between the powers of States, it is necessary to identify the State concerned with great accuracy. Other acts, in the realm of society, were carried out by private individuals or population groups. They may have some value in the legal argument, although never having the same authority as acts of the State.

28

29

This needs to be viewed in the light of the awkward problem of the succession of archives in the case of States issuing from decolonization. Herve Couteau-Begarie, Geostrategie du Pacifique (Paris, Economica, 1987), p. 229.

Background Information

35

Lastly, certain instances of conduct on the part of third States can and must be taken into consideration and consequently included in the chronology. Our chronology will be constructed around two major events which concerned not only the protagonists but all the States in the area: the arrival of a colonial power and World War II. Before colonization During this period a distinction can be made between discovery not followed by the taking of possession or by occupation, and actual occupation. Awareness of the existence of the archipelagos, as revealed by numerous references to them in historical works, certainly dates back to ancient times. However, awareness of their existence, as a result of their discovery by various navigators, was something mentioned in accounts of journeys, or came from the study of maps, and prior to the 18th century it was not accompanied by any measure having legal ramifications.30 Fishermen from various neighbouring countries visited the islands over the centuries. Navigators from more distant climes (Indians, Persians, Arabs, Portuguese, Spaniards, Dutchmen) knew of them and spoke of them long ago. Among them were some French navigators who set sail for the Far East from the port of La Rochelle on 7 March 1568, with Jesuit scholars on board. They were to reach the Paracels.31 The islands became notorious in maritime history with the wreck of the Amphitrite, sailing from France to China in the reign of Louis XIV (1698).32 Old Chinese texts dating back to various periods before the 18th century mention the existence of the islands, of which Chinese navigators had long been aware. However, until the 18th century, no major events having effects on the status of the islands occurred. Under the Nguyen dynasty, the rulers of Annam in the early 18th century, a company was formed to exploit and protect the islands. In 1816, Emperor Gia Long solemnly confirmed the sovereignty of the Emperors of Annam over the archipelagos. 30

31

32

The legal discussion of the titles of discovery advanced by the various parties will be presented, document by document, in the following chapter. Le Thanh Khe, L'affaire des iles Paracels et Spratleys devant le droit international, Institut International d'Etudes et de Recherches Diplomatiques, 1958. Claudius Madrolle, 'La question de Hainan et des Paracels' (1939) Revue Politique Etrangere.

36

Chapter I

The Minh Mang dynasty which succeeded Emperor Gia Long pursued his work. - 1833-1834 The order was given to erect a monument and to make a map. - 1835—1836 - Various works on the islands were taken forward under the administration of the Emperor. - 1847-1848 - The administration of the islands was maintained, its purpose being geographical, for better reconnaissance of maritime routes, as well as fiscal, to levy taxes on the fishermen of the region. The period of French colonization up to the end of World War II French domination began with a first Treaty of Protectorate signed in Saigon on 15 March 1874. This was confirmed by a protectorate definitively established under the Treaty of Hue (called the Patenotre Treaty) of 6 June 1884, which gave France substantial powers in a large number of fields. The French controlled Tonkin and Annam. All the points in the territory of the Empire were accessible to the French troops. On 17 October 1887 the Indochinese Union was created, transformed under Governor General Paul Doumer into a true colonial administration. In essence, imperial power then passed into the hands of the Chief Resident. The facts relating to either or both of the archipelagos during this period were as follows: - 1881-1884 - The Germans proceeded systematically to map the waters of the Paracels (as they were doing throughout the South China Sea) without making any claim to sovereignty. - 1887 - On 26 June, France and China concluded a Convention delimiting the frontier between Tonkin and China. Inter alia, the text states: In Kwangtung, it is agreed that the disputed points which lie east and north-east of Monkai, beyond the frontier as determined by the Delimitation Commission, are allocated to China. The islands which are east of the Paris meridian 105°43'E, i.e. east of the north-south line passing through the eastern point of the island of Tcha's Kou, or Ouan Chan (Tra Co), which forms the boundary, are also allocated to China. The island of Gotho and other islands west of this meridian belong to Annam. - 1895-1896 - Two shipwrecks in the Paracels, that of the German vessel Bellona and that of the Japanese vessel Imezi Maru, caused disputes. Both

Background Information

37

vessels were carrying copper insured with British companies. It proved impossible to save the cargo and it was abandoned where it lay. Chinese fishermen looted it and carried it away to Hainan by junk or sampan to resell it to shipbuilders. The insurance companies sought redress against those responsible, a protest being lodged by the representative of Great Britain in Peking, and by the Consul in Hoihow. The local Chinese authorities (the Governor of Liang Guang) then protested, disclaiming any responsibility on the grounds that, for them, the Paracels were abandoned islands which belonged no more to China than to Annam, that they were not administratively attached to any district of Hainan and that 'no special authority was responsible for policing them'.33 - In 1899, Governor General Paul Doumer ordered a lighthouse to be built on the Paracels. A study was carried out by the colony's technical services. The lighthouse was not built because of lack of funds.34 - In 1909, on 6 June, the Viceroy Governor of Liang Guang (the Chinese provinces of Kwangtung and Kwangsi) sent two small gunboats under Admiral Li Zhun to debark for a short time (24 hours) on some islands in the Paracels. France made no protest. - In 1920 a Japanese company, Mitsui-Bussan Kaisha, mined phosphates on some islands, after seeking French authorization. - From 1920 onwards France exercised maritime and customs super vision over the Paracels. - 30 March 1921 - The civilian Governor of Kwangtung announced that the military Government of the south had decided administratively to incorporate the Paracels into the sub-prefecture of Yai Hien (Hainan Island). France made no protest (the Kwangtung Government being recognized neither by the central Government of China nor by the Great Powers). - From 1925 onwards a scientific study of the Paracels was carried out by a team under Dr A. Krempf, Director of the Oceanographic Service, on board the trawler de Lanessan. The same specially equipped vessel surveyed the Spratlys in July 1927. - On 8 March 1925 the Governor General of Indochina declared the Paracels and Spratlys to be French territory.

33

34

Statement reported by the Governor General of Indochina to the Minister for the Colonies, 20 March 1930, Annex 5. Same correspondence.

38

Chapter I

- 1927, the Consul General of Japan, Mr Kurosawa, asked the French authorities in Indochina for information on the territorial status of the Spratlys. - November 1928 - The New Phosphates Company of Tonkin applied to the Governor of Cochin China for a permit to prospect for mineral deposits on Spratly Island. - July 1927 - The Spratlys were officially visited by the vessel de Lanessan. - 1929 - 15 June - The Governor General of Cochin China requested the Commander of the Navy in Indochina to undertake a voyage to Spratly or Storm Island, which was administratively attached to the province of Ba Ria (Cochin China). - 1930 - 13 April - The Governor General of Indochina sent the adviceboat Malicieuse to the Spratlys. The members of the expedition raised the French flag on a hill. Communique of 23 September 1930 notifying the other Great Powers that France had occupied the Spratlys. - 1931 - A contract for the mining of guano deposits in the Paracels was awarded by China. The French Government claimed the islands in a Note handed to the Legation of China in Paris on 4 December 1931. - 1932 - 29 April - Explicit protest by the French Government, relying on Annam's historic titles and the evidence of the occupation by Annam and subsequently by France. In the same year, France proposed bringing the case before an international tribunal, and China opposed this. - 1933 - 13 April - A flotilla detached from the French naval forces of the Far East, under the command of Post Lieutenant Delattre, sailed from Saigon to Spratly Island (the advice-boat Malicieuse, the gunboat Alerte and the hydrographic vessels Astrobale and de Lanessan). Taking of possession according to the time-honoured ceremony. A written document was signed by the captains in 11 copies. Each island received its own document, encased in a bottle itself sealed into a boundary-marker permanently fixed on the ground. The French flag was raised and the clarion sounded on each island. 1933 By a decree of 26 July the French Government proclaimed the occupation of the Spratlys archipelago by the French Navy. (The islands were listed individually). Furthermore, by a decree of 21 December of the same year, the Governor of Cochin China, Mr J. Krautheimer, officially incorporated the Truong Sa archipelago into Ba Ria Province. - In 1937 - the head of public works, Mr Gauthier, went on an official mission to the Paracels, on behalf of the French colonial administration, to

Background Information

39

study the potential for maritime and air traffic facilities, and to build a lighthouse on Pattle Island. - 1938-1939 - As a follow-up to the mission, France sent detachments of the civil guards to the islands. By a decree dated 15 June 1938, the Governor General of Indochina, Jules Brevie, created an administrative delegation in the Paracels (Emperor Bao Dai having signed an order transferring the Paracels from Nam Ngai Province to Thua Thien Province). - On 5 May 1939 the same Governor General of Indochina, Jules Brevie, amended the previous decree to create two administrative delegations in the Paracels. A marker had been erected on Pattle Island (Paracels) in 1938, bearing the inscription: "French Republic - Kingdom of Annam - Paracels Archipelago 1816 - Pattle Island 1938: A lighthouse, a meteorological station and a radio station were installed on Pattle Island in the Paracels, and on Itu Aba Island in the Spratlys. - 1939 - 31 March - In a Note to the Ambassador of France, stating that Japan had been the first to explore the islands in 1917, the Japanese Govern ment (Foreign Ministry) announced that it controlled the Spratlys. Japan noted the absence of a local administrative authority, viewing this as a situation prejudicial to Japanese interests. On 4 April the same year, France lodged a protest. Among third States, it is interesting to note the position of the United Kingdom, which was defined in the course of a debate in the House of Commons on 5 April, when the representative of the Foreign Office stated that the Spratlys were 'claimed in full sovereignty by the French Government '. - 1943 - 1 December - Communique of the Anglo-American-Chinese Conference in Cairo affirming its will to strip Japan of the territories it had stolen (Manchuria, Formosa, Pescadores) and restore them to the Republic of China. - 1945 - on 9 March the Indochinese detachment on duty in the Paracels was taken prisoner by the Japanese Navy. The Japanese did not leave the Paracels until 1946, being replaced in May of that year by a French infantry platoon which landed from the Savorgnan de Brazza and stayed only a few months. Chiang Kai-shek landed troops on both archipelagos, on the pretext of disarming the Japanese, landing in the Paracels in November 1946 and on one island in the Spratlys in December 1946. - 1945 - 2 August - Potsdam Declaration.

40

Chapter I The period after World War II

- 1945 - on 15 August Japan capitulated. On 19 August the Viet Minh seized power in Hanoi. Ho Chi Minh formed a provisional government on 22 August. On 25 August Emperor Bao Dai abdicated. On 2 September Ho Chi Minh proclaimed the independence of Vietnam and the Democratic Republic of Vietnam came into being. France was determined to regain control of Indochina. - 1946 - 28 February - A Franco-Chinese agreement was signed at Chung King, enabling France to succeed China as the military presence in Tonkin. The Government of Ho Chi Minh and the representatives of France signed the Agreements of 6 March 1946. Under the Agreements, France recognized the Democratic Republic of Vietnam as a member of the French Union. - The application of the Agreements of 6 March 1946 was fraught with difficulties. From December 1946, there was conflict on all fronts. However, since France had chosen to back a 'nationalist' Vietnamese State, the creation of a second Vietnamese Government was encouraged and endorsed by the Agreements of 8 March 1949, and the Agreements of 1954 enshrined the existence of two Vietnams, bringing the war in Indochina to an end. It was followed, however, by the Vietnam war, which lasted until the reunification of the two Vietnams in 1975. - In 1947 (7 January or 13 January, depending on the source) China again landed troops on Woody Island (Paracels), taking advantage of the fact that the French authorities were not occupying the islands. The French Government lodged an official protest against this illegal occupation and sent a detachment of French and Vietnamese soldiers to establish a garrison on Pattle Island. The Chinese Government protested in its turn and negotiations opened in Paris, from 25 February to 4 July 1947. The Chinese Government rejected the French suggestion to take the matter to arbitration. On 1 December 1947, Chiang Kai-shek signed a decree giving both archipelagos Chinese names and including them in Chinese territory. - 1948, for China, was marked by events which diverted attention from the situation in the archipelagos. The advent of the People's Republic of China in 1949 considerably changed the international context of the dispute. - 1949 - April - At a speech given in Saigon, Prince Buu Loc, chef de cabinet in the Government of Emperor Bao Dai, publicly reaffirmed Vietnam's rights to the Paracels.

Background Information 41 - 1950 - In April the garrison established by Nationalist China on Woody Island was evacuated. The French detachment on Pattle Island was maintained. On 14 October the French Government officially transferred control of the archipelagos to the Government of Bao Dai. The Governor of Central Vietnam presided over the handover ceremony in the Paracels. It does not appear that there was any military presence whatsoever in the Spratlys at that time. - 1951 - The Spratlys were the subject of claims expressed at diplomatic level. President Quirino of the Philippines claimed them for his country (on 17 May) on grounds of proximity. On 24 August the New China News Agency disputed both the rights of France and the claims of the Philippines, asserting China's rights in emphatic terms. From summer 1951, the idea of a peace treaty with Japan began to take shape. This treaty was signed on 8 September 1951. Article 2, paragraph 7, of the Treaty stated that: Japan relinquishes all rights, titles and claims to the Paracels and Spratlys. Learning of the draft treaty, the Foreign Minister of the People's Republic of China, Chou en-Lai, on 15 August 1951 made public a declaration reaffirming the permanence of China's rights over the archipelagos. - 1951 - September - Opening of the San Francisco Conference. China was not represented.35 Mr Gromyko at the plenary meeting of 5 September proposed 13 amendments. The first of these envisaged the recognition by Japan of the sovereignty of the Chinese People's Republic over the Paracels and other islands further south. This amendment was rejected by 48 votes to 3. On 7 September, the Prime Minister and Minister for Foreign Affairs of the Vietnamese Government of Bao Dai solemnly declared that the two archipelagos fell within Vietnamese territory. This declaration elicited no comment from any delegate. There was thus no precise attribution of the islands by agreement at the end of this Conference. - 1952 - Debate in the Assembly of the French Union, asked to express its opinion on the Peace Treaty with Japan. A number of statements were made, some of them contradictory:

35

Mr Gorse, speaking in the Assembly of the French Union on 25 March 1952, referred to the absence of China, of both Chinas, at this Conference as regrettable (Official Gazette of the Assembly of the French Union, 25 March 1952, p. 367).

42

Chapter I

- Mr Nguyen Khac Su, Rapporteur of the Foreign Relations Committee, remarked that Japan relinquished all rights to the archipelagos but that there was no mention whatever in the text of their future destination. He added: ...these islands have long formed part of the territory of Vietnam. We venture to hope that, in the future negotiations which cannot come too soon, their legal restitution will be effected in a spirit of friendly understanding. In the same debate, Mr Gorse said that although the Treaty excluded Japan from these territories, it did not settle the problem of definitive devolution and Mr Buu Kinh recalled Vietnam's rights, after Maurice Schumann, Secretary of State in the Ministry of Foreign Affairs had stated: It is quite true that the Spratlys and Paracels form part of the dominion of the French Union. There was a marked contradiction between these comments and those made the following day, i.e. 26 March 1952, by Maurice Faure, Rapporteur for the act of ratification of the Treaty. He considered that the islands had become terrae derelictae. - In October 1955, the International Civil Aviation Organization held a conference in Manila. By resolution 24, the Taiwanese authorities were requested to step up their meteorological observation work in the Nansha Islands (Spratlys). No objections or reservations were forthcoming (according to Chinese sources). - 1956 - April - The French Expeditionary Force withdrew from Indochina. The South Vietnamese administration sent in armed troops to relieve the French garrison on Pattle Island (Paracels). However, the Chinese People's Republic landed troops which, with the utmost discretion, occupied the eastern part of the Paracels (Amphitrites). From 1956 onwards, the eastern Paracels were thus under military occupation by the People's Republic of China and the western Paracels by the troops of the South Vietnamese administration, which arranged hydrologic studies there and authorized the mining of phosphates. The same year, Tomas Cloma, a national of the Philippines, landed on some of the Spratly Islands on 15 March. In a private capacity, he and a few companions took possession of certain islands which he baptized 'Freedomland', claiming the right of discovery and occupation. He informed the Ministry of Foreign Affairs of the Philippines of this on 15 May. At a press conference held in Manila on 19 May, the Ministry reiterated the argument of proximity with a view to promoting the idea of the rights of

Background Information

43

the Philippines to the Spratlys. However, Thomas Cloma having asked the Government of the Philippines to grant the status of protectorate to the administration he had set up, the representative of the Philippines declared that, apart from the seven islands bearing the international denomination of the Spratlys, all other parts of the archipelago were res nullius. On 31 May, the Beijing Government issued a press communique stating that no infringement of the Republic of China's rights over the Spratlys would be tolerated. However, on behalf of Nationalist China, the Taiwanese ambassador in Manila asserted the rights of China dating back to the 15th century. And a garrison of the Republic of China was then dispatched to Itu Aba, where it has been maintained since that date. However, on 1 June 1956, the Minister for Foreign Affairs of the administration of South Vietnam, Vu Van Man, reaffirmed the rights of Vietnam over the two archipelagos. The following day, France reminded the Government of the Philippines of the rights it had acquired since 1933. On 22 August, the armed forces of Saigon's Navy landed on the main island of the Spratlys, erected a monument and hoisted the flag. In October the same year, the Taiwanese Navy moved in against Tomas Cloma. On 22 October 1956 - A Vietnamese decree incorporating the Paracels into Phuoc Tuy Province was published. - 1958 - In February, numerous Chinese fishermen tried in vain to settle in the western Paracels. On 4 September 1958, the Government of the People's Republic of China published a declaration announcing that the breadth of the territorial sea was 12 nautical miles. The declaration specified that this stipulation applied to the archipelagos. This information was disseminated on 6 September 1958 by the daily Nhan Dan, organ of the Central Committee of the Vietnamese Workers' Party. It was not challenged. On 14 September the same year, the Prime Minister of the Vietnamese Government, in a Note to the Chinese premier, stated: The Government of the Democratic Republic of Vietnam recognizes and endorses the declaration made on 4 September 1958 by the Government of the Chinese People's Republic on the decision taken regarding China's territorial sea. The Government of the Democratic Republic of Vietnam respects that decision.

44

Chapter 1

- 1965 - 9 May - In response to the delimitation by the United States Government of the "combat zone" for United States armed personnel in Vietnam, the Government of the Democratic Republic of Vietnam declared: United States President Lyndon Johnson has designated all Vietnam and adjacent waters extending to a distance of 100 nautical miles from the Vietnamese coast, as well as part of Chinese territorial waters adjacent to the Xisha Islands belonging to the Chinese People's Republic, as a 'combat zone' for United States armed personnel in Vietnam (Chinese source). - 1969 - 13 May - The Vietnamese daily Nhan Dan, published the following information: On 10 May, a US military plane penetrated Chinese air space, above Yong Xing and Dong dao, two of the Xisha Islands, in the Chinese Province of Guang dong (Chinese source). 11 July 1971 - The President of the Philippines revealed that Nationalist Chinese forces had occupied and fortified Itu Aba in the Spratlys, but did not voice any claim to the archipelago by the Philippines, despite the fact that Filipino soldiers had taken up position on certain islands. A press communique of 13 July indicated that talks were in progress between Taiwan and the Philippines concerning this archipelago. The same day, Saigon's Minister for Foreign Affairs, Mr Tran Van Lam, present in Manila, recalled the Vietnamese claim and the titles on which it was based. On 16 July the same year, the New China News Agency condemned the occupation of certain of the Spratlys by the Philippines and reasserted the Chinese claims to the archipelago. - 1973 - Despite the Paris International Conference of March 1973, the Minister for the Interior of the South Vietnamese administration, on 6 September 1973, modified the administrative attachment of the Spratlys (from now on to be part of Phuoc Tuy Province). On 11 January 1974, Beijing said it saw this as an encroachment on Chinese territory and reaffirmed its claims to the two archipelagos. On 15 January, the People's Republic of China landed troops on the western Paracels (Crescent group), hitherto occupied by Vietnam, and during the following days backed up its action with a strong naval presence. On 18 January, the Ambassador of Taiwan in Saigon reaffirmed Nationalist China's claim by a diplomatic memorandum. On 19 and 20 January, the People's Republic of China shelled the islands and landed its troops on them after violent clashes with Vietnamese forces.

Background Information

45

The Vietnamese observer to the United Nations called upon the Security Council to consider the matter. The Provisional Revolutionary Government of South Vietnam made public its position that, considering the complex nature of the problem, it needed to be examined on the basis of the principles of equality, mutual respect, friendship and good neighbourliness and settled by negotiation. Asked to intervene by the administration of South Vietnam, the Pentagon decided not to get involved in the conflict. By diplomatic Note addressed to all the signatory States of the Paris Agreements of 2 March 1973, the administration of South Vietnam recalled that a guarantee of the territorial integrity of Vietnam had been given. It called for a special session of the Security Council. - 2 July. The delegate of South Vietnam made a statement to the United Nations Conference on the Law of the Sea reaffirming Vietnamese sover eignty over the archipelagos. The Saigon administration decided to strengthen the defence of the Spratlys, thus eliciting a protest from the Philippines. - 1975 - 5 and 6 May - The Vietnamese People's Navy seized back control of the Spratlys from the Saigonese troops. On 10 September, the People's Republic of China dispatched a memorandum to the Democratic Republic of Vietnam asserting that the two archipelagos had always formed part of Chinese territory. On 24 September, on the occasion of a visit to China by a delegation from Vietnam, Deng Xiaoping, Chinese Deputy Premier, announced: 'This problem will naturally form the subject of discussions in the future.' - 1977 On 12 May, the Government of the Socialist Republic of Vietnam made an official pronouncement on the question of its rights in maritime matters (territorial sea, contiguous zone, exclusive economic zone and continental shelf). In paragraph 5, it was stated that the islands and archipelagos forming part of Vietnamese territory and lying beyond the territorial sea had their own maritime territory. - 1978 - On 2 March, the Philippine armed forces took possession of an island in the Spratlys (Lankian Cay) in addition to the ones they had already occupied. - 1979 - By a decree issued in February, the President of the Philippines said that he regarded virtually all the Spratlys as being under the sovereignty of the Philippines (with the exception of Spratly Island itself). - 1982 - In June, the New China News Agency announced the development of a large harbour in the Paracels.

46

Chapter I

On 12 November, the Socialist Republic of Vietnam published a declaration concerning the baselines used for measuring the breadth of its territorial sea and included the archipelagos in this operation. On 9 December the same year, modifications were made to the administrative attachment of the archipelagos to Vietnam. - 1983 - 23 February - Malaysia raised the issue of its sovereignty over three of the islands in the Spratlys. On 25 March, the Vietnamese Ministry of Foreign Affairs disputed the fact that Malaysia had any rights over these islands and islets. In June the same year, Malaysian troops were dispatched to the Island of Hoa Lau, where they embarked on major building work. Protest from Vietnam. - 1984 - 2 June - The Chinese Parliament decided to create a special administrative zone including the island of Hainan and the two archipelagos. The Vietnamese Government issued a protest. - 1988 - February - For the first time, the People's Republic of China dispatched troops to some of the islands in the Spratlys and made a military show of strength. On 14 March, there was a naval incident in the vicinity of Johnson South Reef, Collins Reef and London Reef. A number of Vietnamese vessels were damaged. The Chinese warships used heavy artillery. 74 Vietnamese sailors were listed missing. And the Chinese vessels prevented Vietnamese rescue ships bearing the insignia of the Red Cross from carrying out salvage operations. After these incidents, according to Vietnamese sources, the Chinese Navy continued to hamper supply operations by Vietnamese ships. Both parties protested. However, since that date things have remained as they were. In April the same year, the Government of the Philippines had a mayor elected as head of the municipality set up on those of the Spratly Islands which it controlled (administrative centre - Thitu), thus conferring a more solid administrative basis on this claim to the islands. - 1989 - May - China occupied a further island. In August 1989, Vietnam embarked on the construction of an economic and scientific complex in the Spratlys. - 1990 - August - The Chinese Prime Minister, Li Peng, proposed the joint exploration of the area around the Spratlys. - 1991 - 15-18 July - At the initiative of Indonesia, an international conference was held in Bandung between the States of the region concerning the Spratly archipelago. The final press communique advocated dialogue and negotiation.

Background Information

47

- 1992 - 25 February - The People's Republic of China adopted a new law with a very extensive definition of its territorial waters and including the archipelagos in them as Chinese territories. In May, China granted the American Company Crestone Energy a concession for petroleum exploration in the South China Sea in a sector lying 300 kilometres from the coast of Vietnam, an area which the Hanoi Government claimed as its exclusive economic zone. On 8 July the same year, China seized possession of a number of additional reefs in the Spratlys. - 1994 - On several occasions, China reiterated its proposal to set aside the territorial dispute and to harness the resources by means of joint exploration. In April 1994, the press (Far Eastern Economic Review of 13 October) reported a naval incident involving a confrontation between a Chinese vessel carrying out seismic research for Crestone and Vietnamese vessels ordering it to quit an area considered by them to be under Vietnamese jurisdiction. The Chinese vessel apparently refused. On 23 June 1994, the Vietnamese National Assembly authorized the Government in Hanoi to ratify the United Nations Convention on the Law of the Sea. - 1995 - 9 February - The Philippines protested against the People's Republic of China for having occupied a small island in the Spratlys (Panganaban) claimed by the Manila Government and for having embarked on the construction of a shelter for boats. Five States currently share the effective occupation of the Spratlys, China being the only occupant of the Paracels since the military incidents in 1974.36 In the case of both archipelagos therefore, a legal analysis of the different claims will need to be made.

36

See map, Annex 6.

Chapter II Acquisition of the Original Title

The rules of intertemporal law outlined in Chapter I suggest that the major periods of international law (and the norms which in each of them governed the acquisition of territory) need to be correlated with the events relating to the archipelagos during each of these periods. It has been observed that, until the latter half of the 19th century, a State could, by virtue of discovery accompanied by the assertion of sovereignty, acquire sovereignty over an inhabited land.1 For this period, and in the light of this norm which will first be analysed and clarified (I), the question of how there was first knowledge of the archipelagos without that knowledge entailing a discovery with legal effects needs to be examined (II). The actual acts of sovereignty effected by the various States, the related evidence and the antecedence of some with respect to others will then be considered (III). By comparing the claims of the different parties, it will be possible to establish whether, in respect of one or other of the protagonists, an original title was created, in other words, whether one of the States possesses 'a title superior to that which (he other State might possibly bring forward against it'. 2 In Sections II and III, the Paracels and the Spratlys will be considered separately. THE NORMS OF INTERNATIONAL LAW REGARDING THE ACQUISITION OF TERRITORIES UNTIL THE LATTER HALF OF THE 19TH CENTURY The corpus of rules examined here is what has gradually emerged, in a customary fashion, down the centuries, above all since the era which saw the development of navigation and the great discoveries. Punctuated here and there by a number of arbitral awards or theoretical works, it did not undergo 1 2

See Chapter 1, p. 15. Island Of Palmas Award, Max Huber, 4 April 1928, op. cit., at p. 839.

50

Chapter II

any significant change until the 1884 Congress of Berlin. The rules which are reviewed here are now held to be general ones based on a very European concept of international relations. Whether they are truly universal, in other words, what the rules in force were during the periods concerned in other parts of the world, will also need to be examined. In the context of international law of western origin, acquisition of territories means either the assertion of a new sovereignty where there was none hitherto or a sovereignty modified by a change in the holder of it. The case of the Paracel and Spratly archipelagos is, or was originally, a matter of the establishment of a new sovereignty. It is this point which needs to be examined here, leaving the matter of the possibility of a change in the holder of the sovereignty for the following chapter. It is a well-known fact that (sovereign) State power usually derives from a triangular relationship between a government, a territory and a population. In the colonial conquests (the particular case of the protectorate apart), the local population was ignored and the territory reduced by a fiction to the status of res nullius, this artifice enabling the western powers to act as though affirming a new sovereignty. But in other cases, it was specifically a matter of terra nullius owing to the genuine absence of a settled population (as the comings and goings of a seasonal population did not warrant the status of inhabited land). It is the rules relating to this case (or to this series of cases) that need to be clearly identified. The general principle of these rules is, or rather was during the long period referred to here, that, for uninhabited territories hitherto ownerless: ...a claim to sovereignty based not upon some particular act or title such as a treaty of cession but merely upon continued display of authority, involves two elements each of which must be shown to exist: the intention and will to act as sovereign, and some actual exercise or display of such authority.3 Hence, two sorts of elements must be shown to exist for the acquisition of sovereignty to be accepted under international law. There are elements which are physical, material (corpus). These are inadequate without an element of intent (animus), in other words, the clearly expressed will to act as sovereign.

3

Permanent Court of International Justice, Advisory Opinion regarding Eastern Greenland, ICJ Reports 1933, p. 45 {territory disputed between Denmark and Norway).

Acquisition of the Original Title

51

The 19th century is strewn with major arbitral awards, on which occasions the arbiters, or the scholarly opinion through the medium of the commentaries on the decisions, refined this requirement. Discovery accompanied by a public affirmation of sovereignty creates no more than an inchoate title capable of removing third States from the territory to which it applies, during the time necessary for its development through occupation, but not indefinitely, as it is enough to enable its possessor to supplement it by actual occupation, that cannot be a substitute for it. To improve the title, to make it complete and definitive, 'the intention to appropriate the territory discovered must be accompanied by actual possession, in other words, the country must be completely under the control of the party concerned and it must have undertaken works which constitute settlement'.4 This was the doctrine expressed in the middle of the last century and confirmed by arbitral case-law and diplomatic practice.5 There is no shortage of varied expressions of the same view. It may be summarized as follows: discovery in the 15 th century, followed, in the 17th century, by a public affirmation of sovereignty, provided an inchoate title which actual possession of the island in the 19th century had completed.6 Two groups of alternate elements may be identified here: a factual element: discovery, then the element of intent, the indispensable public affirmation of sovereignty and, lastly, reinforcement of the factual element. The material element As the above quotations show, the concrete facts fall into two categories.

4 5

6

Eugene Ortolan, Des moyens d 'acquerir le domaine international, Paris, 1851, p. 49. Aves Islands case. Award of 30 June 1865 between the Netherlands and Venezuela, A. de la Pradelle and N. Politis, Historical Note, Recueil des Arbitrages Intemationaux, vol. II, pp. 417-418. See also Beatrice Orent and Patricia Reinsch, 'Sovereignty over Islands in the Pacific', American Journal of International Law, 1941, at pp. 443 et seq. Case concerning the Island of Bulama, Award of 21 April 1870 between Great Britain and Portugal.

52

Chapter II Mere knowledge of the territory

Little can be said about man's first encounter with an unknown territory. It relates to a whole mythology surrounding terra incognita. Matters are often more prosaic. We will revert below to the issue of how confusion often arises (sometimes with ill intent) between knowledge of a territory and its 'discovery'. A territory, and especially an island or an archipelago, can easily have been known from time immemorial to navigators frequenting those parts, to geographers keen to extend their work to include all territories regardless of who owns them, yet at the same time never have formed the object of any 'discovery' producing legal effects. The latter can only derive from facts of a certain nature issuing from specific authorities. However, supposing this condition, which falls in the domain, of intentionality, (discussed in the following paragraph) is met, it is nevertheless true that the first stage in the discovery must subsequently be reinforced. The notion of taking possession The law of the period under consideration here must not be confused with the law in force since the Berlin Congress. It should not be overlooked that only from 1884-85 onwards has there been a specific requirement of actual occupation (Article 35 of the Berlin Act), that this requirement cannot have retroactive effect and that to consider it as so having would be to make an error of law. For to require of the acquisition of sovereignty by occupation an active taking of possession, uninterrupted and permanent, is to apply to acts dating from the 18th century and the early 19th century a principle of law not proclaimed until 1885 by the Berlin Conference; the declarations of that Conference cannot have retroactive effect.7 However, long before the Berlin Act, it was accepted and required that occupation should materially amount to more than symbolic acts. 'Mere discovery has never constituted sufficient basis for a claim to terra nullius'...

7

Paul Fauchille, 'Le conflit de limites entre le Bresil et la Grande-Bretagne' (1905) Revue generale de droit international public, Paris, at p. 135.

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The symbolic ceremonies were generally supplemented by some exercise of administrative authority, such as the granting of a lease, or by lodgement of private citizens.8 It was a matter of the legal relations between States. International law in the 19th century, having regard to the fact that most parts of the globe were under the sovereignty of States members of the community of nations, and that territories without a master had become relatively few, took account of a tendency already existing and especially developed since the middle of the 18th century, and laid down the principle that occupation, to constitute a claim to territorial sovereignty, must be effective, that is, offer certain guarantees to other States and their nationals.9 However, it will be noted: First, that the degree of effectiveness of the occupation required during this period had none of the rigour or scope required of occupations under the Berlin regime: Territorial sovereignty could be acquired in the past in conditions which would not suffice today.10 Second, that in all ages it has been necessary to adapt the requirement of effectiveness (regardless of the legal degree of it required) to the circumstances of the place and the topography of the territory. ... A claim to sovereignty based upon continued display of authority involves two elements, each of which must be shown to exist: the intention and will to act as sovereign, and some actual exercise or display of such authority. (.,.) True, the Permanent Court recognized that, in the case of claims to sovereignty over areas in thinly populated or unsettled countries, 'very little in the way of actual exercise of sovereign rights might be sufficient in the absence of a competing claim'.11 8

9 10 11

Beatrice Orent and Patricia Reinsch, 'Sovereignty over Islands in the Pacific' (1941) American Journal of International Law, pp. 443 et seq. Max Huber, Arbitral Award, Island of Palmas, op. cit., pp. 845-846. Paul Reuter, Droit international public (Paris, PUF, 1968 Ed.), p. 117. International Court of Justice, Advisory Opinion concerning Western Sahara, ICJ Reports 1975, p. 43.

54

Chapter II The element of intention

Thus (in the system of intertemporal law we must apply here) mere discovery must be followed by acts of occupation meeting the requirement of qualified effectiveness described above. Such acts could lead to the acquisition of rights which could be invoked against third States only if there was an intention (animus) to act as sovereign. For this reason acts by private individuals which were not immediately followed up by the public authorities are disregarded. The debate is of long standing. It was pursued by the parties in the Aves Island case (Netherlands v. Venezuela). The arbitrator concluded: Having regard to the established fact that the inhabitants of Saint-Eustache, a Dutch possession, fish for turtles and collect eggs on Aves Island, this practice, implying as it does merely temporary, precarious occupation of the island and being not the exercise of an exclusive right, but the consequence of the abandonment of fishing by the inhabitants of neighbouring countries or by the island's legitimate owner, cannot found the right of sovereignty; 12 Intention derives either from the actual nature of certain facts or from the standing of the party performing the acts. This question lay at the heart of the Minquiers and Ecrehos case between France and the United Kingdom. In that case the International Court of Justice considered, among other things, the fact that the Jersey courts had exercised criminal jurisdiction in respect of the Ecrehos, that Jersey had levied local taxes on habitable houses or huts built by the inhabitants of Jersey on the Ecrehos, that fishermen living on and fishing from the Ecrehos had been entered in the register of fishing boats for the port of Jersey, and that contracts of sale relating to real property on the islets of the Ecrehos had been concluded in Jersey and registered in the public register of deeds of that island.13 Together these facts proved the United Kingdom's assertion of sovereignty.

12 13

Moore 5, 5037 (original Spanish). See International Court of Justice, Reports, 1953, at p. 65.

Acquisition of the Original Title

55

Conversely, certain facts invoked by France, such as buoying outside the reefs of the group could 'hardly be considered as sufficient evidence of the intention of that Government to act as sovereign over the islets '.14 Thus what the Court required was acts that could be considered to be displays of exclusive State authority over the territory concerned. Lastly, the 'animus', as distinct from actual facts, is not lost by reason of their absence. This was a key element of the legal system which prevailed until the late 19th century. A territory is abandoned by its sovereign (and cannot therefore be claimed by another sovereign) only if both elements which together establish sovereignty are lacking. In international law, derelictio results from two elements: in material terms, the absence of any effective administration of the territory concerned; in psychological terms, the intention to abandon the territory.15 The rule is of long standing and is still in force. It has been mentioned and applied in various arbitrations. It follows from these premises that Clipperton Island was legitimately acquired by France on November 17, 1858. There is no reason to suppose that France subsequently lost her right by derelictio, since she never had the animus of abandoning the island, and the fact that she has not exercised her authority there in a positive manner does not imply the forfeiture of a acquisition already definitively perfected.16 Or again: Against these titles, the fact of not having actually occupied the island did not prove anything, since the abandonment of the exercise of sovereignty was not enough to establish its loss, the titleholder further had to renounce the animus possidendi.17

14 15

16

17

Idem, p. 71. Gerard Cohen-Jonathan, 'Les iles Falkland (Malouines)' (1972) Annuaire Francois de Droit International (Paris, CNRS), at p. 238. Clipperton Island, Arbitral Award by King Victor Emmanuel III (1932) American Journal of International Law, at p. 394. Aves Island case, Netherlands-Venezuela, 30 March 1865, Moore 5, 5027 (original Spanish).

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Chapter II

Such was the law until 1884. Title to sovereignty arose only from a blend of discovery followed by the taking of effective possession accompanied by the will to act as sovereign. Two elements then supplemented this norm: the taking of effective possession must be evaluated on the basis of the location: the interruption of physical manifestations of sovereignty did not in itself interrupt sovereignty if there had been no clear renunciation of it. Was this set of norms equally valid throughout the world at the time (until the end of the 19th century)? It would appear that in Asia the abstract concept of the territoriality of the State was linked less to a spatial definition of legal jurisdiction and more to the loyalty of subjects and the social organization of society, elements which could not apply to uninhabited territories.18 This specificity must be taken into consideration in the analysis. We shall first examine the period prior to the 18th century, which was characterized by mere awareness of the islands, then the period which saw an assertion of sovereignty, from the 18th century onwards. AWARENESS OR DISCOVERY. THE SITUATION OF THE ARCHIPELAGOS BEFORE THE l8TH CENTURY A clear distinction must be made between the concept of geographical awareness and that of discovery, their legal effects being fundamentally different. There is no doubt that since ancient times (difficult to date) the archipelagos were known to geographers and navigators from various lands. They are mentioned in a host of documents (albeit with the relative lack of precision inherent in old map-making techniques). However the names in use before the 18th century do not allow us to conclude that there was universal recognition of the sovereignty of any one State over either archipelago. Works of geography do not therefore support the claims of one party or another in ancient times. These observations flow from consultation of the maps available at the French National Library. The archipelagos are identifiable on many maps dating from the early 18th century or later.'19 However, the names are given in various languages (often 18

19

See van Dyke and Bennett, Islands and the Delimitation of Ocean Space in the South China Sea, statement at the Conference held in Bali (Indonesia) on the question of hydrocarbons in the South China Sea, 13 March 1989, mimeographed paper, p. 11. In particular: 18th century Dutch nautical chart (GeB 220)

Acquisition of the Original Title

57

that of the navigator or mapmaker), making it impossible to use such charts to infer conclusions of a legal nature concerning title to sovereignty at the time. Despite the fact that China and Vietnam claim to have asserted their rights since time immemorial, as things stand there are no documents in the case allowing us to state that, beyond geographical awareness or private visits by a few fishermen, either State carried out any acts which might have revealed a taking of possession, however symbolic, before the 18th century.20 Fishing was always practised by both Chinese and Annamese fishermen. Owing to the climate (torrid heat in some seasons and formation of cyclones), there was no trace of permanent occupation before military logistics made the recent installation of garrisons possible. Examination of the documents first reveals that initially, and for a long time, there was no separate mention of two archipelagos. China and Vietnam both appear to consider that any mention embraced all the islands in general. A few Vietnamese documents are nevertheless detailed enough for a distinction between the two archipelagos to be inferred. The references produced by China are more vague in this respect. The explanation for the long confusion is historical. The navigators of the region, like the first western navigators (Portuguese, Spanish, Dutch), believed there to be a single archipelago in that part of the sea. The Europeans called it the Paracels, the Vietnamese called it Hoang Sa, and the Chinese gave it several names. It is true that the inhospitable seas of the reputedly dangerous zone discouraged idle forays. In the 18th century, the French Kergariou-Locmaria expedition (1787— 1788) identified the islands more accurately, distinguishing one archipelago which kept the name Paracels as well as 'a great number of islands which are not shown on any chart old or new'.21 Subsequently the charts showed the existence, 500 kilometres further south, of a vast, separate archipelago, named the Spratlys, or Truong Sa by the Vietnamese, and Nansha by the Chinese. It must be added that, however well the South China Sea was

20

21

Map compiled in 1808 by Daniel Rops, Lt. of the Bombay Marine (Ge 2301/17) Map of Neptune's Eastern Realm after Mannevilette (1745, Ge DD 2987) Map of Amsterdam, 1785 (GE D 3610) Map of the China Sea, 1821 (GeCC2301) Map of the Coasts of Siam and Part of the Coasts of China, 1732, compiled by Mr de la Vignein 1712 (GeC 10431). See Pierre Bernard in: Lafont (ed.) Les frontieres du Vietnam (Paris, L'Harmattan, 1989), pp. 246 et seq. Excerpt from a letter dated 28 April 1788 from Captain de Kergariou-Locmaria (frigate Calypso), National naval archives, B.4.278. Annex 7.

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Chapter II

known, for centuries it was so notorious for the dangerous ground in the form of islets, banks and reefs strewn across its centre, that navigators setting a course for Singapore or the Gulf of Thailand always hugged the Vietnamese coast. The result was that, inevitably, far less was known about the Spratlys than about the Paracels, which for Chinese sailors remained the 'gateway to Champa'. 22 The documents produced by the Chinese The Chinese arguments are expressed either in documents published by the Ministry of Foreign Affairs of the People's Republic of China, or in publications originating with the Chinese Government, such as Nouvelles sinologiques or other studies by Chinese researchers. They contain quite general assertions such as the following: A large quantity of historical works and documents as well as many archaeological finds prove beyond all doubt that the Xisha and Nansha Islands have been Chinese territories since antiquity.23 In the case of more detailed statements, arguments pointing to knowledge that Chinese navigators were said to have had of the existence of these archipelagos going back a long time are mingled with assertions relating to Chinese sovereignty.24 Geographical knowledge In certain Chinese documents, excerpts from geographical works are quoted as support for a Chinese title to the islands. And these islands are actually mentioned and described, though as they are works dealing with countries other than China, they have no value as evidence. Like all geographers in search of universal data, the Chinese geographers and chroniclers concentrated on meticulously describing territories, without necessarily including them under Chinese sovereignty. 22

23 24

Marwyn S. Samuels, Contest for the South China Sea (New York, London, Methuen, 1982), pp. 23-24. (1988) Nouvetles sinologiques. No. 7, 20 April 1988. (1988) Nouvelles sinologiques, No. 8, reproducing a document of the Ministry of Foreign Affairs of the People's Republic of China of 30 January 1980, entitled: 'China's Indisputable Sovereignty over the Xisha and Nansha Islands'.

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The following works may be placed in the category of documents which merely prove a general knowledge of the area, but are not useful to the legal argument: - Nan Zhou Yi Wu Zhi (Record of Strange Things of the South) by Wan Zhen (period of the Three Kingdoms, 220-265), written under the reign of Emperor Wudi of the Han dynasty. A travel account of a voyage in the South China Sea, it mentions that the water is quite shallow and that there are a great many 'magnetic stones'. This poetic term certainly denotes rocks or sandbanks but is too imprecisely used to enable one to identify either or both of the two archipelagos at issue today. Moreover, the Chinese themselves admit that the islands had 'a multitude of vivid and poetic names'. Whence the scepticism of non-Chinese authors regarding the fact that this text allegedly relates to the Paracels and the Spratlys.25 - Fu Nan Zhuan by Kang Tai, from the same period, mentions that, in the Sea of Shanghai, coral islands are found on a flat rocky base, with the coral growing on top. In the September 1993 issue of the periodical Window published in Hong Kong, a study signed Panshiying, a specialist researcher at the Beijing Foundation for International and Strategic Studies, quotes this very general text of Kang Tai dating from the first centuries of the Christian Era. The author claims that it contains a description of the Spratlys. Yet the quotation produced is not precise enough to bear this out. - Yi Wu Zhi by Yang Fu (Eastern Han period, 25-220 A.D.) concerns 'exotic things' relating to foreign countries. - Ling Wai dai da by Zhou Chufei (Song Dynasty, 1178), Zhu fan zhi (Notes on Foreigners) by Zhao Ju Guo (Song Dynasty, 1225), Dao Ji Zhi Lue (General View of the Islands) by Wang Da Yuan (Yuan Dynasty, 1349), Dong Xi Yang Kao (Study of the Eastern and Western Seas) by Zhang Xie (1618), Wu bei Zhi (On the Seven Voyages of Zheng He, 1405-1433, in the southern Seas and Indian Ocean) by Mao Yuan Ji (1628), Haiguo wenjihian lu (Things Seen and Heard in Countries Overseas) (Qing Dynasty), Hat Lu (Notes on Sea Voyages) by Yang Brignam of the same period (1820), Haigue tuzhi (Notes on Foreign Countries and Navigation) by Wei Yuan (1848) and Yinghuan zhilue (Summary Geography of the Globe) by Feng Wenzhang (1848) form a collection of works consisting of travel accounts, geographical monographs or nautical books concerning countries foreign to China. Some are the work of the travellers themselves or of Chinese ambassadors abroad. Others, such as Dong Xi Yang Kao, relate 'things seen and heard', the author explaining that he has set out to question people hailing from distant places, 25

See Marwyn S. Samuels, op. cit., p. 10

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Chapter II

sailors or explorers, sometimes simply because he has run into them in the harbour. Most of these accounts refer to the islands using widely varying names, which makes any identification uncertain. Sometimes there are a few details of the distance from the coast. They do not always confirm that it is indeed the Paracels which are being referred to, still less the Spratlys, which are much further from the Chinese coasts. For example, in Dong Xi Yang kao referred to supra, islands are mentioned which are situated 100 li (50 kilometres) from Wenchang, which cannot correspond geographically to the Paracels, lying as they do over 200 kilometres south-east of Hainan. The names of the islands vary in the most whimsical fashion: Jiurulozhou, Wanlizhitang, Wanlichengsha, Qianlishitang, Qizhouyang, Qizhousan. So it is difficult to follow the Chinese authors when they assert that all of these denote the Paracels or sometimes the Spratlys (however, they themselves sometimes agree that the word Wanlishitang denotes the four archipelagos, in other words, all the islands in the South China Sea) or when they infer from them a Chinese title, whereas the texts in question, such as Hai Yu by Huang Zhung, of the Ming dynasty (1536), refer to sandbanks in the barbarian countries of the south-west, which strongly indicates how foreign these territories are to China. Sometimes the assertion that a particular account mentioned the Spratlys cannot help but surprise the reader when the remark is illustrated in a note by a quotation mentioning the Paracels and clearly identifying them as situated at latitude 17° 10' north. This is a serious confusion.26 Uncertainty as to China's intentions The Chinese documents or the works of certain authors on this subject include a number of more precise references.27 This applies to the examples adduced by the Chinese as proof of an act of sovereignty when they state that, under the Northern Song dynasty (10th to 12th centuries), military patrols were organized from Kwangtung and sailed to the Paracels. Wu Jing Zong Yao (General Programme of Military Affairs 26

Jian Zhou, Les frontieres maritimes de la Chine (University thesis, Paris X, 1991), p, 330. The author states: 7» 1878, Guo Songtao, first ambassador of China sent to the West, in the account of his voyage, also mentioned the Nansha Islands (Spratlys) as belonging to China.' There follows a footnote 18, in which the quotation produced speaks of the Paracels and indicates their latitude, which avoids any possible confusion with the Spratlys, but ruins the argument. 27 See, for example, Tao Cheng, 'The Dispute over the South China Sea Islands' (1975) Texas Internationa! Law Journal, at p. 273.

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prefaced by Emperor Renzong himself) reports patrols going right to the islands. However, the quotation used is less demonstrative when it is put back in its context, which appears to be a geographical reconnaissance expedition to the Indian Ocean rather than patrols allegedly policing Chinese lands. So although this confirms China's knowledge of the Paracels, it does not show that China took possession of them. Similarly, the fact that, in the 13th century, a Yuan emperor, himself a passionate astronomer, ordered a renowned astronomer by the name of Guo Shoujing to take readings, some of which were carried out in the Paracels, does not prove anything either. Since readings were taken partly on Chinese territory and partly outside it, the fact that some of them were made on the islands is not sufficient to furnish proof of the Chinese territoriality of these islands. In their reasoning, the Chinese authors rely on a further event which occurred in the 13th century (1293), and which is related in Yuan Shi. According to this, an expedition led by Shi Bi embarked to attack Java. Travelling by junk, an army of around 5,000 men sailed south, camping on certain islands. However, the itinerary described does not allow the route, and therefore the islands, to be clearly identified. Nor is the text relevant to territorial control of these spaces, and provides no proof of this. And some authors have speculated that the islands mentioned might rather be those of Macclesfield Bank.28 The hesitations on this point can be better understood if they are seen in the context of the maritime history of this region of the world. The preferred shipping routes hugged the coast, allowing for stopovers, trade and contacts, all the more so in that navigation was for a long time not reliable enough to avoid shipwreck in the dangerous ground of the archipelagos.29 28

29

An example is the view taken by Groeneveldt, the translator of Shi Bi Zhuan (History of Shi Bi), for whom Qizhou (the Seven Islands) refers to the Paracels and Wanlishitang to Macclesfield Bank. However, Pierre Yves Manguin, in a work published by the Ecole Francaise d'Extreme Orient (Les Portuguais sur les cotes du Vietnam et du Champa, Paris, 1972) does not share Groeneveldt's view and believes that Qizhou refers to the Tayas and Wanlishitang to the Paracels. On the lack of identification of islands mentioned in these accounts of episodes dating back to the 13th century, see M.S. Samuels, op. cit., pp. 18-19, and his conclusions: 'Despite greatly increased contact with the seas during the fourteenth century and despite the power of the Yuan navy, the islands of the South China Sea were apparently not absorbed into the empire or colonized.' (p. 20). This incontrovertible fact is disregarded by some authors, for example, Jianming Shen, 'International Law Rule and Historical Evidence Supporting China's Title to the South China Sea Islands' (1997) Hasting International and Comparative Law Review, vol. 21, number 1, at pp. 17 and 26.

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The Chinese use certain archaeologists' reports to support their claim that Pattle Island once harboured a pagoda, now destroyed, which they did not actually see, but which is said to have been a Chinese remain. Scientific verification of this claim is not possible. Lastly, the Chinese documents refer to patrols at a later date, since it is asserted that between 1710 and 1712 under the Qing dynasty, Wu Sheng himself, Vice-Admiral of the naval forces of Kwangtung, led a patrol at sea. The itinerary is given, together with a commentary that Qizhouyang (Sea of the Seven Islands), which the patrol traversed, corresponded to the outer reaches of the Paracels. However, following the itinerary claimed on the map, it is impossible not to notice that it corresponds to a journey around Hainan Island, not a voyage to more distant seas. The text reads: 'Departing from Qiongya, he passed by Tong Gu and traversed Qizhouyang and Sigengsha, thus covering 3,000 li.' Qiougyo is the chief town in the north of Hainan Island (Hoihow), Tong Gu is a mountain on the north-east point of the island, Qizhouyang designates the Taya Islands group and Sigengsha is a sandbank to the west of Hainan. There is nothing here to suggest maritime control over the archipelagos. The signs required by the international law of the time are missing. As far back as the 16th and 17th centuries, a distinction was made between discovery during reconnaissance (discovery) and discovery with appropriation (finding). On 18 December 1523, the Holy Roman Emperor Charles V used this distinction in his instructions to Ambassador Juan de Zuniga, recalling that a territory merely encountered en route by the King of Portugal's ships could not be regarded as having conferred on him title to that territory, since there was no taking of possession,30 The Chinese claims are contradicted by other sources within China itself. There are many old geographical documents describing and delimiting the territory of the Chinese Empire. With a fair degree of concordance, they describe Chinese lands as ending at Hainan Island in the south. Writings of the 12th century, then the 17th and 18th centuries appear to confirm this, including a geographical description of the prefecture of Quiongzhou and a geographical description of Kwangtung dated 1731, a work submitted to the Emperor of the Qing in year 9 of the reign of the Wengzheng (1731). The map of Kwangtung Province does not mention the archipelagos.

30

Friedrich A.F. von der Heydte, 'Discovery, Symbolic Annexation and Virtual Effectiveness in International Law' (1935) American Journal of International Law, at pp. 449 et seq.

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Close scrutiny of the references produced by the Chinese certainly reveals an awareness, far back in time, of the existence of many islands scattered throughout the South China Sea. However, such references do not take us any further and are not enough to substantiate the claim that China was the first to discover, exploit, develop and administer the archipelagos.51 The old tale that in 1754 some Vietnamese sailors, who had lost their course near the Paracels and drifted as far as the Chinese coast, were escorted home without further protest, following an investigation by the Chinese authorities, leads us to believe that there are no grounds for this claim." It is true that, desirous to expand its trade, China pursued a relatively active maritime policy until the 15th century, through its various ruling dynasties. Chinese works of the time may indeed mention the islands, although they do not provide any convincing arguments supporting the assertion of a Chinese title to sovereignty. On the other hand, from the 15th century onwards, 'the Chinese presence in and control over the shipping lanes of the South China Sea lapsed into memory'. It is therefore surprising that many authors, in various publications, have often concluded that China's ancient historical title is a solid one. However, as has been remarked elsewhere: The majority of these studies have been undertaken by overseas Chinese, who were not necessarily free from bias when selecting information for examination; the arguments of the South Vietnamese Government have often been rejected without close scrutiny.33 In some slightly more guarded documents the idea is put forward that, over the course of these historical periods, China acquired merely an 'inchoate' or incipient title. This concept is accepted in international law. However it must be based on adequate factual grounds. When Mexico, opposing France's claim, contended in the 19th century that Clipperton Island had belonged to it before the expression of French rights, the arbitrator appointed to settle the case sought in vain any right to the island which might have been formed by Spanish navigators:

31 32 33

(1988) Nouveties sinologiques, 8, at p. 5. Le Qui Don, Miscellany on the Government of the Marches, Book 2. Chi Kin Lo, China's Position towards Territorial Disputes, the Case of the South China Sea Islands (London, Routledge, 1989), p. 14.

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That they [Spanish navigators] might have known it before the log-books of the French vessels La Princesse and La Decouverte, dated in 1711, had identified and described it is a conjecture more or less probable, but from which one cannot draw any decisive argument. The arbitrator continued: The proof of an historic right of Mexico's is not supported by any manifestation of her sovereignty over the island.34 This is also the logical conclusion when, disregarding the verbose assertions in many works or articles, we examine the elements put forward in support of an ancient title with respect to China. During that first period (which we have identified as being before the 18th century), were there any other displays of interest in the archipelagos by other peoples? The documents produced by the Vietnamese These documents also confirm that the archipelagos were known far back in time. From the 18th century onwards, this knowledge was transformed into an actual taking of possession. The paucity of official Vietnamese documents springs from the fact that many were looted, burned or destroyed in the course of past wars, so that it is barely possible to go further back. From what is available (in references at least) it is clear that, as in the Chinese literature, mention was made long ago of islands and archipelagos. Maps which mention the Paracels, probably dating from the end of the 15th century (Emperor Le Thanh Tong), are reproduced in a publication of the Historical Research Institute (Hong Duc Ban Do, Saigon, 1962, p. 218); they are also mentioned in the Hong Duc atlas, a work dating from the 17th century conserved in Japan. The first traces of the assertion of a right appear in 1776 in Phu Bien tap luc (Miscellany on the Government of the Marches), by Le Qui Don. This dates satisfactorily the first legal certainties of the 18th century. This work, written by an encyclopaedist who held the post of Vice-Governor, described the archipelagos (as lying 3 days' and 3 nights' journey away, which locates them quite accurately) and refers to their exploitation for economic gain, 34

Arbitral Award, Clipperton Island (1932) American Journal of International Law, at p. 390.

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already well organized by the rulers of Annam. The work contains a dated list, established after perusal of the registers kept by the rulers, of the wealth yielded: I have myself examined the registers of Cai doi thuyen, and found the following: — year Nham Ngo (1702), the Hoang Sa Company found 30 ingots of silver — year Giap Than (1704), 5-100 measures of pewter — year At Dan (1705), 126 ingots of silver. Between the year Ky Sun (1709) and the year Quy Ty (1713), over a five-year period, the Company collected several measures of tortoiseshell and sea cucumber. Sometimes it found only a few china bowls and two bronze cannons.35 The same author refers to known events, i.e. naval battles between the Dutch fleet and the Nguyen navy (1643-1644). These events confirm that the rulers of Annam had an effective navy and sought to control the seas. Can we therefore conclude that such organized exploitation was even older than the precise mention in the registers? It is impossible to maintain this contention, owing to the absence of earlier evidence. On the other hand, from the early 18th century onwards, the evidence of Annamese administration is well established. Mr Le Fol, Chief Resident of France in Annam, wrote to the Governor General of Indochina, on 22 January 1929, stating, 'The archipelago (Paracels) seems to have remained res nullius until the beginning of the last century'. In the same correspondence he provided information on the administration of the islands by former dynasties from the early years of the 19th century onwards. Doubtless his words, the words of a man carrying out his duties in the region of Vietnam most closely concerned by the historical aspect of these issues, were based on some knowledge of the archives. However, he did not know them sufficiently well to date the Annamese administration with accuracy, which a thorough examination of the archives would have allowed.36 Thus, in the context of the 18th century, it may be said that: at the time the existence of the Paracels was generally known; China has been unable to invoke any act of taking possession corresponding to the criteria described above; Vietnam possesses, in the work of Le Qui Don, the first document

35 36

Le Qui Don, Phu-bien tap-luc. Miscellany on the Government of the Marches. Annex 8.

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mentioning acts corresponding to a certain administration of the archipelago, dating from the early years of the 18th century. In the case of the Spratlys, their existence was probably known, although the distinction between the Spratlys and the Paracels (in the available documents) was ill-established. There is nothing which allows us to say that China took possession of them. The administration by the Nguyen rulers of the Spratlys at the same time as the Paracels, from the 18th century onwards, is a plausible hypothesis. There is no documentary evidence in this case of any interest in the islands at that time on the part of Indonesia, Malaysia or the Philippines. THE AFFIRMATION OF SOVEREIGNTY (18TH TO 19TH CENTURIES) The preceding section drew attention to the presence of a first element. It derives from a document of 1776 (Miscellany on the Government of the Marches) in which the author, who was then carrying out the duties of mandarin as deputy governor of two provinces, relates, drawing on reports from the early 18th century, that the rulers of Annam had founded the Hoang Sa Company sailing to the islands in the second lunar month and returning in the eighth in order to harvest the produce of the sea and gather booty from shipwrecks. It needs to be seen whether this indication was subsequently confirmed, whether consequently a right opposable to other States was created in the islands, what the scope of this right was and lastly whether competing rights were expressed. The Vietnamese documents of the 18th and 19th centuries There are many of these documents, which on the whole concur, are supported by authoritative foreign accounts and which point towards the affirmation of a title of sovereignty. Numerous Vietnamese maps, atlases or geographical works designate the archipelagos as part of Vietnam, such as: 37

Giap Ngo Binh Nam Do of 1774 Dai Nam Nhat Thong Toan Do of 183 8 Dai Nam Nhat Thong Chi of 1882.37

These works, indicated in the document produced in 1981 by the Ministry of Foreign Affairs of Vietnam, may be consulted in Hanoi, at the Institut d'Histoire Nationale for instance.

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The effective administration of the archipelagos appears in various documents available in Vietnam. The most important of these are: The Authentic Writings on Dai Nam compiled between 1821 and 1844, Dai Nam Thuc Luc Tien Bien concerning the period 1600-1775 and Dai Nam Thuc Luc Chinh Bien relating to the subsequent period; - the geography of unified Vietnam edited from 1865 to 1882, Dai Nam Nhat Thong Chi; - the Dai Nam administrative repertory: Kham Dinh Dai Nam Hoi Dien Su Le, 1843-1851; - certain reports filed in the Ho Chi Minh City archives. Some of these documents bear the seal of the King or comments in red ink, a sure sign of the King's handwriting. They make it abundantly clear that the Vietnamese emperors pursued the task of organizing (as mentioned in an account of 1776) a maritime company whose purpose was the economic exploitation and maritime exploration of the archipelagos. These measures formed part of national policy with a concern for maritime interests. Owing to the rigours of the tropical climate, the small islands were not suitable for farming. Some of them were covered in guano, though the use of this fertilizer did not begin until the 20th century. Chroniclers in the 19th century report that the resources consisted of tortoiseshell, mother of pearl, sea cucumbers and turtles, as well as articles from shipwrecks (Dai Nam Nhat thong chi). Early in the 18th century, the rulers of Nguyen set up governmentsponsored maritime companies. How they functioned and were organized is described in detail in the above-mentioned work by Le Qui Don (1776). Some of these companies specialized in harvesting produce from the sea on islands near the coast, while for others it was collecting articles or merchandise from wrecks on islands out to sea. Le Qui Don describes these articles as muskets, swords, cannons, gold, silver, lead, pewter, ivory, porcelain, woollen cloth, fabric, wax etc.... He says that these companies were supposed to make out itineraries or draw up maps for the rulers of Nguyen and precisely indicates that there were 70 men to a company, that they were recruited in the district of Binh Son, that volunteers were exempt from personal taxes, from fatigues and from tolls. There was a system of punishments for professional misconduct. On the other hand, such service could provide entitlement to a commission or to material rewards. The tours of duty lasted from the 2nd to the 8th month of

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the year, those concerned sailing in flotillas of five junks carrying six months' supplies.38 From 1771 to 1802 the history of Vietnam was marked by dynastic conflict.39 When the Nguyen dynasty was restored, Emperor Gia Long made an inventory of all the lands in the kingdom. The maritime companies, then presided over by four mandarins, were to play an important role in compiling a register of the archipelagos. In 1815, the Emperor appointed Pham Quang Anh commander of the brigade given the task of exploring the archipelagos and of drawing up a map of sea routes there. In 1816, according to certain accounts,40 Emperor Gia Long wished to travel to the islands in person in order to take possession of them and add 'this flower to his crown', yet this information is not confirmed, perhaps because the Emperor did not travel without a retinue consisting of thousands of people, thus making such a journey to the islands problematic. What is more likely is that he dispatched an official, Pham Quang Anh, in his place. The Authentic Writings on Dai Nam (Dai Nam Thuc Luc Chinh Bien) relate that, in 1815, and again in 1816, the King ordered the Hoang Sa Company to travel to the islands in order to make surveys, inform him about maritime routes and draw up maps. In 1833, his successor, Minh Mang, gave the competent Ministry instructions for the erection of a temple and monument and for the planting of a great many trees: The trees will grow and provide greenery. Easily visible to navigators, they will prevent many a ship from running aground. These instructions were reiterated in 1835, the project having been postponed owing to the violent wind and heavy seas. The work was duly carried out and orders were given by the King for those responsible to be recompensed.

38

39

40

See Luu Van Loi's analysis of Miscellany on the Government of the Marches, (PhuBien tap-luc by Le Qui Don) (Hanoi, 1994, mimeographed). See Nguyen K.hac Vien, Vietnam une tongue histoire (Hanoi, Editions en langue etrangere, 1987). This is the account by Monsignor Taberd in The Journal of the Asiatic Society of Bengal (September 1837) and that by Jean-Baptiste Chaigneau, Counsellor to Emperor Gia Long under the Vietnamese name of Nguyen van Thang, author of a Memoir on Cochin China in 1820.

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In 1836, Emperor Minh Mang carried on his predecessor's plan to survey the entire territory. More detailed instructions were given in the matter of cartography. Everything shall be noted and described in detail for submission to the supreme attention of His Majesty The Emperor. As soon as the junks reach any island or sandbank, regardless of what kind, they shall from that point measure the length, breadth, height, surface area and circumference of that island or sandbank, the depth of the surrounding waters, identify any submerged sandbanks or reefs, record whether access is dangerous or poses no problem, undertake a careful examination of the terrain, take measurements and make a sketch. The same year (1836), the King ordered the Commander of the Navy, Pham Huu Nhat, to lead the fleet himself and to prepare large wooden posts to mark the places inspected. The following inscription was to be engraved on each post: 17th year of the reign of Minh Mang by imperial order Commander of the Navy Pham Huu Nhat came here to Hoang Sa for reconnaissance and to make topographical measurements and leaves this post as record thereof. In 1837, the Minister for the Interior prepared a report for the King on the Company's expenditure. In 1838, the Mandarin of Quang Ha Province requested the King to abolish the tax levied on the Company's ships. The King assented. The same year, the Minister for Public Works prepared a report for the King on the Company's activities. The Paracels are described in it. In 1847, under Emperor Thieu Tri, the competent Minister prepared a report for the King on the need to postpone the Company's voyages for lack of funds. In 1867, 20th year of the reign of Tu Duc, a number of sailors having lost their lives during the voyage to the archipelagos, the King conferred upon them the title of hero. These details are taken from Vietnamese historical documents, whose authenticity has been acknowledged by various foreign authors. Two cases in point are Chaigneau (Memoir on Cochin China) and Gutzlaff (1849, Journal of the Royal Geographical Society. On the Cochin Chinese Empire). It can therefore be argued that the Empire of Annam, as a pre-colonial State, displayed specific interest in the archipelagos and performed acts of admin-

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istration there at a time when no other State had shown any interest in them as sovereign.41 The formation of a right to the islands and the scope of this right The documents produced reveal governmental activity by Vietnam in the archipelagos, a historically established fact. What now needs to be done is carefully to define the boundaries of such activity, its date, intensity and geographical spread. The first authoritative text is that of Le Qui Don in 1776. He describes in detail the exploitation of the archipelagos from 1702 onwards. Thus the intention of sovereignty on the part of the State was certain from the early 18th century onwards. The Vietnamese authorities state that the Hoang Sa maritime brigades operated continuously from the first Nguyen dynasty onwards (15581786).42 The Hoang Sa Maritime Company may well have been in existence before 1702, indeed this is quite plausible. Nevertheless, information based on verifiable historical documents goes back no earlier than the early 18th century, and it is impossible to extrapolate with certainty. Be this as it may, from that date onwards, there was a real intention to assert sovereignty over the islands, since it was expressed by the type of acts singled out in legal precedents.43 We shall not dwell on expeditions whose purpose was to compile maps and to discover shipping routes. Such ventures are initiated by geographers and navigators and help to promote a general, universal knowledge of a land or maritime region (even though China claims that it ended the reconnaissance surveys carried out by the Germans in the islands in 1883, on the grounds that it wished to terminate such activities, and by so doing stamp its authority).44 Many other activities which might be characterized as conduct of a State - forming a special maritime company, financing, profiting from, managing and recompensing that company, deciding to erect constructions on the 41

42

43 44

76.

See Dieter Heinzig, Disputed Islands in the South China Sea (Wiesbaden, Hamburg Institute of Asian Affairs, 1976). United Nations A/42/346, 2 May 1988, letter dated 2 May 1988 from the Charge d'affaires ad interim of the Permanent Mission of Vietnam to the United Nations Organization addressed to the Secretary-General. See pp. 55-56 supra the examples taken from the Minquiers and Ecrehos case. Statement cited without a specific reference (1988) Nouvelles sinologiques, no. 8, at p.

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territories, intending them to have symbolic value such as a monument or boundary-marker denoting sovereignty - were acts which could not be misinterpreted. The imperial authorities of Annam carried out these various kinds of activities on the islands. Even disregarding the personal, ceremonial visit by Emperor Gia Long in 1816, on the grounds that it is mentioned by French authors alone,45 there are still enough concordant, consistent facts to bear out the assertion that, between the 18th century and the onset of the colonial period, the Vietnamese authorities had acquired rights of sovereignty over the archipelagos in accordance with the rules of international law applicable at the time. These acts were effective, their effectiveness meeting both the requirements of the time and the topographical and physical conditions in the islands, which made widespread, permanent occupation impossible. They were seasonal acts, but that arose from the physical and climatic characteristics of the islands. In his Arbitral Award of 28 January 1931 in the Clipperton Island case between France and Mexico, King Victor Emmanuel III of Italy recognized the validity of an occupation based on acts of supervision.46 These were acts of public authorities at the highest level. They leave no doubt as to the intention to assert sovereignty. In the absence of any challenge whatsoever, these acts constituted what might well be called peaceful, uninterrupted administration of the territories. They correspond to the assertion found in the administrative register of Dai Nam (Kham Dinh Dai nam hoi dien su le, 1843-1851): The Hoang Sa are an integral part of our maritime territory and are of great strategic importance. Nevertheless, the geographical scope of the rights thus asserted must be stated more precisely, examining the whole period from ancient times to the French protectorate. The date of consolidation of the protectorate (1884) coincided with the Berlin Congress, which opened a fresh chapter in the history of international law. The assertion of sovereignty by the Vietnamese appears to have concerned a larger area than the Paracels alone. There are two pointers to this. Vietnamese geographical works of the 19th century mention 130

45 46

See p. 68, note40. Arbitral award, Clipperton Island (1935) American Journal of International Law, at p. 390.

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elevations, i.e. land standing clear of the water.47 Yet the figure of 130 does not correspond to either archipelago alone; instead it corresponds quite accurately to the two groups together.46 Also, Annamese records clearly show that there were several companies with distinct geographical destinations. The Hoang Sa Islands lie east of Ly Island. From the port of Sa Can, it is possible to reach them in three or four days' journey, under a favourable wind. The islands number over 130 rocks, lying between one day and several hours apart from each other. At their heart stands a bank of yellow sand, stretching endless thousands of li, commonly called van-ly-trug-sa-chan, or the 10,000-li sandbank. There is a well on this bank, with a fresh water spring. Seabirds congregate in these places in countless numbers. The products are many: hai-sam, doi-moi, mother-ofpearl, large turtles, etc. Wrecks are commonly found. The beginning of the Nguyen reign saw the formation of the Hoang Sa Company, made up of 70 men from the village of Vinh-An. Each year, in the third month, the company embarked to harvest the products of the sea which it brought back to the port of TuHien in the eighth month. A Northern Sea Company was also founded, under the same command, to collect the products of the sea on the Kouen-Leuen Islands in the Northern Sea. The east of the islands lies close to the prefecture of K'iong Chow on Hainan Island, which belongs to the Chinese Empire.49 One of the companies founded in the 19th century was called Bac Hai, from the name then given to the Spratly Islands by both the Vietnamese and the Chinese. These particulars strongly suggest that the emperors, minded to profit from both archipelagos, found a way to do so by bringing under the same command two companies with separate geographical destinations, an idea supported by the map compiled in the 14th year of the reign of Minh Mang.50 This map shows a group of islands distinct from the coastal islands, and

47

48 49 50

Particularly in Phan Huy Chu, Regulations of Successive Dynasties by Subject-Matter (Lich Trieu hien chuong loai chi), 1821, and in Dai Nam Nhat Thong, A Geographical Description of Reunified Dai Nam, written between 1865 and 1882. See list of islands, Annex 4. Annamese records, text cited by P.A. Lapique. Reproduced in Annex 9.

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depicted with two different names, harking back to the differentiation between the two archipelagos. The possible expression of competing rights A right comes into existence only if, once asserted, it is maintained under certain conditions. So dictates the machinery of intertemporal law. Any immediate challenge to the assertion of the right, any impediment to its exercise, weakens the right and may call it into question. We must therefore examine the respective attitudes of the possible rivals. The case of China China's situation must be studied in the light of two questions: did it, by its own actions, acquire autonomous rights competing with those of Vietnam during that period; did it acquire rights through those of Vietnam, under the relation of vassalage between the two States? a) The absence of historical Chinese titles to the islands As seen in the preceding section, the Chinese documents fail to establish any acquisition of sovereignty in the period prior to the early 18th century. After that time, did any new facts establish rights for China? One of the brochures published by China contains the following account: Under the Qing, Guo Songtao, the Chinese Minister accredited to Great Britain, journeyed to England in 1876 in order to take up his post. He wrote the following passage in Shi Xi Ji Cheng (Notes on my Official Travels to the West): "The vessel, having covered 831 li, arrived at noon on the 24th day (of the 10th month of the 2nd year of the reign of Guangxu), at a point 17° 30' north of the equator and 200 to 300 li south of QiongZhou. The sailors call this place the China Sea. Not far away, to the left, lie the Paracels (the Xisha Islands) which yield sea cucumbers, as well as coral of mediocre quality. These islands belong to China.' The document cited does not bear a precise date, and no reference is given. Assuming it to be authentic, and authentically translated, it is an account of a journey. The author was not writing in an official capacity, and even if he was a diplomat rejoining his post in Europe, the mention in passing that the

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islands belong to China, however interesting, is not an adequate foundation for what certain authors have called a claim by China in the distant past.51 In all these documents it is noted that Chinese fishermen have visited the islands since time immemorial.52 However, as we know (see Section I), these were private, non-proprietary acts, which did not correspond to a taking of possession, nor to the intention to assert sovereignty, since occupation 'by individuals who are not acting in the name of their government but who are pursuing their own interest does not constitute possession'.53 All the more so in that the same archipelagos were also visited by Annamese fishermen over the same periods. In fact, there is no trace that China ever opposed the assertion of sovereignty by Emperor Gia Long and his successors, nor did it do so throughout the 18th century, nor, especially, in the 19th century when the rulers of Vietnam organized the exploitation of the islands under their jurisdiction on a sounder administrative footing. We even find statements in historical Chinese writings which confirm the absence of Chinese claims in history. In Hai Luc we read: Van ly truong Sa is a sandbank rising above the sea. Several thousand leagues in length, it forms a rampart on the periphery of the Kingdom of Annam.54 The conclusion which follows is: There is no evidence here that the Ch'ing State had in any sense absorbed the islands into the imperial domain.55 Not only did China itself therefore not carry out any act of sovereignty, but further, by its silence, it appears to have acquiesced in the taking of possession by the Vietnamese. An explanation has been put forward by some historians: 51

See in particular Jeanette Greenfield, China's Practice in the Law of the Sea (Oxford, Clarendon Press, 1992), pp. 154-155. The author quotes the Chinese texts analyzed above, texts whose very titles are revealing (e.g. Description of the Barbarian Lands) and which contain a description of the islands as places foreign to China. She concludes that there is a Chinese claim to the archipelagos. 52 Particularly Window, op. cit., p. 25. 53 Moore 5. p. 5036 (original Spanish). 54 Quoted in volume 13, folio 4, page 2 of Hai-Quoc do chi, written in the 22nd year of the reign of Dasquang of the Thanh (1730). Reproduced in the archives of the French Foreign Ministry. Box file AS 1840 China 797. 55 M.S. Samuels, op. cit., p. 25.

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Since the far-off days of Gia Long, the only neighbours who might have intervened in the Paracels, the Chinese, were too far away. The occupation of Hainan was little more than nominal. Until very recent times, the Chinese occupied only a narrow coastal strip in the north of the island, and one or two ports on the south coast.56 Thus it is plausible that China took no interest in the archipelagos throughout the 19th century (moreover it was to give proof of this in the last years of the century). China's indifference to the archipelagos at that period is confirmed by two documents: the Chinese Map of the Unified Empire by Hoang Chao Yitong Yudi Zongtu published in 1894. On that map Chinese territory is shown extending only as far as Hainan Island. Furthermore, the Chinese geography textbook Zhongguo Dihixue Jiao Keshu, published in 1906, states on page 241 that 'the southernmost point is the Yashou coast of Quongzhou Island at latitude 18°13' north'. These documents published at the end of the period under consideration confirm that until then (late 19th century), China had voiced no clear claim to either archipelago. This fact is attested by Chinese researchers themselves. For example, in a thesis for a French university, Jian Zhou notes in his chronology, for the year 1902, a 'first Chinese reconnaissance in the vicinity oftheXisha Islands (Paracels)'.57 This reveals quite clearly that, prior to that date, there had been neither reconnaissance nor a fortiori administration. The author contradicts himself since in the same thesis and without citing precise references, he contends that 'the Chinese Government under the various dynasties had administratively annexed the islands and had placed them under the jurisdiction of the authorities of Kwangtung Province' (p. 265). Authors who are not content to confirm pre-established positions, but who deliberately examine each element of the reasoning in a quest for objectivity, are therefore led to the conclusion that China has no ancient historic title to the Paracels and Spratlys. Such a hypothesis could be defended only on the basis of unpublished documents in addition to all those on which this study has been based. The only undeniable fact is the presence of seasonal Chinese fishermen. Yet there were also fishermen from other

56 51

P.A. Lapique, op. cit., p. 4. Zhou Jian, Les frontieres maritimes de la Chine, thesis completed under the supervision of Professor Hubert Thierry, University of Paris X, Nanterre, p. 562.

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countries. In international law this does not constitute the basis for legal title.58 A simple affirmation of the rights of sovereignty or a manifest intention to render the occupation effective cannot suffice.59 b) The non-existent consequences of vassalage Did not China's suzerainty over Vietnam, however, confer rights through Vietnam's own actions? China's response to Vietnam's detailed arguments in favour of its acquisition of sovereignty through acts dating back to the 18th century has been that the Kings of Annam never acted other than on behalf of their suzerain, the Emperor of China. Accordingly, their acts merely 'confirmed Chinese sovereignty over islands which were not Annamese.' 60 The nature of this tie of vassalage therefore needs to be elucidated as well as its consequences for the jurisdiction of the islands. The Kingdom of Vietnam (Dai-Co-Viet) was founded in the 11th century by the creation of a political power and administration independent of China, but (prudently) acknowledging Chinese suzerainty. This tie of vassalage is difficult to define in legal terms, as its precise meaning is vague and has fluctuated in intensity down the ages. Any comparison with European feudalism, a more highly structured model and one better known to western jurists, would be rash. The tie would appear to have consisted above all of religious allegiance accompanied by a tribute of varying frequency. As for the legal validity of these reports, it obviously cannot be assessed according to the international rules of the community of European States, with which they could scarcely be reconciled, bearing in mind the two different historical epochs involved and the gulf between European concepts and those of Asian society.61 58

59

60

61

See Michael Bennett, 'The People's Republic of China and the Use of International Law in the Spratly Islands Dispute' (1992) Stanford Journal of International Law, at pp. 434436. Arbitral Award of 6 June 1904 by King Victor Emmanuel III of Italy, Brazil v. the United Kingdom, Reports of International Arbitral Awards XI, p. 21. See Jean-Pierre Ferrier, op, cit., p. 180 (The author in no way endorses this Chinese argument). Huan-Lai Cho (Chinese Vice-Consul in Saigon), Les origines du con/lit franco-chinois a propos du Tonkin jusqu 'en 1883 (Saigon, Imprimerie Albert Portail, 1938), p. 82.

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The Viet dynasty needed Chinese blessing in order to gain recognition, just as the modern State cannot do without international recognition to survive. Also, from the Chinese standpoint, the idea of two separate nations is scarcely appropriate. What would be more appropriate is the idea of two contiguous worlds: the civilized and the non-civilized. The civilized world, the Confucian one in other words, was organized around the Emperor (whom we call the Emperor of China); to participate in this world to which the Dai Viet belonged, since it used the Chinese script and observed the Chinese rituals, the hallmarks of civilization, it had no alternative but to accept vassal status with respect to the Emperor. What this means is that this tribute in fact concealed an extremely complex system of relations. For China, it indicated the maximum dependence in which it could hope to maintain the Dai Viet without provoking any reaction against imperialism on its part. For the Dai Viet, on the contrary, it indicated the maximum independence to which the kingdom could aspire without provoking any imperialistic reaction on the part of China. In either case, bearing in mind the Confucian nature of the two countries, the tribute, in part at least, evinced common adherence to one system of values.62 The Chinese themselves had a vague, extensive concept of it, so much so that the 'Official Yearbook of the Chinese Government classed as vassal States in the 19th century: Annam, Burma, Siam, Laos, Great Britain, the Netherlands, Italy, Portugal and the Holy See!' 63 In no way is this a legal system of the kind which, in other cases, has been characterized as 'semi-sovereignty'. The semi-sovereign State is characterized by the fact that its international status is never complete.64 In such cases, certain international powers are relinquished to the suzerain and part of the vassal's sovereignty is amputated. There was nothing of this kind in relations between Annam and China. The vassalage nominally accepted by Annam, in the form of honorary services, never allowed China access to the foreign relations of ancient Vietnam. The mandatory deference by the court of Hue to the court of Peking was purely formal. It was a matter of 'a 61

63 64

Francois Joyaux, La Chine et le reglement du premier conflit d'Indochine (Geneve, 1954, Publication de la Sorbonne, 1979), pp. 44-45. Quoted by Jean-Pierre Ferrier, op. cit., pp. 180-181. See on this point Nguyen-Huu-Tru, Quelques problemes de succession d'Etats concernant le Vietnam (Brussels, Bruylant, 1976), pp. 26 (in particular note 3) and 27.

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nominal, ritual and wholly moral suzerainty rather than actual suzerainty of a political kind.' 65 Ever since the State of Vietnam was created by throwing off the Chinese yoke, the history of Sino-Vietnamese relations has seen many Chinese military ventures against Vietnam. When victorious, the kings of Vietnam never failed to seek to appease their gigantic neighbour by symbolically paying liege. It was China's very indifference that enabled Vietnamese independence towards it to develop during the years of French settlement (prior to the protectorate). The Chinese argument derived from vassalage can therefore scarcely have any legal significance. There is a major precedent in case-law which reinforces this assertion. In the Minquiers and Ecrehos case, in fact, views comparable to those expressed today in relation to the archipelagos in the China Sea were put forward. France held that it possessed original rights simply by virtue of the fact that the Dukes of Normandy were the vassals of the Kings of France and that the Kings of England had received the Duchy of Normandy in fee. To this the United Kingdom objected that the title of the French Kings in respect of Normandy was only nominal. Noting that these were uncertain and controversial views on a remote feudal epoch, the Court found that, even if the French Kings had had an original feudal title also in respect of the Channel Islands, that title had lapsed in 1204, and the Court added: Such an alleged original feudal title of the Kings of France in respect of the Channel Islands could today produce no legal effect, unless it had been replaced by another title valid according to the law of the time of replacement. It is for the French Government to establish that it was so replaced.66 The following conclusions may be drawn from this for the present case: the vassalage of Vietnam with respect to China was certainly much more nominal than that of the Dukes of Normandy with respect to the Kings of France (even assuming the comparison can be made in such different political and cultural settings); the conclusions of the Court, valid for European feudalism, are also a fortiori valid for relations between Vietnam and China; the vassalage of Vietnam ended on the very day of the signature of the 1884 Treaty of French Protectorate. On that day 'the symbolic Chinese seal, a handsome article worked in gold and silver, surmounted by a camel 65

66

G. Taboulet, La geste francaise en Indochine (Adrien Maisonneuve, 1956, vol. II), quoted by Nguyen Huu Tru, op. cit., p. 27. International Court of Justice, Reports, 1953 at p. 56,

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couchant, a gift from the Emperor of China to Gia Long in 1803, was melted down in the presence of Patenotre, the French plenipotentiary, during a solemn ceremony'.67 This change was apparently greeted by Chinese indifference. At any event, China did not express the least desire to retain any of the rights acquired by Vietnam throughout a long history over its land or island territory. No reservation was expressed by China at the time to this effect. All the conditions required for application of the dictum of the International Court of Justice in 1953 were therefore met: the original feudal title 'could today produce no legal effect, unless it had been replaced by another title valid according to the law of the time of replacement'. The time of replacement is the one lasting up to the French protectorate. At that time, as we have seen, China had not acquired any title to the archipelagos according to the law of the day. Therefore nothing could have replaced a vassalage which had disappeared after having been chiefly symbolic. It is impossible to divide the territory of Vietnam in this way. In losing (feudal) control of Vietnam, China lost control over the archipelagos, that is if it actually ever took any interest in the archipelagos, and there is no evidence to this effect. Lastly, it will be noted that, when China alleges vassalage in order to claim that the rights acquired by Vietnam would revert to it, then (if the argument of vassalage is rejected) China nevertheless acknowledges that rights had indeed been acquired. They cannot but have been acquired by Vietnam. The other States in the region Did other States (during the same period) express the intention to exercise sovereignty? The reply to this question needs no hesitation. None of the other States in the region had made any claim at that time. None today seeks to found claims upon acts which took place in the 19th century or earlier. It should be noted that, in 1898, the treaty concluded in Paris between Spain and the United States of America to end the war between them, included the Philippines under American administration. There was no mention whatever of the Spratlys. The conclusion reached in this chapter is therefore that: 67

Nguyen Huu Tru, op. cit., p. 28, note 8.

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- At the time of the signature of the Treaty of French Protectorate in 1884, Vietnam possessed a right over the archipelagos, a right unchallenged and going back almost two centuries, in accordance with the legal system of the time. - This right was undoubtedly exercised over the Paracels. It remains to be seen whether it was actually exercised over the archipelago as a whole. There is reason to think that the Vietnamese administration also included the Spratlys. But there is nothing specific to say that this then concerned the whole of an archipelago covering 160,000 square kilometres, or at least enough large islands to result, by extension, in a right over all of them. In that case, there is an 'inchoate title', which must subsequently be consolidated by its holders. At this point in the analysis, and subject to the reservations just made, we can echo Max Huber's comment and say that there is no manifestation whatever of the exercise of sovereignty over the islands by China or any other State, such as to counterbalance or cancel the manifestations of Vietnamese sovereignty. The problem then arises of whether or not the title was consolidated and above all maintained in relation to the evolution of international law.

Chapter III Subsequent Development of the Title

The turning point of 1884 is an important one for the archipelagos, marking as it does the beginning of the period of French colonization in Vietnam and also, coincidentally, the establishment (after the Congress of Berlin) of new rules of international law. While at first valid in the specific context of the Great Powers present in Berlin and relating only to African territories, the rules extended under the effect of custom and by application in jurisprudence to the point where they became universal. They were later followed by other fundamental changes in the law. Yet the period which then dawned was a tangled web of extreme complications both as regards the general situation in the two countries chiefly concerned (China and Vietnam), and as regards the administration and occupation of the two archipelagos. Was the right of sovereignty over the archipelagos, which had developed up to the 19th century in Vietnam's favour, consolidated and maintained, or did it disappear through the simple abandonment of these territories, or did it give way to another sovereignty and in what circumstances? First, we must outline the development of international law since 1884 (Section I). Then the situation in the archipelagos will be considered in relation to the two main historical periods: the years during which the French colonial State exercised international authority over Vietnam until 1954— 1956 (Section II), then the years when the Vietnamese people reappeared speaking for itself, but with the many complications and contradictions of the history of Vietnam since the end of the colonial war (Section III). One element will be analysed in an introductory paragraph thus dispensing with one argument relating to the Franco-Chinese Treaty of 26 June 1887, which had no bearing on sovereignty over the archipelagos. THE FRANCO-CHINESE TREATY OF 26 JUNE 1887 Where the acquisition of sovereignty is concerned, treaty titles occupy an important place, even though this is not necessarily decisive in all cases.

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True, inter-State relations are more solid if based on a written text, each word of which tells and to which the States have pledged themselves by their signature and ratification. States having acquired territories originally vacant by discovery followed by effective administration with the intention of exercising sovereignty, have thus traditionally sought firmly to base their rights by ensuring that they were recognized in written conventions concluded with third and sometimes rival States. However, and notwithstanding the solidity of the rights recognized by treaties, deriving from the principle of respect for an undertaking given (pacta sunt servanda), the treaty can only be the proof and support of effective administration. By itself it cannot make up for the lack of such administration. Still less could it entail the attribution of sovereignty to a State whose inactive title conflicted with an effective administration actually exercised by another State. This was the whole thrust of the award delivered on 4 April 1928 by Judge Max Huber in the Island of Palmas case. The Award states, among other things: Moreover, even if she (i.e. Spain) had acquired a title she never intended to abandon, it would remain to be seen whether continuous and peaceful display of sovereignty by any other Power at a later period might not have superseded even conventional rights.1 What has to be investigated, therefore, is both the reality of the administration of the islands and the intention to exercise that administration as a sovereign. However, it is still illuminating to establish whether there was a genuine treaty commitment with respect to these territories. Where the archipelagos in the China Sea are concerned, no such reference is made by either of the parties with respect to the period examined in the previous chapter. On the other hand, when during the colonial period France expressed interest in the Paracels and the French Government challenged China's right to grant concessions on the archipelagos, China sought to base its claim on various arguments. A Note dated 29 September 1932 from the Republic of China to the French Government based itself on the Franco-Chinese Convention of 26 June 1887, which traced the frontier between China and 1

Max Huber, Island of Palmas Award, 4 April 1928, op. cit., p. 850

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Vietnamese territory then under French control.2 The Chinese Government still holds to this view today. An example is a Chinese publication of 1956, which states: In Kwangtung, it is understood that the disputed points which are situated to the east and north-east of Monkai, beyond the frontier as fixed by the Delimitation Commission, are allocated to China. The islands which are east of the Paris meridian of 105°43' east,3 that is to say the north-south line passing through the eastern point of the island of Tcha's-Kou or Ouan-Chan (Tra Co) which forms the boundary, are also allocated to China. The island of Gotho [Kao Tao] and other islands west of this meridian belong to Annam. A Chinese author, Shao Xunxheng, bases himself on the terms of this Convention when contending, in an article published in Renmin RibaoPeking No. 3 of July 1956, that the Paracels and Spratlys lying east of this delimitation belonged to China under the same text. The French colonial power would thus appear, by this form of words which does not even mention the two archipelagos, to have abandoned them three years after extending its protectorate over the whole of Vietnam. This is an argument which is found in a number of western authors writing in English or French.4 However, there is good reason to consider this view irrelevant. For the Vienna Convention of 29 June 1969, which codified the rules for the interpretation of treaties, stresses the role of good faith in the interpretation and the need to interpret the texts in accordance with the ordinary meaning to be given to the terms and in the light of the object and purpose of the treaty (Article 31). The same Convention (Article 32) authorizes recourse to the preparatory work and to the circumstances surrounding the conclusion of a treaty where a first interpretation leaves doubt about its meaning or leads to an absurd result. The object and purpose of the 1887 Treaty were the delimitation of the frontier between Tonkin and China (indeed, this is the title of the Convention as formulated by its authors). The Convention relates to the land territories. Although indications of lines drawn in the sea are given in old conventions 2 3 4

See Annex 10 for this Note. In other words, at longitude 108 ° 03' 13 " east of Greenwi ch. See, for example, Jeannette Greenfield, op. cit., p. 155.

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such as the one concluded between France and China in 1887, as well as in others such as the 1886 Convention between France and Portugal,5 they cannot be used in contemporary maritime delimitation negotiations other than as pointers to be reviewed in the light of modern delimitation law.6 The only maritime territory on which the States claimed rights was the territorial sea. Its usual breadth was three nautical miles (the nautical mile is equivalent to 1.8 kilometres). For some States, it had been extended to six miles. There was neither contiguous zone, nor fisheries zone, nor continental shelf, all these institutions dating from after World War II. The frontier to be delimited was that between Tonkin and China. Only this part of the present Vietnam was concerned, which France referred to as Tonkin.

Hence, the interpretation of this text must mean that it can be seen as an indication of the attribution of the coastal islands of the two States. As a convention intended to settle the fate of the mainland, its additional purpose was to determine the closest islands. In the interests of simplicity and effectiveness, the text does not enumerate all of them. There are some very small ones and there would be the danger of omitting one or other of them from the attribution. The inclusion of the meridian is illuminating. Furthermore, if some new island were to be formed by the accumulation of sand or some other geological phenomenon, it would be attributed in pursuance of the text. This and nothing else is the meaning of the 1886 formulation. In support of this interpretation, it is very important to note that the line indicated has a precise starting point - the north-south line passing through the eastern point of the island of Tcha's-Kou (Tra Co) - but has no terminal point. This cannot be either chance or an oversight. The line has no need to end on a point. Its useful length is a function of the existence of the coastal islands.7 5

6

7

Note, in this connection, the somewhat analogous case between the Republic of Guinea and the Republic of Guinea-Bissau (Arbitral Award of 14 February 1985). A treaty of 12 May 1886 was disputed. The Treaty had drawn a maritime perimeter to separate the islands under French and those under Portuguese sovereignty. The Republic of Guinea held this line to possess the status of a maritime boundary. The Tribunal did not endorse this view, holding (paragraph 56 of the Award) that the object of the 1886 Convention had been the attribution of land territories alone. On the 1887 Convention and the maritime delimitation between China and Vietnam, see J.R.V. Prescott, The Maritime Political Boundaries of the World (London, New York, Methuen, 1985), pp. 224 et seq. This is indeed the meaning given to the terms of the Convention by the French diplomats, for whom this meridian marks only the maritime extremity of the boundary between China and Tonkin (Foreign Affairs Note of 20 July 1933).

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How could it possibly have been thought that the authors of the text had envisaged the legal validity of this line to where it intersects the coast of Annam? All the Vietnamese coastal islands in the region which lie south of Hue would have become Chinese by virtue of this text... Yet this is precisely what the Chinese authors do not scruple to defend, seeing as they do in this Treaty the conventional basis of China's title to the Spratlys. The recognition of China's rights therefore had no limits in the east and south-east. It can thus quite legitimately be asked why one should stop at these coral archipelagos? The rights conceded to China by France might thus be extended so considerably as to border on the absurd... and prompt China to claim a conventional title to the Philippines for instance. For are the Philippines not islands situated east of the meridian indicated? However, if the interpretation becomes absurd, the pointers provided by the Vienna Convention must be followed to see whether the preparatory work can confirm or invalidate it. The preparatory work does indeed illustrate the concerns of the two parties and what was at stake in their relations at the time. This was trade. France was dominated by the concern to secure the Indochinese market (an Indochina with delimited, and therefore controllable, land frontiers), and, in view of European rivalries in this field, to create the most favourable possible conditions for penetrating China. The question of the archipelagos was not raised by either side during the negotiations. Subsequent events were clearly to show that the years which followed were years of loss of interest on the part of these two countries in the Paracels and the Spratlys. The awakening would come later, prompted by other desires. It was then that China sought to invoke an ad hoc interpretation of the 1887 Treaty. France, however, the other contracting Party to this Convention, strongly protested against this interpretation: The provisions of the 1887 Treaty... had no other object but to fix the maritime frontier between China and Tonkin in the region of Monkai, attaching to China some territories and islands situated east of the mouth of the River Monkai and which were formerly under Annam. To simplify matters, the 105°43' Paris meridian was chosen as the demarcation line. However, the text of the agreement clearly shows that the clause at issue specifically refers to the Monkai region. To seek to apply it to the Paracels, which are situated almost 300 nautical miles south-east, would amount to saying that everything east of the 105°43' meridian belongs to China. China could therefore

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lay claim to most of the coastal islands of Indochina, Poulo Cecir among them! The absurd consequences of such an argument clearly show that only local scope and significance should be given to the clause in the 1887 Convention.8 Meanwhile, international law relating to the attribution of territories has evolved. It has become exacting and more technical. APPLICABLE LAW AFTER 1884 The late 19th century, a period of intense international relations, was also a period of many changes which gradually refrained international law. The rights of the various parties are evaluated on the basis of four concepts. These are: the fresh requirements of international law with regard to consolidating and maintaining title to territory (1884-1885); the concept of State succession with the need to identify the predecessor and successor State in each case, and its extensions in the form of the principles of the protection of territorial integrity and of the right of peoples to selfdetermination; the prohibition of the use of force and of the acquisition of territory by force; the notion of the critical date when weighing up international disputes, especially territorial disputes, and the need to identify the moment of crystallization, after which the acts of States can no longer be taken into account for the construction of a right, because such acts are carried out with the intention of belatedly displaying their authority. The rules governing rights to a territory in the late 19th century and thereafter Like any other treaty, the Berlin General Act of 1885 which divided up the African territories, was relative in character. It bound only the States parties and was valid only in respect of the territories under negotiation. Yet, because it was the expression of the new social requirement, its content rapidly became universal in scope. The acquisition of title (which could have taken place under the less stringent requirements of the previous era) then had to be consolidated under the new, stricter conditions. The right was maintained only if such conditions were complied with.

8

Note from Paris of 10 October 1937. On the same lines, see Note by Mr ChargueraudHartmann for the Under-Directorate for Asia of 16 August 1933.

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In order to examine whether or not this process of consolidated acquisition of sovereignty took place, we shall endeavour to identify the manifestations of sovereignty of the claimant State, and of its supposed rivals. The party which claims title must be able to prove that it exercised that title through regular acts of the State, covering the entire territory concerned inasmuch as physical conditions allowed, these acts corresponding to permanent, uninterrupted possession and peaceful administration. Where this is lacking, international tribunals consider that there is insufficient evidence of the government's intention to act as sovereign, since in that case: Those acts [are not] of such a character that they can be considered as involving a manifestation of State authority in respect of the islets.9 The machinery of consolidation is therefore very important. The method followed by the Court (particularly in the Minquiers and Ecrehos case) consists in acknowledging the territorial sovereignty of the State which is able to prove a long, well-established usage, reflecting a set of interests or relations attaching the territory to the State.10 Consolidation and maintenance of title over the centuries are linked to acquiescence on the part of other States." Such acquiescence may be active but it may also be passive. Consolidation may apply to territories where it is not possible to establish whether they used to belong to another State, it may be achieved not only through acquiescence per se but more easily through a sufficiently long period of absence of opposition on the part of States which might be interested in disputing possession.12 The silence of third parties is important in the case of an original occupation, when a State is the first to administer unclaimed territory, and continues to do so for many years without any challenge from third parties.

9 10

11

12

International Court of Justice, Minquiers and Ecrehos case, Reports 1953, at p. 71. Suzanne Bastid, Les problemes territoriaux dans la jurisprudence de la C.I.J. (1962) Recueil des Cours de l'Academie de Droil International. II, vol. 107, at p. 441. See Jean Barale, 'L'acquiescement dans la jurisprudence internationale' (1965) Annuaire Francais de Droit International, at pp. 389 et seq. Suzanne Bastid, op. cit., p. 441.

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It is even more important when third parties claim that the original title was invalid because the territory was not terra nullius, other rights having already been established. If it can provide evidence of a long period of continuous, peaceful, public administration, in which the previous occupying State showed no interest, the current occupying State is then in a position of acquisitive prescription. In such a case, the judges or arbitrators scrutinize most carefully the attitude of the States claiming to hold the true, original title. Their silence implies acquiescence; conversely protest preserves their rights. For 'a sovereignty which is challenged must react, on pain of forfeiture',13 there being no 'customary rule attributing to effective possession atone the capacity to shift the existing title to sovereignty'.14 Thus nonrecognition may impede the validation of a de facto situation.15 However, such non-recognition must be periodically renewed and must reflect a genuine will to oppose the actual situation. It therefore requires a certain degree of intensity. Such are the rules shaped by the greater demands of relations between societies and the increasing rarity of undiscovered territory, and also by the exacerbation of political rivalries between States. All we would need to do is verify their application to the situation of the archipelagos, were it not for the fact that the vicissitudes of history introduced other concepts whose legal content must be determined before we proceed. Notion of State or government succession and its consequences The issue of the international status of the archipelagos in the China Sea is greatly complicated on all sides by problems of State or government succession.16

13

14

15

16

Jean-Pierre Cot, Chronique de jurisprudence Internationale, Affaire du Temple de Preah Vihear (1962) Annuaire Francais de Droit International, at pp. 389 et seq. Marcelo G. Cohen, Possession contestee et souverainete territoriale, Publications de l'Institut Universitaire des Hautes Etudes Internationales (Geneva, PUF, 1997), p. 492. Gerard Cohen-Jonathan, Les iles Falkland (Malouines) (1972) Annuaire Francais de Droit International, at p. 240. For an outline of these difficulties, see the note by the Foreign Ministry's legal adviser dated 25 May 1950, Annex II. It must be noted that the legal analyses favouring the Chinese position rarely take account of the various State successions, inter alia Jian Zhou, op. cit.

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The case of Vietnam

On the Vietnamese side, 120 years were to elapse between the pre-colonial Empire of Annam and a sovereign, reunified Vietnam (the shelling of the port of Tourane in 1856 marked the start of the colonial conquest). In the initial, somewhat uncertain period (lasting approximately until the nomination of Paul Doumer as Governor General in 1897), the Empire of Annam retained a degree of international personality through the system of the protectorate. Under the first Treaty (15 March 1874), the Emperor simultaneously promised 'to align his foreign policy on that of France and to change nothing in his current diplomatic relations' (Article 3, paragraph 1) and retained the power to conclude treaties under certain conditions, albeit restrictive conditions under French control. On 6 June 1884 a second Treaty of Protectorate, known as the Patenotre Treaty, came into force, giving France more swingeing powers. 'France shall represent Annam in all its external relations' (Article 1, paragraph 2). The personality of Annam, a highly fictitious one, was nevertheless preserved. Its gradual incorporation into the Indochinese Union began with the decree of 17 October 1887. Its attachment to the Ministry of the Colonies was effective from 1894 onwards. Therefore a first instance of State succession did take place, this being understood as * the fact of the replacement of one State by another ... with respect to a given territory'" ... and a given time. The status of French colony left no room for an international legal personality, and the personality of France effectively replaced that of the Empire of Annam. The Patenotre Treaty had not been formally abolished, yet from 1885 onwards the situation was, de facto, a colonial one.1* The renaissance of the unified Vietnamese State was long and painful. Although colonial France spoke for Vietnam from the time of the protectorate until the Japanese overran the French troops in Indochina on 9 May 1945, between 1945 and 1975 many voices were raised on its behalf. A first declaration of independence was made by Emperor Bao Dai on 11 March 1945. However, on 19 August 1945 the Emperor abdicated in 17

18

Sir Humphrey Waldock (1968) Yearbook of the International Law Commission, vol. II, at p. 91. Quoted by Michel Virally in the preface to the work by Nguyen Huu Tru. See on this subject Nguyen Huu Tru, op. cit., pp. 44-50. The author bases his reasoning on some scholarly opinion and on judgments in French administrative jurisprudence which recognized the inclusion of Annam and Cambodia in a legal entity of French public law.

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favour of the Revolutionary Government of Ho Chi Minh. The Revolutionary Government, which controlled Tonkin and Annam,19 proclaimed both independence and the creation of the Democratic Republic of Vietnam on 2 September 1945.20 France found itself in a cleft stick: on the one hand, under the Agreement of 6 March 1946, it recognized 'the Republic of Vietnam as a free State having its own government, army and finances, and forming part of the Indochinese Federation and the French Union' (Article 1); on the other it was endeavouring to reassert its sovereignty over Indochina and more precisely to obtain the withdrawal of Chinese troops from Vietnamese territory. The issue of the international status of the Republic of Vietnam was the spark which ignited the armed colonial conflict. At the time France still considered itself to have sovereignty over Indochina, whereas Vietnam intended to make full use of its international personality. From late 1946 onwards, therefore, competing claims to exercise acts of sovereignty emerged. Under such conditions, which country validly represented Vietnam in international law between 1946 and 1949? Changing its strategy and banking on division, on 27 June 1947 France set up a Provisional Central Government of Vietnam in Saigon, recognizing its independence in the Along Bay Declaration of 5 June 1948. The Agreements of 8 March 1949 created an Associated State of Vietnam. Thenceforth, with the agreement of France (although not without further hesitation), the Associated State of Vietnam had an international personality.21 Through a process of tortuous legal manoeuvres, France adopted a position under which Cochin China was incorporated into this State, which was then considered to be the successor to the Empire of Annam, formerly a protectorate. This legal procedure counted for little. From 1949 to 1954, effective government was shared between: the French Expeditionary Force, which was still present along with political advisers; the Viet Minh Government, which controlled a large part of Tonkin and Annam and was internationally recognized by certain States from 1950 onwards; the Government of the Associated State, which controlled Cochin China alone.

19

20 21

But which had had neither the time nor the means to impose its authority on Cochin China. See Chronology, supra, p. 34. See Nguyen Huu Tru, op. cit., pp. 72 et seq.

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Which country, therefore, was entitled to carry out international acts in the archipelagos? What was the value of such acts for the governments of later periods? From 1954 onwards, under the Geneva Agreements, France recognized the full independence and sovereignty of the State of Vietnam. At the same time, the armistice agreements between the two high commands were concluded. The Vietnamese military command represented the Democratic Republic of Vietnam, its French partner represented France alone, not the State of Vietnam, which rejected the Agreements. So a further phase in the history of Vietnam commenced, one in which two States co-existed de facto, at war with each other, each claiming with different diplomatic support to represent the Vietnamese nation, and each having de facto only partial control over the territory and the population. How should the acts concerning the archipelagos carried out by either State during this period be evaluated? The case of China Thouh not as complex, China's case also presents some interesting difficulties in terms of State succession. The first arises from the fact that some of the instruments issued by China on the archipelagos (especially in 1921) were issued by a local government which was recognized neither by the Central Government of China nor by the European powers. How far could the Central Government subsequently rely on these acts? Moreover, is it possible to interpret the relations of power within China, particularly the rules for attributing international powers, on the basis of categories shaped by western political and legal culture? From 1949 onwards a second issue of State succession arose: should the People's Republic of China or Nationalist China succeed to the claims to the archipelagos formerly made by China? International law on State succession is somewhat vague, providing only ill-defined solutions. It gives no precise guidance on how to identify the successor and predecessor States (or Governments) when there are several contenders. That is an issue settled bilaterally through the procedure of recognition. Confronted with several contenders, each member State of the international community is free to recognize the State or government it chooses.

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The content of the rules of State succession This content is itself equivocal, since practice is so diversified.22 Nonetheless, contemporary international law has formulated and refined some recent principles which may be useful in seeking a solution to the dispute over the archipelagos. First, the status of territories has an objective character in international law. Status remains valid not only for the signatories to a treaty (when status derives from a treaty) or for the parties directly concerned, but for all parties. Second, there is the protection afforded to the right of self-determination of peoples under contemporary international law. It was written into the purposes of the Charter, in Article 1, paragraph 2, and has been echoed in many subsequent texts which have sought to flesh out all its consequences. Thus, resolution 1514 of 1960 entitled Declaration on the Granting of Independence to Colonial Countries and Peoples states: All armed action or repressive measures of all kinds directed against dependent peoples shall cease in order to enable them to exercise peacefully and freely their right to complete independence, and the integrity of their national territory shall be respected (paragraph 4) and also: Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations (paragraph 6). Similarly, resolution 2625 of 1970 entitled Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, having recalled the principle of the right of peoples to self-determination, states: The territory of a colony or other Non-Self-Goveming Territory has, under the Charter, a status separate and distinct from the territory of the State administering it; and such separate and distinct status under the Charter shall exist until the people of the colony or Non-Self-Governing Territory have exercised 22

There are two Vienna Conventions, one on the Succession of States in respect of Treaties (1978), the other on the Succession of States in respect of Matters other than Treaties (1983); neither has yet come into force, owing to an insufficient number of ratifications.

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their right of self-determination in accordance with the Charter, and particularly its purposes and principles and further: Every State shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other State or country. Taken together, these texts show how contemporary international law, the law of decolonization, has developed protective principles designed to prevent decolonized peoples, emerging from a long colonial period, from losing some of their territory, whether by accident or by design on the part of the colonial power. Thus any weakening of the effectiveness of the administration of a territory cannot lead to a situation of res derelicta, if it can be ascribed to the policy of the colonial power. Principle of the prohibition of the acquisition of territories by force Traditional international law had made conquest an attribute of sovereignty. Admittedly, not quite as baldly as this, since the distinction between just wars and... others had been introduced into the debate on sovereignty from the very outset. After the upheaval of World War I, the League of Nations Covenant prohibited wars of aggression, then, on 26 August 1928, the Briand-Kellogg Pact sought to outlaw war through the voluntary renunciation of the signatory States. With Article 2, paragraph 4, of the United Nations Charter, prohibition of the use of force assumed the value of a legal principle applying to all States. The principle formulated in 1945 was developed and reinforced in Resolution 26/25 (1970). 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 same text also stipulates that: Every State has the duty to refrain from the threat or use of force to violate the existing international boundaries of another State or as a means of solving international disputes, including territorial disputes and problems concerning frontiers of States.

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Hence, the politics of the cannon can no longer have any legal effects. The use of force cannot form the basis of law. Notion of the critical date and the moment of crystallization of the dispute International disputes over territories are often extremely protracted. The notion of the critical date is introduced into the discussion for the sake of clarifying it. And yet one should not expect more from this notion than it is able to provide. Neither scholarly opinion nor case-law has truly defined what should be understood by the critical date, or its actual effects. While many authors concur that it signifies the date after which the acts of States can no longer modify their respective laws,23 the idea of the crystallization of the dispute nevertheless introduces confusion. Crystallization would be the result of an impasse, the Parties having declined to negotiate, protest or endeavour to persuade one another. The notion of the critical date has been played down somewhat both by the case-law and by authors. in the Minquiers and Ecrehos case, the disagreement between France and the United Kingdom on the critical date spanned more than a century (for France it was 1839 and for the United Kingdom it was 1956). The Court accepts the idea of the crystallization of a dispute, the evidence subsequently established no longer having any effect. The critical date is fixed as the moment a formal claim is expressed. However, it does not decline to consider events subsequent to that date as the manifestation of a continued development and 'unless the measure in question was taken with a view to improving the legal position of the Party concerned'.24 In the Eastern Greenland case, the Court opted for a critical date of 10 July 1931, the day Norway occupied the disputed territory. Denmark, claiming already at that time to have a long-established title, had to prove the validity of the title on that date.25 Hence, the view expressed by A.G. Roche in 1959 is still valid and likely to remain so:26 In brief the Court left itself considerable discretion as far as future cases are concerned, since the rules applied are only 23 24 25

26

See Jean-Pierre Ferrier, op. cit., pp, 187 et seq. International Court of Justice, Reports, 1953, at p. 59. Case concerning the Legal Status of Eastern Greenland, Permanent Court of International Justice, 5 April 1933, Reports, Series A/B, at p. 45. A.G. Roche, The Minquiers and Ecrehos Case (Geneva, Thesis No. 115, 1959), p. 104.

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prima facie rules which may be displaced by the Parties and are anyway not well enough rooted in judicial procedure as to be virtually binding on the Court; it is therefore impossible to predict what exactly will be the attitude adopted by the Court in any future cases. In reality, from this angle, every dispute is unique, some developing very gradually, while others are periodically active and then dormant, as well as sometimes experiencing decisive accelerations. Some authors have ventured an opinion on the critical date in the dispute over the archipelagos in the South China Sea. Choon-ho Park sees the start of the dispute as going back to the 1880s, which in his view saw the beginning of a genuine dispute about control over the islands. And he invokes the 1887 frontier delimitation Treaty as the point when the conflict started to accelerate.27 It is hard to endorse this view. The Franco-Chinese Treaty of 1887 does not deal with the archipelagos and could therefore have no legal consequences for their status, even indirectly. If the 1880s are pivotal to this conflict, it is for another reason already explained. At that time, the Vietnamese title was real and effective. It was not challenged by China either on the ground or at the diplomatic level. These are the years when Vietnam changed hands following the reinforced Protectorate of 1884. The ignorance or negligence of the colonial power, if exploited by a rival State turning this situation to advantage, could not lead to the creation of rights in respect of that rival State. It is for this reason, not for the reasons given by Mr Choon-ho Park, that the 1880s were pivotal years in this dispute. Of particular relevance at this point is the reasoning of Judge Max Huber when he wrote: It is not necessary that the display of sovereignty should be established as having begun at a precise epoch; it suffices that it had existed at the critical period preceding the year 1898.28 As regards the contemporary conflict over the Paracels and Spratlys, in the absence of the expression of the Chinese claims in the 18th and 19th centuries, it is crucial to the argument that the exercise of Vietnamese sovereignty was not opposed for a very long period.

27

28

Choon-ho Park, 'The South China Sea Disputes' (1978) 5 Ocean Development and International Law, 1 at p. 33. Arbitral Award of 4 April 1928 between the United States of America and the Netherlands in the dispute concerning sovereignty over the Island of Palmas, 2 RIAA (1929) at p. 867.

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Kriangsak Kittichaisaree however distances himself considerably from the notion of the critical date, though he also acknowledges that the rival claims did not really emerge until after the 1880s.29 And Jean-Pierre Ferrier - noting that judges or arbitrators never defined the question of the critical date when this was put to them, nor offered any criterion - recognizes the importance of the year 1937 (which marked the effective French occupation, but also the proposal made by France for a judicial or arbitral settlement of the dispute over the archipelagos). However, he regards the date of 1954, the date of the end of the French presence in Vietnam, as the most likely one to symbolize the crystallization of the dispute.30 Without making too much of the notion of the critical date, it is important to remember that this question is linked to that of the legal nature of the dispute. Contrary to what is often asserted, the dispute does not concern the legitimacy of the acquisition of a territory by a State having embarked on the acquisition of a res nullius. Nor is it a matter of rivalry between two States making comparable claims, whose respective legal weight would have to be evaluated. More simply, there is a well-established title, the title of the rulers of Vietnam peacefully exercised for decades, which needs to be examined in order to establish whether it may have been lost in favour of the acquisitive prescription by another legal subject.31 We must utilize these various legal tools here in order to examine what has become of the rights asserted by the various Parties during first the colonial and then the post-colonial era. THE FATE OF THE ARCHIPELAGOS DURING THE COLONIAL PERIOD The fate of Vietnam's title, which had been solidly established during the 18th and 19th centuries, was to become linked to subsequent political events. The Vietnamese dynasty, weakened by conquest and by the speed with which France trans formed a protectorate into a virtual colony, voiced its claims to the islands in muted tones. However, it did voice them whenever it had an opportunity to do so. At the outset, France showed little interest in the archipelagos. It was not absent from them, but did not initially consider them to be an integral part of 29 30 31

Kriangsak Kittichaisaree, op. cit., p. 142. Jean-Pierre Ferrier, op. cit., pp. 189 el seq. See Sir Gerald Fitzmaurice, 'The Law and Procedure of the International Court of Justice' (1955) 6 British Yearbook of International Law at pp. 30 et seq.

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Vietnamese territory. It let matters drift, and when China's claims became insistent, it dithered, procrastinated and hesitated. In the closing years of the 19th century, and the early years of the 20th century, China was not in the least interested in these unprepossessing islands. It even disowned them. Then Japan entered the scene as a rising power. China was the first to realize the threat. Several years later, France made up its mind and voiced its claim in unequivocal terms. It exercised sovereignty. In the meantime, it had learned of the long history of the Vietnamese maritime companies operating in the archipelagos and was in a position to pose as successor. It did so selectively. Its knowledge of the historical facts was approximate. Lacking sufficient information, it thought in terms of State succession for the Paracels alone. For the Spratlys, it preferred to rely on the status of terra nullius, claiming original rights of acquisition. From 1909 onwards, protest and the absence of protest criss-crossed in an intricate pattern. Nothing remained that was peaceful or spontaneous. Everything was dictated by the ulterior motive of outflanking rivals and accumulating evidence. Salvoes of discovery rang out over the islands. In the Paracels, they were sometimes Chinese and sometimes French. Later, in the Spratlys, they were French, but also Filipino or Taiwanese. The colonial period was followed by the painful Japanese episode. The islands were a prize of war, coming under the control of the Japanese Navy. The departure of the Japanese corresponded to a period marked by the quest for independence, and another era was born. The actions of China, and those of France until it left the region, will be examined in turn infra. It will also be necessary to consider the attitude of the United Kingdom (which had shown interest in certain islets in the Spratlys), and naturally that of Japan as well. In the course of these twists and turns, there is no doubt that the title acquired by the Vietnam of old was weakened and challenged. Our examination will focus on its possible loss, or continued existence. World War II, however, constitutes too great a rift to be disregarded. The acts of the various States cited will therefore be examined both in the pre-war period then in the immediate post-war period.

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Chapter III From the French colonization of Indochina to World War II The policy of China

a) Lack of interest on China's part Between 1884 and 1909 there was no hint that China had any interest in these slivers of land. Quite the reverse. Only one incident is related by historians. It appears to bolster the thesis of Chinese acquiescence in the occupation of the islands by other countries. It was described by P.A. Lapique: Two of the many shipwrecks in the Paracels caused disputes which deserve mention, that of the German vessel Bellona on North Reef in 1895 and that of the Japanese vessel Imezi Maru in the Amphitrites in 1896. Both vessels were carrying a cargo of copper insured with British companies. It proved impossible to salvage the cargo and the wrecks were abandoned. Chinese sailors in sampans or small junks looted the wrecks and landed the copper at Hainan. The insurance companies then requested the intervention of the Minister of Great Britain in Peking and their Consul in Hoihow, who sought to hold the local mandarins responsible. The mandarins protested, stating that the Paracels did not belong to China, were not administratively attached to any district of Hainan, and they denied liability.32 This incident is also reported in a Note of 6 May 1921 from the Government General of Indochina (Directorate of Political and Indigenous Affairs). The text is more specific, reading as follows: The mandarins protested, claiming that the Paracels were abandoned islands which belonged to China no more than to Annam, that they were not administratively attached to any district of Hainan and that no special authority was responsible for policing them.33 Both versions clearly state that the authorities at local level firmly rejected any idea of Chinese sovereignty over the islands. This view is of considerable significance. They were local authorities and therefore in the best 32

P.A. Lapique, op. cit., p. 4.

33

See Annex 12.

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position to know the true situation. They stated that the islands had not been administratively incorporated, thus providing evidence of the absence of administration. Nevertheless, according to the Government General's Note, the mandarins also stated that the islands did not belong to Armam. It cannot therefore be inferred from these incidents that the Chinese authorities acquiesced in any way whatsoever in Vietnamese administration. On their part there was no more than ignorance of the fate of the archipelagos and lack of interest in them. The contention echoed by most Chinese documents that Germany became interested in the islands in 1883 and ceased all activity in the vicinity only at China's insistence is contradicted by the attitude of the mandarins related in the documents cited and is not based on verifiable references.34 b) Reversal of China's attitude The Chinese action described infra indicates a complete change of tack. It dates from 1909. Alerted by the fact that in 1907 the Japanese had laid their claim to the Pratas (another archipelago lying north-east of the Paracels), the Chinese wished to outflank any Japanese claim to the Paracels and initially contrived a reconnaissance mission to the islands.35 The Viceroy of the Two Kwangs sent three officers on an exploratory expedition (in April 1909). They brought back a descriptive report on the islands, which is evidence of the lack of knowledge then prevailing in China. It was a true journey of discovery for the Chinese. They noted traces of the passage of foreigners at various times in history. On reading the report, the Viceroy then planned a more systematic exploration. To this end, he borrowed the cruiser Yuen K'ai from his colleague the Viceroy of Min Chen and, as the Consul of France reported, 'Admiral Li was requested to provide the explorers with all possible assistance'. Hence a fresh Chinese expedition left Hong Kong on 21 May 1909; it returned to Canton on 9 June, somewhat disillusioned. Nonetheless, the expedition had raised the Chinese flag on the islands and had displayed China's sovereignty. The Cantonese authorities then planned to develop local trade in the Paracels. This account confirms that the Chinese had sketchy knowledge of the archipelagos at that time, since the first expedition was exploratory, and also the fact that they had not been convinced of their rights to the islands, since they asserted these rights by means of symbolic acts. 34 35

See Jian Zhou, op. cil., p. 268 and Nouvelles sinologiques. Note dated 4 May 1909 from the Consul of France in Canton. See Annex 13.

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The Chinese documents give a different version of the facts.36 They speak of a tour of inspection, as if the islands were well known. To justify raising the flag and firing a salvo (which are recognized facts), they state that this reasserted China's sovereignty, the reiteration implied in the prefix 're' evoking the idea that the same ceremony had taken place before, with no mention of where, when, or how. There is disagreement as to the duration of Admiral Li's voyage, which some authors claim lasted one month.37 P.A. Lapique, then living in Hong Kong, gave his own interpretation of the events of 1909 in the following words: As for the Paracels, I have some personal memories dating back 20 years or so. Late in 1908, being then resident in Hong Kong, I was approached by some Cantonese friends who were planning an expedition to the Paracels. The idea was to verify various assertions that the islands were covered in guano and that whole cargoes of pearl oysters were there for the picking around the reefs. Apparently what interested them more than my ability as a sailor to reach the islands was the fact that I was French. Although sorely tempted by this adventure, I was unable to take part, the Company which employed me having decided otherwise, sending me to the frontiers of Tibet at the time of the projected excursion to the Paracels. Nonetheless, I was aware of some of what transpired. An expedition to the Paracels did take place in May-June 1909, but was more in the nature of a private venture. It might not even have had any link with the original project. At that time the emotion aroused in China by the Japanese claims to the Pratas had not subsided. The officials doubtless sought to regain face by organizing an expedition to the Paracels, or by mounting a show of annexation. For whatever reason, an expedition did take place, and is worth mention. In late May 1909, two small Cantonese gunboats set sail, with two Germans from the Carlowitz Company on board, as well as Chinese sailors including an admiral. The latter was a 'river' admiral, so it would seem, for although the little fleet, advancing in the lee of the land, quite easily reached the port of Yu-Lin-Kan at the south end of Hainan, it tarried there at least a fortnight, doubtless waiting, before tackling the ocean, for the 36 37

Nouvelles Sinologiques, no. 8, at p. 17. Jian Zhou, op. cit., p. 277. In a similar vein, M.S. Samuels, op. cit., pp. 53-54.

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'Fong Sani' to be favourable and not afflict the bold navigators with seasickness. On 6 June (the nineteenth day of the moon) the expedition sighted one of the Paracel islands, and visited some of them. On 7 June, at 4 in the morning, both gunboats returned to Canton by the direct route, as the 'Kouo Che Pad" (the main newspaper of Canton) informed its readers in an article dated 20 June 1909. The author continued in ironic vein: It would seem that the French administration, were it even informed, was not overly concerned by this display. Yet it would have done well to study the expedition attentively, not least for the purpose of teaching our Navy's hydrographic service the techniques which allowed the Paracels to be explored and a general map produced within the space of 36 hours, together with a further 15 special maps of the same islands and 10 photographs, not to mention a study for two commercial ports and a bridge to link two of the islands!!! P.A. Lapique added that nothing further happened until 1920, save for the passage of cruisers belonging to the Indochinese customs service, which occasionally visited the various islands and archipelagos; nothing which corresponded to an administration of the islands. c) Confirmation of the Chinese intention to act as sovereign of the islands A further manifestation of the Chinese intention to attempt to recover the islands occurred in 1921. By an 'order' dated 30 March 1921, the civilian Governor of Kwangtung incorporated the Paracels into the sub-prefecture of Yai Hien (Hainan). This was done in the name of the military government controlling the south, which doubtless explains why the central Chinese Government, even today, does not rely upon it. The Legation of France in China became concerned, but did not lodge any official protest, to avoid 'stirring up Chinese nationalism '. It decided to ignore the order, since it was issued by a government which was recognized neither by the central Government of China nor by foreign States. However, this administrative incorporation was not totally devoid of practical consequences. Correspondence between Mr Beauvais, Consul of France in Canton, and the French Foreign Minister clearly revealed that France followed with interest the trading concession awarded by the Government of Kwangtung, in 1921, to a Chinese merchant named Ho Jui-Nien.

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The French Government kept a particularly close eye on the matter because some Chinese newspapers attacked the merchant, claiming that he was no more than a figurehead for Japanese interests, and demanding that the concession be revoked.38 Some Chinese authors state that China subsequently continued to award licences to mine or otherwise exploit the islands, even doing so via a national company.39 d) Renewed Chinese interest in the Paracels (1928) It was from 1928 onwards that Chinese interest in the Paracels again became active. A commission was set up, which inspected the Paracels and submitted documents. The documents were summarized in a report reasserting the Chinese claims to the islands and presenting ambitious projects to exploit them. However, probably as a result of the Chinese domestic situation, the projects came to naught, all the more so in that other interests showed their hand. In March 1932, the Chinese put the rights to mine guano in the Paracels up for public auction in Canton. This prompted a protest by France, which handed China a previously prepared Note in which the French Government asserted its rights and offered to take the matter to arbitration, should China not recognize these rights. China then based its claim on the fact that Vietnam had been its vassal before the colonial period. The situation on the eve of World War II was as follows: the Chinese acts of 1895-1896 (refusal to accept liability for shipwrecks in the Paracels on the grounds that the islands were not attached to China), and 1909 (exploration and salvoes fired to proclaim sovereignty) weakened all the other assertions that the Chinese occupation had lasted thousands of years, since time immemorial; they dated Chinese interest in the territories as being recent. The acts of 1909, plus a few concessions and an apparently symbolic administrative attachment, marked an interest which did indeed exist but these acts were not sufficient to constitute a long, effective, peaceful, continuous occupation. They were carried out by a government which had no place in the continuity of the Chinese State. Therefore China did not fulfil the conditions required to create a situation (comparable to the Island of Palmas case) in which it would have acquired, on the grounds of effective authority, rights which would allow China to supplant Vietnam. Over the entire period (1884-1939) the acts advanced by China concerned the Paracels alone. On the eve of the War the Chinese position was explicit. In a 38

39

See letter of 6 October 1921 from the official in charge of the French Consulate in Canton to the Foreign Ministry, Annex 14. Jian Zhou, op, cit., p. 280.

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Note dated 18 July 1938, the Embassy of China in Paris publicly asserted the Chinese rights to the Paracels. There was never any clear mention of the Spratlys. The attitude of France from taking possession of Indochina until World War II The French attitude needs to be analysed over two different periods of time. Until the late 1920s, France showed very little interest in the archipelagos. It was not aware of Annam's former rights and its concern was solely to prevent others from controlling the islands and thus constituting a threat to the gateway to its colony of Indochina. However, from the late 1920s onwards, an unequivocal French claim emerged, based for the Paracels on succession to the rights of Annam and for the Spratlys on the principle of discovery. This claim was made official by a solemn taking of possession and by a genuine administrative organization. a) The first period of colonization. The hesitations of France At the beginning of the colonial period in Indochina, France's actual conduct in the archipelagos bore little relation to an assertion of sovereignty (sporadic acts, deliberate but not taken to completion, revealing the intention to explore and survey rather than to possess). Moreover, diplomatic correspondence revealed on the part of various French authorities a genuine ignorance of the former rights of Annam, and a somewhat passive attitude towards China's claims. For a long time France's interest was very remote. It cannot be said that colonial France lacked interest in the archipelagos. However, it did not actually express the intention to act as sovereign. The Ministry of the Colonies and the Government General of Indochina envisaged sovereignty over the Paracels as early as 1898. A journalist, Mr Chabrier, had declared his intention of establishing in the Paracels stores to sell provisions to fishermen. On the advice of Mr Michon, then Minister in Peking, Mr Doumer replied (in June 1899) that Mr Chabrier's venture had no chance of success but that, with the aim of preventing another power from establishing a presence in the islands, it might be opportune to build a lighthouse in the archipelago in order to assert our sovereignty.

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This was not done, since the construction of a lighthouse appeared to be more useful for navigators at Cape Parella than in the Paracels. Moreover, the French Navy was regularly present in the archipelagos in the form of tours by cruisers belonging to the Indochinese customs service. This was related by P.A. Lapique,40 whose information confirms a certain French presence. According to this author, French naval cruisers used to visit the archipelagos at the request of the Consuls of France in Hainan, whenever the wives or children of the Annamese fishermen were captured by the Chinese 'to be sold'. They also intervened when information was received that arms, munitions or opium were being stored on the islands. Thus a French naval police service of a sort did operate. P.A. Lapique even described the seizure by a French ship of a Japanese vessel loading phosphates at Woody Island. However, the Japanese captain claimed to have the permission of the Commander of the Navy in Saigon, and the author concluded that the Japanese had behaved correctly towards the French authorities, and had not disregarded their rights to the Paracels. Lastly, in 1925 Mr Krempf, director of the Oceanographic Service of Indochina, surveyed the archipelago. The interest expressed in the form of these various activities was real. Yet was it specific enough to be categorized as the intention to act as sovereign? For some time, French intentions were shrouded in uncertainty. Over the same period, diplomatic correspondence up to the late 1920s (and other archive documents) reveals that France had not made up its mind in respect of the archipelagos, or more precisely the Paracels, the Spratlys being rarely mentioned. A Note of 4 May 1909 from the French Consulate in Canton (i.e. after the Chinese expedition to the Paracels) stated: Mr Beauvais contends that France would have as many rights to the islands as China and that it would be easy for us to find arguments to support our claims. However, should the game not be worth the candle, it would perhaps be preferable, in his view, to turn a blind eye to what is now happening, since an intervention on our part might lead to a fresh wave of nationalist

40

Op. cit., p.9.

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feeling in the population, more damaging to us than the possession of the Paracel Islands would be useful.41 This opinion was to persist until the late 1920s, expressed in slightly different terms by various authorities. Overall, France did not pose as successor to the rights of Annam, and did not know how solid such rights had been; France might well be a 'candidate' for sovereignty over the Paracels but not at the price of too sharp a deterioration in its relations with China. This was made very clear in a Note from the Foreign Ministry, cited supra. Recalling the opinion of Mr Beauvais, it stated: My Ministry agreed with Mr Beauvais and we allowed the Chinese to do as they pleased. Since a gap of 12 years had elapsed between Mr Beauvais' opinion and the Note in question, France showed a very marked lack of interest at the time. A minor commotion was created by an incident reported by P.A. Lapique, mentioned supra, and positions began to be contradictory. On 20 September 1920, a Japanese company wishing to mine phosphates on Woody Island applied to the Commander of the Navy in Saigon, asking whether the Paracels were a French possession. The application proves that, at that date, Japan was concerned about France's possible rights. In his reply, the Commander of the Navy in Saigon stated: There is no paper in the official documents of the Navy allowing the nationality of the Paracel Islands to be determined. Nevertheless, I believe that I can assure you that they are not a French possession, but this assertion is based solely on my personal memories and I cannot provide you with any conclusive document in support of this. As can be seen, the Commander of the Navy, aware that he had no authority to speak, acted with caution. The press having reported the absence of any claim on the part of France, the Ministry of the Colonies was alerted and requested further information from the Foreign Ministry. All correspondence exchanged on that occasion, dating from the 1920s, revealed France's hesitations. In that initial phase, it was unsure of its rights. When China announced that the Paracels had been administratively incor-

41

See Annex 13.

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porated into Hainan, Paris debated whether it was necessary to protest against the incorporation and to declare the islands a French possession. It can even be seen that some political authorities did not rule out negotiating the abandonment of all French rights in exchange for other French interests in China.42 However, negotiating the abandonment of its rights meant recognizing that it had rights. It would perhaps not be excessive, in exchange for official recognition that the Paracels are Chinese, to request a formal commitment from the sovereign Government never to set up a military or naval base there and to install no facilities to that end.4 3 in a letter to the Foreign Minister dated 25 October 1921, France's Charge d'Affaires in China referred to the difficulty there might be in negotiating with China at that time, in view of the absence of a 'Chinese Government'. Yet from 1922 onwards a degree of concern surfaced at the idea that complaisance towards China might eventually serve Japanese ends. All the above relates to the Paracels alone. As for the Spratlys, a letter dated 24 December 1927 from Governor General Pasquier to the Minister for the Colonies reported the interest shown by the Japanese in certain islands.44 The Governor added: It would seem that France has never voiced any claim to these islands, which belong more logically to the Indonesian archipelago than to the Indochinese peninsula.45 A Note of 8 March 1928 similarly states: The islands in question belong neither politically nor geographically to the coastline of Annam.46 A further Note of 26 November 1928, addressed to the Under-Dircctorate ;for Asia and Oceania, questioned whether the islands (the Spratlys) were indeed

42 43

44

45 46

See note of 6 May 1921 from the General Government of Indochina. Annex 12. Quoted as the view of the Governor General of Indochina in a letter of 18 April 1921 from the Minister for the Colonies. Annex 16. M.S. Samuels (op. cit.) contends that, for the Japanese, it might have been feasible to discuss with France the status of the Spratlys, but not that of the Paracels, which at the time Japan considered to be a matter between itself and China. See Annex 17. Annex 18.

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terra nullius and repeated that no decision had yet been taken as to French sovereignty over the Paracels.47 Various letters or notes exchanged in 1929 between the Resident in Annam and the Chief Resident in Tonkin show that the status of the Paracels remained obscure for these senior officials. However, they also show that France never officially recognized China's rights and hesitated to develop its own rights owing to the climate of nationalist feeling in China. What legal conclusions may be drawn from this period (from initial colonization until the late 1920s)? - France had not clearly asserted its sovereignty; nevertheless it had never officially recognized Chinese sovereignty. Rather, in the correspondence analysed, it gave the impression of waiting for a propitious moment to recall its rights and then to negotiate them. - Although it was not active in the archipelagos, it was not completely absent from them either. Such acts as it did carry out were unassertive and sporadic, and it may be asked whether they were actually a genuine factor in maintaining and consolidating effective occupation. - This hesitant, half-hearted attitude being the act of the colonial power, not the initial holder of title to sovereignty, did not entail any interruption of the rights previously acquired by a people which was dominated at the time, therefore reduced to silence. All the more so in that France took no steps legally to renounce its rights in favour of some other sovereignty. b) The second period of colonization (until World War II). The clear and official assertion of French sovereignty over both archipelagos Finding himself obliged to reply to the New Phosphates Company of Tonkin, which sought to work the Paracels, the Governor General of Indochina, writing to the Minister for the Colonies on 17 December 1928 and denouncing 'the ever-increasing megalomania of Chinese nationalism', clearly stated: 'It is therefore time for us to take the initiative and to assert rights which appear to be recognized both in historical documents and by geographical realities.' 48 Seeking to buttress the French position, the Governor General asked the Chief Resident in Annam for full information, which the Resident supplied in the letter dated 22 January 1929, cited supra.49 This document is extremely important. The Resident recalled the rights which Annam had 47 48 49

Annex 19. Annex 20. Annex 8.

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long asserted and maintained, then noted that Annam's coastal fishermen (at the time he wrote) no longer visited the islands. However, appearing to remember the status of protectorate initially granted and with it the possible and necessary expression of the views of the interested parties, he wrote as follows; Our proteges, therefore, appear not to have asserted their ownership of the Paracels for many years, although His Majesty Than-Trong-Hue, former Minister for War who died in 1925, did affirm in a letter of 3 March of that year that 'the islands still belong to Annam, there is no dispute on this score'. The Resident deplored the passive attitude of France faced with the Chinese claim of 1909. Thus, even through the colonial system derived from the protectorate, the few people who had occasion to speak on behalf of Vietnam did so in terms which revealed the continued intention to act as sovereign. The French Foreign Minister formally noted (in a letter of 26 February 1929) that there appeared to have been a reversal of the French position adopted in 1921, and requested further information.50 As is often the case, Paris knew less about the situation than some local authorities. Writing to the Foreign Minister on 18 February 1929, the Minister for the Navy (standing in for the Minister for the Colonies) still urged a waiting game. Even so, he referred to information which had reached him, stating: Annam however possesses historical rights over this group of uninhabited islands which are much less open to question than those which Nationalist China might claim.51 Of all the authorities involved, Pasquier (Governor General of Indochina) was the slowest to understand both Annam's ancient rights and the interest the Paracels represented for France. On 3 April 1929, he sent a telegram which advocated maintaining the attitude adopted in 1921,52 However, in November the same year, a French Senator, Mr de Monzie, wrote to the Minister for the Colonies: The rights of Annam, and therefore of France, to the Paracels seem to have been beyond dispute since the 17th century, and 50 51 52

Annex 21. Annex 22. Annex 23.

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the islands would be an excellent place to install a radio station to provide advance warning of typhoons. The Ministry of the Colonies then urged Pasquier to explain his reticence, Pasquier studied the whole case, and his correspondence in March 1930 reflected the shift in his views. He became convinced of the validity of Annam's rights. However, his fears concerning China still prompted him to advocate a waiting game.53 A Note from the Quai d'Orsay, signed Knobe! and dated 19 June 1930, finally asked the correct legal question. Had the sovereignty plainly acquired by Annam been lost since it had not been exercised? The author concluded that it was not so. He relied on the study by P.A. Lapique, stating that the Paracels had not been abandoned and therefore had not become res nullius. The Representative of France in China remarked that there had therefore been a return to the former view and noted the long absence of any protest by France against Chinese actions.54 Governor Pasquier's letter dated 18 October 1930 put an end to France's hesitations." Thenceforth, all French documents reflected the clarification of the situation. Annam had possessed rights since the 18th century. China had endeavoured to assert its rights only since 1909. Yet it could not be said that at that precise time Annam's rights had been extinguished. The French position was therefore to have the 'appearance of a simple exercise of preexisting sovereign rights '.56 A further telegram of 19 July 1931 from the French Foreign Ministry revealed further hesitation; France did not rule out being obliged to recognize Chinese sovereignty. Finally, on 4 February 1932, a Note was addressed to the Legation of China, asserting France's rights, but offering to take the matter to arbitration should China reject these rights. China's reply was dated 29 September 1932. It was confused, the confusion springing from the names used for the islands (the Chinese referred to another archipelago, 150 miles away). Moreover, the reply relied on the Sino-French Treaty of 1887; yet, as expounded supra, the Treaty is irrelevant in this case.

53 54 55 56

Telegram of 14 March 1930, Annex 24. Peking, 28 July 1930. Annex 25. See Annex 26. Official telegram of 4 July 1931. Annex 27.

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Towards the end of this period, France at last asserted its rights over the Paracels in unequivocal terms. Some authors maintain that it did so formally in March 1925.57 What is certain is that an initial decree (n° 156-SC), issued by the Governor General of Indochina on 15 June 1938, created a delegation (administrative unit) covering the Paracels, and incorporated them into the province of Thua Thien (Annam), and that a second decree of 5 May 1939 signed by Jules Brevie created two administrative delegations, one covering the Crescent group of islands, the other the Amphitrites. The officials heading the delegations were given the title of Delegates of the Resident of France in Thua Thien. They were supposed to reside on Pattle Island and Woody Island respectively.58 The inhospitable nature of the islets must be borne in mind. It explains the gap between the intention to act as sovereign and actual administrative occupation. The latter happened gradually. Not until 1938 was there was a permanent military presence. However, contrary to the contentions of some Chinese authors, there was no 'use of force' against the Chinese, since there was nothing that might be characterized as a Chinese occupation.59 All the correspondence analysed supra relates to the Paracels. France appears not to have adopted the same attitude for the two archipelagos. The Spratlys were a simpler matter. In March 1929, an application having been submitted to mine guano, Governor Pasquier saw no objection, adding however the rider: Permit issued at the risks and perils of the parties concerned should this group of islands be validly claimed by some other power.60 This reflected the doubt which persisted in the Governor's mind. The French Foreign Minister asked the Consul of France in Manila about any claims the Philippines might have. The Consul replied on 22 March 1929 that the Philippines had shown no interest. Nowhere in the case is there any trace of any Chinese claim whatsoever to the Spratlys throughout the colonial period. Japan, however, did express an interest in 1929 in the form of an inquiry made by its Consul General in Hanoi. This spurred the French colonial administration into action.61 57 58 59 60

See Jean-Pierre Ferrier, op. cit., p. 182. See Annex 28. Jian Zhou, op. cit., p. 306. Annex 29.

Subsequen t Development of the Title 111

A communique of 23 September 1930 notified third States that France had occupied the Spratlys. A formal ceremony of occupation was held in April 1933. It was announced in the Official Gazette of 26 July 1933. Six islets were mentioned in the text and precisely described. The only protest against this assertion of sovereignty was lodged by Japan, China remained silent. On 21 December the same year, the Governor General of Cochin China, Mr J. Krautheimer, signed a decree incorporating these islets into the province of Ba Ria.62 Does this mean that France had asserted its sovereignty only over the specifically mentioned parts of the archipelago, leaving the status of the remaining islands and islets open? Here we come to a point of legal theory defended notably by the arbitrator Max Huber in his Island of Palmas Award. He contended that when a group of islands forms a unit, the fate of the main part may determine that of the remainder. In view of the fact that, however scattered they may be, these fragments of land form a geographical unit, and that in the years concerned (1930-1933) there were no other acts of taking possession, the theory of the unity of legal status is applicable here - all the more so in that archive documents, notably a letter from the French Ministry of Defence to the French Foreign Ministry, indicate that it was indeed France's intention to extend its occupation to the entire archipelago.63 Thus, before World War II, the French authorities manifested their intention to act as sovereign over both archipelagos, taking effective possession of them, albeit after quite a long period of hesitation. For the Paracels, this took the form of an assertion of the continuity of the rights of Annam. For the Spratlys, sovereignty was manifested on the basis of a situation of terra nullius. Were rights established for States other than China or France? There are two cases that need to be examined, though they will not detain us for long. These are the cases of Japan and Great Britain. a) Japan There was no Japanese claim prior to the months leading up to World War II. There was even an explicit lack of interest referred to by the Acting 61

62 63

'La poussee nippone vers 1'Ouest, Occupation des Spratleys' (1939) Revue des troupes coloniales, at p. 463. Annex 30. Letter of 30 March 1932 from the Minister for Defence to the Foreign Minister. Annex 31.

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Governor-General of Indochina in a letter dated 25 December 1927 to the Minister for the Colonies. In this letter, he mentioned that the Consul General of Japan had told him that the Paracels were of no interest to the Japanese Government.64 Talks were held between Japan and France in Paris in August 1934, confirming Japan's renunciation of its claims.65 However, in the course of its rise to military power in the late 1930s, Japan made a move towards the islands. Under the pretext of mining guano, Formosan militia led by Japanese officers set up a camp on the islands. The Imperial Japanese Government annexed the islands by decree in 1937 and attached them to the administrative district of Formosa.66 However, this was more lust for power than legal argument. The Japanese army occupied the Spratlys in 1939 and the Paracels a little later. France protested, but World War II was then looming on the horizon. b) Great Britain When in 1930 France began to indicate its intention to assert its sovereignty over the Spratlys, the British Consul General in Saigon informed the Foreign Office, noting that certain islets had apparently been occupied by British subjects in 1877 with the consent of Her Majesty's Consul General in Borneo. Voluminous diplomatic correspondence was exchanged on the matter and legal experts were consulted. Yet Great Britain decided not to assert any rights, considering that the acts actually performed by the British subjects were too slender a basis to have constituted an 'inchoate title' and that, in any case, there had been no subsequent consolidation. This is why this case has been examined by authors under the heading: abandonment of territorial claims.67 What can be said on the date when this period ends (1939)? Everything turns upon two interrelated matters with a legal dimension: were the rights acquired by Annam before the protectorate abandoned under the French administration? Was their abandonment greater in the case of the Spratlys than in that of the Paracels? Did this abandonment lead to the creation of a title for another power such as China or Japan? On the first point, no abandonment can be discerned in legal terms. Indeed, in the last decade (before the War), there was even an affirmation or reaffirmation of France's rights. Yet the long period of French uncertainty or 64 65 66 67

Quoted by J. Leune in Mer et Colonies, August-September 1938. See Ministry of Foreign Affairs Note, 10 August 1940, Annex 32. Same correspondence. Geoffrey Marston, 'Abandonment of Territorial Claims; the cases of Bouvet and Spratly Islands' (1986) 2 British Yearbook of International Law, VII.

Subsequent Development of the Title 113

hesitation put the Vietnamese title on ice as it were and there must be a question mark over its vitality after thawing out. Apart from the diplomatic correspondence, the legal force of other elements of the case needs to be weighed up. An example is a report by Chief Engineer Gauthier dated 26 November 1937 at Haiphong, It gives an account of a civilian mission aimed at displaying France's interest in the Paracels. True, from start to finish, the text of the report reveals, on that date (1937), his ignorance of the ancient links between these islands and Vietnam and for him the archipelago is not under French jurisdiction... or Chinese jurisdiction either for that matter. This administrative report is not binding on the official authorities. By entrusting Gauthier with this mission, these authorities, in other words the Governor-General, clearly had the exercise of French sovereignty in mind. By the time of the Decree of 15 June 1938 administratively attaching the Paracels to Indochina, that exercise became completely official. The fact that the maps of Indochina printed by France throughout this whole period do not include the archipelagos must also be interpreted. All the available maps drawn up during this period, more particularly the aeronautical and climatic maps, those relating to typhoons, do not go as far as the Paracels or mention them without any indication of sovereignty. None of them provides the slightest pointer.68 It is easy to see why. French uncertainties were long-standing... they did not create a favourable climate for producing maps in support of an assertion of French sovereignty. Furthermore, at that time no-one even considered the cartographic argument, since by virtue of well-established case-law (arbitration in the Island of Palmas or Temple of Preah Vihear cases), international law held that, in disputes regarding sovereignty between States, maps have no official value. Hence, the title, which was nevertheless ultimately reclaimed by France, emerged from this period less strongly asserted. Yet it cannot possibly be said that it was destroyed, as two additional remarks support the conclusion that, in 1939, this title was still valid, held by the colonial power. That power did not perform the act of abandonment which, by creating a right for a third State, made abandonment irreversible. The colonial power was ignorant, prudent to excess, yet it remained keenly aware of its interests. When it finally regained independence, the Vietnamese people had no cause to adopt such reticence or ignorance, which could not be imputed to it. The decrees of the recent period are essential. 68

These are the maps indicated in the general bibliography at the end of this book.

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Confronted by the difficult, chaotic yet genuine maintenance of this title, China, the only true rival power, and only as regards the Paracels, was slow off the mark and unsuccessful. The exercise of the previous title, constructed patiently and at such length, was paralysed as a result of the colonial period and the administration of the islands was very sporadic. However, and despite this context, China's acts were neither sufficiently clear and continuous, or undisputed, to constitute a right. Hence, the continuity of the right of France and of the right of precolonial Annam is genuine where the Paracels are concerned, even though established late in the day. Where the Spratlys are concerned, France did not invoke the same link. It took possession of these islands as it would of a terra nullius. Did this amount to abandonment of the rights of Annam, that is, always assuming those rights were genuine? Respect for the right of peoples militates against this. And just as French hesitation over the Paracels could not destroy the ancient rights of Vietnam, so the attitude of France in regarding the Spratlys as res nullius before settling there could not completely efface the previous title if it was well established. However, the problems of the two archipelagos differed since the French rights over the Spratlys, while lacking the patina of age and considered to be rights asserted over terra nullius, were stronger by virtue of the fact that, during the colonial period, they were not challenged by the claims of another State, as in the case of the Paracels. For China did not make any specific claim to the Spratlys throughout this whole period. And the Japanese claim was a late one, circumstantial and lacking any legal basis. So much so that, when the time came, the moment of decolonization that is, the question of Vietnam's succession to the title acquired by France could be raised without the hindrance of rival claims and even without necessarily being joined to the more ancient title of the emperors of Annam, which had been in cold storage much longer. Yet for this archipelago it remained an open question. In 1933, France announced in unequivocal terms that it had taken possession of six islets. Did this also mean possession of the whole archipelago? The other claims in this period were weak, a belated show of interest by the Philippines and nothing else. Could it therefore be asserted that the subsidiary case follows the principal one? This is certainly the current Vietnamese view. This rule, which was still valid until the close of the 19th century, has been tightened in the 20th century. The occupation must be effective and must correspond to an overall administration. The nature of the locations concerned must

Subsequent Developmen t of the Title 115

therefore be investigated to find out whether it is indeed the principal islets which have been acquired, with the result that this acquisition would also include the other islands as well. An examination of the situation in more recent periods will show how far this approach goes. End of the colonial period (after World War II) The chronology of events69 and the discussion devoted to the question of the succession of States or of governments70 have highlighted the situation, a highly complex one in legal terms, which obtained in Vietnam in the immediate post-war years. However, as this situation was dominated by the presence of the French Expeditionary Force and a French administration (until 1954-1956), it is logical to lump these years together with the colonial history and to analyse them so as to include an examination of French positions. In this confused period, the two elements - material or intentional constituting the maintenance of the rights need to be identified. These elements involve Japan (though it would very soon be completely expelled from the region). Where Vietnam is concerned, they involve France, the Government of the Democratic Republic of Vietnam, and the Associated State of Vietnam. Where China is concerned, they involve the Government of Nationalist China and, after 1949, the Government of the People's Republic of China. There are also, as we shall see, certain elements from the Philippines. The material elements The disorder created by the end of World War II was reflected in the material situation in the archipelagos. Different troops succeeded one another there or shared the occupation of the archipelagos even though this was not always asserted as an intentional act of sovereignty. Sometimes, these are simply facts of war. The Japanese army was present until the capitulation of Tokyo and would not leave the two archipelagos until 1946. The Treaty of Chung-King of 28 February 1946 had given the Chinese troops responsibility for disarming the Japanese soldiers north of the 16th parallel. This Treaty authorized Chiang Kai-shek to occupy the Paracels, which he would appear to have done in November 1946. He also occupied the Spratlys, despite having no 69 70

Chapter I. Chapter III.

116 Chapter III

mandate to do so from the Allies, in December the same year.71 In support of this presence is the fact that, in 1947, the Ministry of the Interior of the then Chinese Government published an atlas in which China included the archipelagos. But contrary to the assertions of certain Chinese authors, this is not to say that China possessed 'historical' rights over the islands, as this inclusion was of late date and associated with particular circumstances. In May 1946, France landed a French infantry unit from the Savorgnan de Brazza on certain islands, but it remained there for only a few months. In late 1946, General Juin recommended the reoccupation of the Paracels in order to consolidate, as he put it, our position in the legal debat.72 In early January 1947, a French military mission arrived on Pattle Island.73 In March the same year China re-established a foothold on Woody Island and protested against the French military presence.74 The political situation worsened just as, at the diplomatic level, France and China decided to open talks.75 The French were still present on Pattle Island (2 officers, 10 Europeans and 17 natives).76 On 5 May 1949, the Chinese reiterated the administrative attachment of the Paracels to Hainan Island. In April 1950, Nationalist Chinese troops were evacuated from Woody Island only to be replaced by troops from the People's Republic of China. France once again indicated its desire to refer the case to the International Court of Justice. The presence of Communist Chinese troops in the Paracels in 1951 and in the following years has not been confirmed. In July 1949, the French Navy requested instructions and reported that one of the Spratly Islands (Itu Aba) was occupied both by a detachment from Communist China and by a detachment from Nationalist China. In October 1950, the French Government officially handed over control of the archipelagos, or rather, of the Paracels, there being no effective presence in the Spratlys, to the Bao Dai Government. Yet it was not until 1956 that the administration of South Vietnam, in the wake of the 71 72

73 74

75

76

See Pierre Bernard Lafont, op. cit., pp. 249 and 254. See this letter dated 7 October 1946 to the President of the Committee on Indochina. Annex 33. See report of 29 January 1947. Annex 34. Pierre Bernard Lafont suggests the date of 7 January 1947 (p. 249). The French Ministry of Foreign Affairs, March 1947. Telegram of 8 March 1947. Annex 35. See documents of 31 May and 3 June 1947. Annex 36. See telegram of 25 January 1951. Annex 37.

Subsequent Development of the Title 117

withdrawal of the French Expeditionary Force from Indochina, took over the French garrison on Pattle Island (Paracels). The same year, the People's Republic of China occupied the other part of the archipelago from which it never withdrew. Also the same year (1956), the South Vietnamese Navy occupied some of the Spratly Islands and set up a boundary-marker there indicating sovereignty. From this confused period, which is that of the first war of Indochina (1945-1954), and the ensuing months, scarcely any facts can be derived pointing to a sovereign administration of the archipelagos. However, what is recognized is: that a (partial) French, and subsequently South Vietnamese, presence was always maintained in the Paracels or rather on one island in that archipelago; that France was somewhat guarded with respect to the occupation of the Spratlys, while still retaining an interest in them even though they were occupied by the Vietnamese from 1956 onwards; that Nationalist then Communist China was present in part of the Paracels until 1950 then again from 1956 onwards; that the two Chinas were present much more fleetingly in the Spratlys; that the Philippines then displayed interest in the Spratlys or at least certain islets in that archipelago. However, in a period of political and military confusion such as the one under consideration here, intentions are decisive. They must therefore be scrupulously examined. The multi-faceted element of intention The claims of sovereignty, first made unilaterally, subsequently formed the subject of multilateral debate on the occasion of international declarations or agreements. a) France The diplomatic correspondence enlightens us as to French intentions in this period. The Government in Paris maintained its rights and reaffirmed them on every occasion. Even after the Agreements of 6 March 1946, it was considered that 'It is for France, on behalf of Annam, to assert its rights in the wider world.' 77 That included both the Paracets and the Spratlys. In a telegram of August 1946, the French High Commissioner in Saigon indicated to the naval attache that France controlled the Paracels and that every ship planning to 77

Note of 6 September 1946. Annex 38.

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put into port there must request authorization to do so from the High Commissioner. The Paracels were the subject of negotiations with (Nationalist) China from February to July 1947. These talks were unproductive but were an opportunity for France to reaffirm its rights and to propose that they be put to arbitration. Later on (from 1951 to 1955), the French Ministry of Foreign Affairs even sought to assert that the Spratlys could not be Vietnamese, that their attachment to Cochin China had been purely administrative and that these (French) islands were now to come under the French Department of Overseas Territories.78 This argument was reiterated in a Note from the Department for Asia-Oceania of 11 July 1955... It was not to resurface after that date even though France never explicitly abandoned the Spratlys. On 16 June 1955, General Jacquot, French Commissioner General in Indochina, referred to a secret letter of agreement of 15 March 1949 addressed to Emperor Bao Dai, in which the High Commissioner, commenting on the Agreements of 8 March 1949, apparently recognized Vietnam's sovereignty over the Paracels though remained silent on the Spratlys.79 The French position during this period was recognized and supported by other countries. An example was Great Britain which turned to France in 1948 with a request for permission to use Lincoln Island for military exercises, and a further example was the Australian Government which said it was prepared, on the occasion of the drafting of the peace treaty with Japan, to back up the claims of the French Union. b) China The intentions of the Chinese were also very clear as regards the Paracels. Any passage by a French vessel was challenged and protests were sent to the French Consul in Canton.80 In 1947, negotiations on the Paracels were held in Paris because holding them in Nanking was impossible owing to the intransigence of Chinese public opinion. In the negotiations, the Chinese took a very hard line and made the evacuation of Pattle Island by the French detachment a precondition of pursuing the talks.81 This was Nationalist China, which would appear to have pulled out in May 1950, though the People's Republic of China took over the Chinese claims on its own behalf 78 79 80

81

See letter from J. Letoumeau, 7 May 1951. Annex 39. See letter of 16 June 1955 from General Jacquot. Annex 40. Official letter dated 29 April 1949 from the Special Delegate of Wai Kiao Pou. Annex 41. See Note dated 15 May 1950 from the Directorate for Asia-Oceania. Annex 42.

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and asserted them in no uncertain terms, not only for the Paracels but the Spratlys as well. c) Vietnam During this period, the representatives of the Vietnamese people reaffirmed the sovereignty of Vietnam. The French authorities indicated this in a telegram dated 23 April 1949 to the Ministry of Foreign Affairs, in which it was stated that a lecture by Bao Dai's directeur de cabinet had provoked an incident on the subject of the Paracels. And Mr Pignon, author of the telegram, explained that he had been obliged to give an assurance that the High Commissioner 'considered the Paracels to be a crown dependency of Annam' and that he would support the Vietnamese in this dispute.82 This underscores the long-standing nature of Vietnamese intentions. d) The Philippines Lastly, the Philippines joined the fray in 1950 regarding part of the Spratlys at least, stating that they would not tolerate occupation of the islands by any hostile force. As we see, since the end of World War II, there has been an abundance of intentions to act as sovereign forming the highly complex fabric of this case. e) Multilateral declarations or agreements In the multilateral context, is there any room for a little objectivity in a case dominated by tension between the subjective opinions of States? Japanese desires with regard to the archipelagos, already expressed before the War and exemplified by the Japanese military occupation, were destroyed by the Japanese defeat and subsequent disarmament. Even before the end of the War, through the Cairo Declaration of 1943, published on 1 December 1945, the heads of government of the United States, China and the United Kingdom: Announced that they proposed to divest Japan of all the Pacific islands captured or occupied since the beginning of the First World War, to restore to the Chinese Republic all the territories, such as Manchuria, Formosa and the Pescadores, which the Japanese had stolen from the Chinese and to expel Japan from all the other territories it had seized by force.83 82 83

Telegram of 23 April 1949. Annex 43. Lazar Focsaneanu, 'Les traites de paix du Japon' (1960) Annuaire Francais de Droii International at pp. 256 et seq.

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The Spratlys and Paracels clearly form part of the other territories. The Cairo plan was to expel Japan from them. But unlike Manchuria, Formosa or the Pescadores, the archipelagos concerned here do not form part of the territories 'stolen' from China which the three Governments together proposed to restore to it. Now, China itself was party to the Declaration, Marshal Chiang Kai-shek having been present in person in Cairo, where the talks lasted several days. The omission of the archipelagos from this part of the 1943 Cairo Declaration is remarkable. It cannot have been fortuitous. There was neither reservation nor separate declaration by China regarding these territories. China's interest in these islands at that time was therefore not decisive. At all events, China had been obliged to remain silent on this point, unable as it was politically to assert its uncertain claims before the States assembled there, whose number included France, in other words, a partner which had never recognized China's rights over the islands and had even, on several occasions, proposed to China that the matter be referred to the International Court of Justice. Some years later, the peace treaty with Japan was to be drawn up. In 1951, the United States of America and the United Kingdom were the host powers at the San Francisco Conference. Fifty-five States were invited, including the Associated States of Vietnam, Laos and Cambodia. It was decided not to invite either of the Chinese Governments to attend.84 The Treaty was signed on 8 September 1951 between Japan and 48 Allied Powers. The repercussions of this for the archipelagos in the South China Sea were extremely important. Under Article 2 of the Treaty, Japan renounced all rights, titles and claims to a number of territories, the Spratlys and Paracels among them. However, following a French recommendation, the Treaty did not effect any devolution of these territories. The People's Republic of China protested, admittedly not from within the Conference since it had not been invited to attend, by a Declaration of 15 August 1951. The absence of attribution was to generate much comment and lead to various theories. According to D.P. O'Connell, four solutions were considered:85 a condominium over the abandoned territories of all the States at war with Japan; joint sovereignty to be acquired solely by the States parties to the peace 84

85

Owing to the disagreement between the United States and Great Britain, the former recognizing only Nationalist China and the latter having recognized the People's Republic of China. D.P. O'Connell, 'The Status of Formosa and the Chinese Recognition Problem' (1956) American Journal of International Law at pp. 405 el seq.

Subsequent Development of the Title 121

treaty (which excluded China, absent from San Francisco); return to the status of terra nutlius by derelictio (this was the position put forward by Maurice Faure in the French Assembly during the debate on ratification); appropriation by the occupants of these territories after Japan's departure. It should be noted that the latter solution would have led to the division of the Paracels between France and China and to the attribution of the Spratlys to France if anything. However, this solution lacked any legal basis. The title, and the rivalry in the maintenance of the title, were so clearly established prior to the Japanese occupation that, once that episode was over, the historical depth and acquired validity of the claims of each party could be carefully examined. And in that process of investigation, all elements count, including, and above all, the public declarations and silences or reservations which followed or accompanied these declarations. Hence, the conditions in which the cessation of hostilities with Japan was effected require detailed examination. At the request of Mr Gromyko (the USSR being present in San Francisco), an amendment was tabled at the plenary meeting of 5 September 1951. It 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. Yet this amendment was rejected on that occasion by 46 of the countries present. Only Poland and Czechoslovakia supported the USSR.86 The (Nationalist) Republic of China, concluding a peace treaty of its own with Japan on 28 April 1952, formally took note of Japan's renunciation of all rights to the islands, but did not have any claim of its own included in this (bilateral) treaty. While San Francisco was not a particularly favourable context for a successful outcome to the Chinese claim, bilateral negotiations were much more so. However, the text only mentions Japan's renunciation and does not put forward any proposals with respect to devolution. It is difficult therefore to agree with the authors who assert that this text implied recognition by Japan of Chinese sovereignty over these islands.87 In reality, a 86

87

Unaware of this fact, Pan Shiying writes: 'At the end of World War II, Japan returned the Nansha Islands, which it had occupied during the war, to the Chinese Government. No one in the international community challenged or protested against China's resuming its sovereignty and ownership of the Nansha Islands'. (Pan Shiying, 'The Petropolitics of the Nansha Islands - China's Indisputable Legal Case', p. 128). There are two errors here: Japan actually returned the islands, but without their being assigned to China. And the international community refused to accept the Chinese claim. Jian Zhou, op. cit., pp. 257-258 or Steven Kuan-Tsyh Yu, 'Who Owns the Paracels and Spratlys? An Evaluation of the Nature and Legal Basis of the Conflicting Territorial Claims' (1989-1990) 9 Chinese Yearbook at p. 12.

122 Chapter III

rigorous argument based on the general rules for the interpretation of treaties leads to the opposite conclusion that the text's silence on this point leaves the question of the future status of the archipelagos completely open. True, the People's Republic of China for its part, speaking through Mr Chou en-Lai, Minister for Foreign Affairs, stated on 15 August 1951, in connection with the draft peace treaty with Japan, that 'the Paracels and the Spratlys have always been Chinese territories'. However, the very terms of the (individual or collective) peace treaties with Japan, the declarations made in them or from which these treaties stem, signify that Nationalist China, which after 1949 took over the mantle of continuity from the former single Chinese Government, did not make any claim to the archipelagos on the occasion of the Cairo Declaration and bilaterally recognized Japan's renunciation without putting forward a claim of its own. These two elements, the latter having all the solemnity of treaty instruments and the former substantial political force, warrant the conclusion that at that time the Republic of China ceased asserting rights to the disputed islands. However, this does not settle the question of the claim reiterated loud and clear by the representatives of the People's Republic of China very soon after they had seized power. Did that claim have any basis since the surviving predecessor State (the Republic of China) had, through its silence, renounced its rights? Could it be argued that it had renounced them in favour of the People's Republic of China? This is not plausible in the context of relations between the two States, which is a context of breakdown. Consequently, Chou En-lai's claim, made on 15 August 1951, and rejected by the Conference on 5 September with the Soviet amendment, had no basis and the San Francisco Conference and surrounding events weakened the position of China which, as we have seen, had always been expressed as challenging Vietnam's previous positions and exercising the balance of power. How then is one to sum up the situation in 1954/56, when France quit Indochina? Leaving aside the claim to the Spratlys by the Philippines, a claim which barely surfaces, it will be seen that, over this long period (1884-1954/56), the Franco-Vietnamese positions on the one hand and the Chinese positions on the other fluctuated, though to varying degrees. France left behind the hesitations of the early colonial period, which hesitations may well have weakened its title. It actually administered the two archipelagos until the Japanese occupation. In the Paracels it did so in a clear

Subsequent Development of the Title 123

(though belated) affirmation of succession to the rights of Annam, and in the Spratlys as the occupant of a terra nullius. In the situation which France gradually found itself facing as the World War gave way to the War in Indochina, it maintained both its presence and its claim until, through its departure, it left (South) Vietnam to take over where France left off. However, in the commentary on the San Francisco Treaty (or certain Ministry of Foreign Affairs Notes), where the idea was mooted that France might wish to keep the archipelagos for itself, not for Vietnam, its tone was ambiguous.88 Throughout this whole period, the representatives of Vietnam were not able to speak as a State. However, when they spoke, whether in 1925 (the former Minister for War to the Emperor), in 1949 (Bao Dai's directeur de cabinet), or in 1951 (the representative of the Associated State of Vietnam in San Francisco), their position was always the same. The archipelagos had long been Vietnamese. And so they must remain. This desire, this intention, combined with the French presence (after the period of hesitation), provides support for the maintenance of the title in favour of Vietnam. Despite certain weaknesses, the Chinese case is not totally devoid of content. Before the War, while China may have made its opinion known sporadically, it nevertheless did so repeatedly (1909, 1921 and 1932). Since the War, Chinese interest in the Paracels has been persistent. Where these islands are concerned, China has shown great tenacity. The abandonment by Nationalist China (by omitting to put forward a claim in the peace treaty with Japan) might be considered as a position dictated by political circumstances, which would give further credence to the idea of the succession of one China to the other. For China never indicated any acquiescence in the Annamese or French claim. It did not do so through the mouthpiece of the local mandarins in 1896, for although making it clear that the islands were not Chinese, they added that neither did they belong to Annam either. Nor did China do so later, since in 1938, when France occupied the archipelagos, it was understood that the rights of the two parties would be reserved.89 It would therefore be difficult to find any trace of genuine Chinese acquiescence in the Franco-Vietnamese title, unless drawing on documents not yet published.

88 89

See M. Samuels, op. cit., p. 68. Legal Department Note, 6 September 1946. Annex 38.

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It is here that the notion of the critical date comes back into its own. The first possibility is to opt for the 1880s. A strong conception of the right of peoples to self-determination and of respect for the territorial integrity of peoples under colonial domination prompts a choice of 1884 as the critical date, as well as the assertion that nothing which happened later can be taken into consideration if it breached a long-established right acquired by the people. However, two other critical dates selected from the period under consideration can be suggested. The 1930s, and in particular 1937, when France first proposed to China to go to arbitration, may be considered as another point in the crystallization of the dispute. It has been seen above that, on these dates, France still possessed a title superior to that of China over both archipelagos (for different reasons). Lastly, the years 1954/56 (chosen as the critical date by Jean-Pierre Ferrier) were decisive by virtue of the reappearance of the Vietnamese people on the international stage (even though speaking through two States). Each of these three 'critical dates' opens up a perspective which appears favourable to the Vietnamese argument. However, it must be acknowledged that the post-war years confused matters a great deal, in that, although the Franco-Vietnamese title was not destroyed, the conditions in which it was exercised were problematic. It must also be acknowledged that the Chinese claim, although originally unfounded (i.e. in 1909) and greatly weakened by the San Francisco Conference, must be seen together with the duration of the Chinese presence in the islands, even if unlawfully established through the use of force and therefore unable to produce any legal effects. It now remains to consider the fate of the archipelagos during recent decades. THE POST-COLONIAL PERIOD In 1956 French troops left the region, and France no longer made any claim to the Paracels on its own behalf. It still claimed the Spratlys, without however maintaining an effective French presence. Of the two Chinas (for there are still two Chinese States), Taiwan has since been largely absent from the whole issue (not totally so in the case of the Spratlys). The history of Vietnam has been tumultuous and the four decades 19561995 cannot be analysed as a single period. They comprised two very different parts. The years 1956-1975 were those of the second Vietnam war. The country was split into two States as a result of the Geneva Agreements.

Subsequent Development of the Title 125

The attitude of both South and North must be examined, along with any contradictions between them. After 1975, the year of victory and of Vietnamese reunification, matters are more simple. The period of the division of Vietnam (1956-1975) Over these 19 years, the situation in Vietnam was once again one of war. The country was torn asunder, its two halves at war with each other. The superpowers were involved. China and the USSR supported the Republic in the north; the United States waged war and supported the 'Saigon administration', or the State of Vietnam. However, in the South there was also a Provisional Revolutionary Government, the PRG. Our analysis must first consider the actual situation in the territory of the archipelagos, then pinpoint the declarations indicative of intention. The material elements The Geneva Agreements of 1954 effectively divided Vietnam. The South, below the 17th parallel, included the archipelagos. It was recalled supra how the troops of the Government of Saigon took over from the departing French troops. They replaced the French troops in the part of the Paracels not occupied by the Chinese, so that between 1956 and 1974 the Crescent group of islands was occupied by South Vietnamese troops, and the Amphitrite group by those of the People's Republic of China. In January 1974, China seized the western Paracels following violent clashes, and from then on the whole of the Paracels was under its military control.90 In 1956 Saigon's troops also occupied the Spratlys, or at least some islands, where a boundary-marker denoting Vietnamese sovereignty was erected. However, in March 1956 a Filipino citizen, Tomas Cloma, claimed to have occupied the entire Spratlys archipelago (in a private capacity). A Filipino expedition landed 29 men on one island, which received the name 90

The Vietnamese documents contain reports that as early as 1959 China had attempted to land on the western part of the archipelago, with soldiers disguised as fishermen. However the landing was repelled by the South Vietnamese forces and 82 Chinese were captured (see The Hoang Sa and Truong Sa Archipelagos and International Law, Foreign Ministry of the Socialist Republic of Vietnam, April 1988).

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Freedomland.91 Since then the Philippines have gradually extended their occupation, occupying three islands in 1968 and subsequently a further three which were then fortified, Taiwan occupied Itu Aba Island on a date which varies depending on the author consulted.92 Thus, between 1956 and 1975, the Spratlys were occupied in part by three States. In order to evaluate the rights of each party, the facts must, however, be seen in the light of intentions. The elements of intention Several governments then expressed the intention to act as sovereign. The situation was different in each archipelago. a) The displays of intention of the People's Republic of China Since Chou en-Lai's speech of 1951,93 the People's Republic of China has steadfastly reiterated its intention to act as sovereign. The intention is strongly expressed in the case of the Paracels and is accompanied by a de facto occupation. The partial occupation of 1956 was extended to the whole of the archipelago in 1974. It is a military occupation, which is not recognized in international law if there is a previous titleholder. China, however, does not accept this argument and reiterates its intention, claiming to have retaken islands which have belonged to it since time immemorial. China also claims that in March 1959 the administrative prefecture of Hainan set up an office on one of the islands in the Paracels to deal with matters in the Xisha-Nansha-Zhongsha Islands, ‘which in March 1969 was reportedly renamed the Revolutionary Committee of the Xisha-ZhongshaNansha of Kwangtung Province'.94 This is clearly the mark of an effective administration, albeit one constructed on the basis of an occupation carried out under illegal conditions, which prevents the administration having legal effects. 91

92

93 94

See Charles Rousseau (1972) Revue Generate de Droit International Public, Paris, at p. 830. Charles Rousseau mentions 1971, but as the date of the Filipino protest against the occupation by Nationalist China. J.R.V. Prescott gives the date as 1956. It would appear that 1971 was rather the date of a military reinforcement of the Taiwanese presence, Taiwan having been present since 1956. Seep. 122. (1988) Novelles sinologiques, at p. 22.

Subsequent Development of the Title 127

In the case of the Spratlys, the Chinese also make their intention plain. However, China cannot base its claim on any true occupation or administration. The extension to the Nansha Islands of the administrative office set up in 1959 was the result of a fiction. The description of the islands by people who have visited them leaves no room for doubt on this subject. Nationalist China, on the other hand, maintains its claims on the basis of an actual presence. b) Vietnam's manifestations of intention During the war years, a divided Vietnam voiced its claims in a manner which may appear contradictory. The Government of South Vietnam never abandoned its unequivocal intention of maintaining its sovereign rights to the two archipelagos. Various decrees were issued concerning the administration of the islands and their incorporation into Vietnam's territorial organization. A decree concerning the Paracels was issued on 13 July 1961 (creation of the administrative unit of Dinh Hai), and a further decree of 21 October 1969 merged Dinh Hai and Hoa Long. The Spratlys were incorporated into Phuoc Tuy Province on 22 October 1956. Under a decree of 6 September 1973, issued by the Ministry of the Interior of South Vietnam, they were incorporated into the municipality of Phuoc Hai, in the district of Dat Do, Phuoc Tuy Province. Meanwhile the Saigon administration lodged protests against China's conduct on several occasions. The Journal d'Extreme-Orient of 4 June 1956 reported that the Vietnamese Secretary of State for Foreign Affairs had lodged a protest against a declaration concerning the islands made by the spokesman of the Chinese Foreign Minister on 29 May of the same year. A further protest was lodged on 20 April 1971, this time with Malaysia, and on this occasion Vietnamese sovereignty over the two archipelagos was reasserted by South Vietnam's Foreign Ministry. Lastly, in January 1974, following the taking of the Paracels by Chinese forces, the Government of the Republic of Vietnam protested to the United Nations, published a policy document on the archipelagos and forcefully condemned the unlawful acts of the People's Republic of China. The Saigon administration took advantage of the second session of the Third United Nations Conference on the Law of the Sea, held in Caracas in June 1974, to reiterate its rights to both archipelagos. We could draw the line here and say that there is sufficient detail to prove that the intention to act as sovereign is maintained on the part of Vietnam. The territorial partition at the 17th parallel placed both archipelagos in South Vietnam's zone. It was therefore for the Saigon administration, the Saigon

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administration alone, to voice its claims to the islands. It did so. Moreover, it did so as the successor to the former rights of France over the two archipelagos, France having itself assumed the succession, at least in the case of the Paracels, to the rights enjoyed by precolonial Vietnam. However, the attitude adopted by the other Vietnamese Governments deserves close scrutiny, since China uses that attitude as an argument. The Provisional Revolutionary Government of the Republic of South Vietnam (PRG) adopted a position in 1974 which recognized the existence of a dispute, recalling that Sovereignty and territorial integrity are sacred issues for all peoples' and calling for negotiation.95 Thus both the Governments which claimed to represent South Vietnam (and which therefore had territorial responsibility for the administration of the archipelagos) had a common attitude on this point. The Western press presented matters differently, since an article in Le Monde dated 27-28 January 1974 stated: In Paris, the delegate of the PRG to the conference held at La Celle St-Cloud dismissed Saigon's proposal for the adoption of a joint resolution condemning 'the violent occupation of the Paracels by China', since, according to him, this type of dispute must be settled by negotiation. In fact the disagreement concerned the method rather than the substance of the dispute, the Provisional Revolutionary Government finding it difficult to condemn China, which had hitherto been its political ally in the Vietnam War. There remains the Government of the Democratic Republic of Vietnam. China claims that this Government renounced sovereignty, advancing three facts in support of this.96 On 15 June 1956, the Deputy Minister for Foreign Affairs of the Democratic Republic of Vietnam, receiving the acting Charge d'Affaires of the Chinese Embassy in Vietnam, reportedly asserted: According to the documents available to Vietnam, the Xisha Islands and the Nansha Islands, on the basis of the historical evidence, form part of Chinese territory.

95

96

The protest was mentioned in an article published in Nhan Dan on 26 February 1988, and was summarized in the feature 'The Hoang Sa and Truong Sa archipelagos (Paracels and Spratlys)' (1984) Le Courrier du Vietnam, Hanoi, at p. 139. For example in a brochure entitled: 'Documents and Other Materials concerning the Recognition by the Vietnamese Government that the Xisha and Nansha Islands are Chinese Territory'.

Subsequent Development of the Title 129

Has this comment been confirmed? Was it purely verbal or was there a written record of it? As these questions remain unanswered, this statement cannot be seen as a legally valid pronouncement. China also relies on a declaration by the Government of the Democratic Republic of Vietnam dated 9 May 1965 and relating to the combat zone of the American armed forces. North Vietnam is said to have denounced the fact that this zone included: A portion of Chinese territorial waters contiguous to the Xisha Islands which belong to the People's Republic of China.97 Lastly, the declaration referred to a statement of 14 September 1958 by Pham Van Dong, Prime Minister in the Government of the Democratic Republic of Vietnam. Previously, on 4 September, China had publicized the fact that it was extending the breadth of its territorial sea to 12 nautical miles. It was indicated that this involved mainland China and all the islands belonging to China, the Paracels and Spratlys among them, were specifically included. The Note by Pham Van Dong states: We would solemnly inform you that the Government of the Democratic Republic of Vietnam recognizes and approves the declaration made on 4 September 1958 by the Government of the People's Republic of China regarding the decision taken with respect to China's territorial sea. The Government of the Democratic Republic of Vietnam respects that decision and will instruct its responsible national bodies that, in the event of contact at sea with the People's Republic of China, the stipulation regarding the breadth of the Chinese territorial sea as being 12 nautical miles will be scrupulously respected. Articles published by the daily Nhan Dan in 1969 and 1970, referring to Chinese airspace 'above the Paracels' aggravated the situation. To assess these events, two facts need to be taken into account: the precise significance of the North Vietnamese attitude and North Vietnam's place among the partners concerned. It is true that Phan Van Dong's declaration confines itself strictly to recognition of the breadth of the Chinese territorial sea. So it is incorrect to assert that Vietnam had also 'reaffirmed its recognition of China's claim' to 97

(1988) 8 Nouvelles sinologiques at p. 30.

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the archipelagos.98 Nevertheless, its silence on the affirmation of Chinese sovereignty over the islands can be interpreted as acquiescence, all the more so as it is backed up by the declaration relating to the combat zones and the articles in Nhan Dan. Admittedly, these facts were situated in the very special political and military context of the events then unfolding. For reasons due to circumstances, the Government of the Democratic Republic of Vietnam exercised its power only north of the 17th parallel. This partition left the administration of the archipelagos under the control of the South Vietnamese Government. As we have seen, that Government had always been attentive to the question of Vietnamese sovereignty over the archipelagos and was to continue to be so until it ceased to exist in 1975. The political allies of the Hanoi Government in South Vietnam were represented by the Provisional Revolutionary Government of the Republic of South Vietnam. Nothing they did suggests that they went back on their desire not to interrupt the thread of Vietnamese sovereignty over the islands. In this context, any declarations, statements or pronouncements by the North Vietnamese authorities had no bearing on the title of sovereignty. This was not the government with territorial jurisdiction over the archipelagos. One cannot abandon something one has no authority over. Furthermore, this was a government entirely in the hands of its allies, engaged as it was in an all-out struggle against American might. The fact that, for the common military cause, one party or another made use of neighbouring territories, friendly territories or territories which were quite simply unable to put up any opposition, is an example of the sort of provisional territorial arrangements found in other war situations. International law cannot draw any conclusions from this as regards continuity of the legal title. The fact nevertheless remains that this particular moment in the history of the partition of Vietnam blurs the Vietnamese position. The now reunified Vietnam (through the victory of the North) must decide to which entity it is successor on this point. The territorial logic reinforces succession to the rights and actions of South Vietnam, which alone has jurisdiction from the geographical standpoint. c) The other manifestations of intention There are few traces of the intentions of the Government of Taiwan.

98

Bradford L. Thomas, "The Spratly Islands Imbroglio: A Tangled Web of Conflict', in International Boundaries and Boundary Conflict Resolution, 1989, p. 415.

Subsequent Development of the Title 131

In 1956 however, the Taiwanese Government, faced with the claims of the Philippines to the Spratlys, sought to invoke its rights.99 And the strengthening of the fortifications on Itu Aba was accompanied in 1971 by talks with the Government of the Philippines in which each party reasserted its claims. The position of the Philippines fluctuated somewhat as regards its intentions. The first manifestation of sovereignty by this State (over the Spratlys) was in 1951. Yet 20 years later, the Government of the Philippines not only occupied several islands while stating that it had no territorial claim to this archipelago, but at the same time was in talks on this subject with Nationalist China. So in 1975 the situation was as follows: In the Paracels, 100-per-cent occupation by China, strongly maintained claims by South Vietnam and an attitude of the Democratic Republic of Vietnam obscured by the events of the war. In the Spratlys, a persistent and very clear Vietnamese claim by the Saigon Government in continuity with the French taking of possession, and also the many fiimsily argued claims of the two Chinas and the Philippines. All these States, with the exception of the People's Republic of China, occupy some small islands. France has remained silent since 1956, though it has never formally abandoned its rights over the Spratlys. The return to a reunified Vietnam after the 1975 victory The years after 1975 were to bring few changes to the Paracels. The islands have been under military occupation by the People's Republic of China, the eastern part since 1956 and the western part since 1974. The infrastructures in the Paracels have been substantially developed by the Chinese People's Army. In the Spratlys, after April 1975, Vietnamese forces took over from the detachments of the previous Saigon administration on the islands it had occupied. In 1977, the Philippines stepped up their military presence on seven of the islands in the archipelago.100 Malaysia occupied certain atolls in September 1983. Lastly, in March 1988, China dispatched troops to certain cays in the Spratlys, a naval incident led to the loss of Vietnamese vessels and the deaths of a large number of Vietnamese sailors. Since that date, the 99 100

See Charles Rousseau, op. cit., pp. 830 el seq. Le Monde, 12 May 1978.

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Chinese Navy has maintained its presence in the archipelago. Taiwan maintains a garrison on the largest of the Spratlys, Itu Aba. The claims, however, have become more widespread. China maintains its claims to both archipelagos and seizes every opportunity to recall its historical rights and to reaffirm its sovereignty. Its attitude is not merely to claim the protruding lands as such, but also to stake its continued claim to the whole of the South China Sea in the name of historical rights. The basis of these rights is not indicated, and this despite China's accession to the Convention on the Law of the Sea.101 China's oil policy clearly shows this, consisting as it does in granting concessions to American oil companies for maritime areas situated in zones which, under the terms of the Convention, Vietnam is entitled to claim for its own exclusive use.102 The Philippines have developed their claims to part of the Spratlys. Taiwan persists in its claims. Late on the scene, Malaysia claims to have a few rights. Vietnam is extremely vigilant in pursuing its assertion of sovereignty over the two archipelagos in their entirety. This claim is part and parcel of the context of the continuity of the rights of the ancient Empire of Annam, then of France on behalf of Vietnam under colonial rule, France having effectively occupied the two archipelagos. The use of force by China to occupy the Paracels in 1956, but above all in 1974, then certain islets in the Spratlys in 1988, meant that Vietnam lost the factual element of its claim. The Vietnamese Government seems to be at great pains not to allow this to become abandonment through the absence of signs of intent. It is therefore anxious to multiply such signs and wastes no opportunity to recall its rights. This it has done in various ways, through acts, communiques or declarations. Some of these were administrative instruments attaching islands to certain provinces: the decree of 13 July 1961 by Ngo Dinh Diem, President of the Republic of Vietnam; the decree of 6 September 1973 by the Ministry of the Interior of the Republic of Vietnam; the decision of 9 December 1982 by the Council of Ministers of the Socialist Republic of Vietnam. Others included acts relating to the maritime territory, the publication of official reports or other heavily documented works, political declarations on the occasion of international meetings, protests against acts of the People's Republic of China, Nationalist China or any other State concerning the archipelagos, such as those of 30 December 1978, 7 August 1979, 5 February 1980, and 11 August 1980 or declarations in the framework of certain international organizations, in particular at the Conference of the 101

102

See Frederic Lasserre, Le Dragon et la mer. Strategies geopolitiques chinoises en Mer de Chine du Sud (Montreal, Harmattan Inc., 1996), pp. 181 et seq. See 'Drawn to Fray' (1997) Far Eastern Economic Review (3 April).

Subsequent Development of the Title 133

World Meteorological Organization in 1975 at Colombo and at the 7th session of the Meteorological Conference of Region II (Asia) at Geneva in June 1980. During this period, the dispute, which undoubtedly crystallized earlier, leads each party steadfastly to act in such a way as to maintain and improve its position. Hence, as things stand, two States are rivals for the Paracels and, France aside, five are rivals for the Spratlys.

Chapter IV Conclusions and Bases for a Settlement of the Dispute

Almost three centuries of history have set their stamp on the legal status of these archipelagos. The bulk of the works hitherto published on this subject have made use of verifiable data from the most recent past, the period after World War II. Older historical data have generally been mentioned simply by reviewing documents drawn up by the States concerned or published by their national research centres. In this respect, there is a considerable imbalance in favour of the Chinese argument, which is the best publicized. In this book, an effort has been made to take stock of the arguments expounded by the various States concerned and also to verify the historical arguments of the past using documentation in the French National School of Far Eastern Studies and French archives from the colonial period. This redressing of the balance as regards the sources consulted shows the case in a different light. We will now see what the result of this is by posing the following two questions: What picture can be given of the rights of each of the parties concerned? What prospects does contemporary international law offer for settling a dispute of such complexity? SUBSTANCE OF RIGHTS TO THE ARCHIPELAGOS The facts illuminated through the various historical phases considered above confirm that the cases of the Paracels and the Spratlys must be dealt with separately. The case of the Paracels As regards the Paracels, only two States are concerned: Vietnam and China. The rights of Vietnam are ancient and well founded even if China's claims assumed more concrete form through its occupation by force of part of the archipelago 39 years ago and of the rest 21 years ago.

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The detailed examination of the historical titles attempted in the preceding pages, based on the most reliable documents, shows that the Vietnamese title has been clearly asserted since the beginning of the 18th century. The arguments put forward so far by China do not make it possible to confirm the existence of ancient legal ties between Imperial China and these territories such that they could be interpreted nowadays as ties of sovereignty. Vietnam's vassalage with respect to China, terminated with China's consent on the advent of France, could on no account leave China with any rights to the islands. While the Vietnamese title may have been weakened by the indifference of the colonial power during the early decades of colonization, it does not amount to effective abandonment since, from a certain point, France effectively administered the Paracels and clearly asserted its rights. China's interest in these uninhabited lands only amounts to a claim of sovereignty after 1909. This claim was asserted in the face of a Vietnamese title established two centuries earlier. During the first half of the 20th century, there were in all only three occasions when China expressed a desire to exercise its rights over the Paracels (1909, 1921, 1932), and even these were only made possible by lack of effective opposition from the colonial power. The thrust of the whole corpus of the law of decolonization built up under the aegis of the United Nations has been to protect peoples, particularly when they have fallen under the hegemony of another power, from actions which might breach their inalienable rights. The period of World War II and the following years created circumstances propitious to a (military) change of hands in the uninhabited islands on a number of occasions. The French authorities, and simultaneously with them, the representatives of Vietnam, and, after the departure of the French, the representatives of Vietnam alone, occupied the islands as far as political circumstances permitted them to do and never ceased to assert their rights. The only hesitations on this score were after the second Vietnamese war, in certain statements by the representatives of the Democratic Republic of Vietnam. Although these can be explained by the circumstances and by the extreme dependence of that Government on China, they were not such as to affect the conclusion that Vietnam has a title superior to China's. By its silence in the Cairo Declaration or in its bilateral peace treaty with Japan, Nationalist China abandoned the assertion of its rights. The claim of the People's Republic of China which emerged in 1951 has the appearance neither of the assertion of a title taken over from an earlier period nor of a

Conclusions and Bases for a Settlement 137

right derived from effective administration. In its favour, however, there remains an occupation by force in 1956 and another in 1974. Yet there are two obstacles to the transformation of this occupation into a title. The first lies in the contemporary peremptory norm of the prohibition of the use of force against the territorial integrity of a State. The second resides in Vietnam's reiterated declarations of protest against this unlawful occupation with a view to preserving its ancient rights, since: Possession of a territory does not cease solely by virtue of the disappearance of its material manifestation, which must be accompanied by the intention to abandon it.1 The case of the Spratlys The situation of the Spratlys is quite different from that of the Paracels. Irrefutable proof of the two archipelagos being treated as one in the administration of the emperors of Annam is hard to find, even if there are traces of the subdivision of the maritime companies on the basis of different geographical areas. Whatever the pre-colonial situation may have been, the French attitude has not been the same for the two archipelagos. Liberated by the absence of any Chinese claim to the islands further away, France, during the colonial period, was less hesitant about manifesting its presence than in the Paracels. It asserted its rights as first occupant and not as the successor of Annam. But it was not challenged by anyone (not even by Great Britain, which abandoned all claim), so that French rights were very soundly established. The claim of the Philippines was not voiced until the 1970s. Taiwan's claim is highly opportunistic, linked as it is to Taiwan's relief of the islands from Japanese troops after the War (although Taiwan was not authorized to take such action). Malaysia's claim is of more recent date. The People's Republic of China began to speak of a claim to the Spratlys in 1951. But this was an abstract claim, devoid of any trace of effective occupation of these islands remote from Chinese territory. Not until very recently (1988) were there the beginnings of partial occupation, as the result of military action. Hence it can be said of the Chinese attitude between 1951 and 1988 that 'the mere fact of challenging territorial sovereignty does not create a title for

1

Paul Fauchille, 'Le conflit de limites entre le Bresil et la Grande-Bretagne' (1904) Revue generate de droit international public at p. 138.

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the State adopting this attitude'.2 As for the armed occupation, one can but call to mind the strong prohibition of the occupation of territories by force in contemporary international law. However, where the Spratlys are concerned, the problem nevertheless remains of the immense area of this archipelago (160,000 square kilometres), of its relative unity and of the effective extent of the occupation by the various States claiming title. Two hypotheses need to be considered regarding Vietnam's contemporary claim. If the evidence of the administration of the islands by the emperors of Annam is adequate, Vietnam does have a title to the Spratlys which has the same validity as its title to the Paracels. For in that case, it was through ignorance of Vietnamese history that France claimed to occupy this archipelago as terra nullius. And the succession of the rights must be restored. On the other hand, if Vietnam's ancient rights to the Spratlys are challenged, the French argument that it 'discovered' the archipelago raises a different set of problems. Whatever its origin, the French title was accompanied by concrete occupation which ceased only to be succeeded by the Vietnamese occupation in 1956. True, Taiwan and the Philippines then also established a foothold in the archipelago. France's position has never been totally clarified. The French argument being that of sovereignty as first occupant, that sovereignty can only be terminated if expressly abandoned. Despite their confusion, can the debates, particularly in the Assembly of the French Union in 1952, be regarded as heralding a desire to abandon the islands? And is that desire confirmed by France's diplomatic silence on this matter? Or, on the contrary, must it be accepted that the case regarding the Spratlys will not be definitively settled unless France once again makes its views known? Supposing France were definitively removed from this case, cannot Vietnam be regarded as successor to the rights established by France,3 on the basis both of the Vietnamese occupation hard on the heels of the independence of South Vietnam and also of the fact that France had administratively attached the islands to Cochin China? And that therefore the islands could but share the fate of the territory to which they were attached? However, if the Franco-Vietnamese title, on the basis of one argument or another, proves the most ancient and soundly based, does it apply to all the lands? Is there room for other partial occupations which took place at a later date, but which might nevertheless have engendered rights - for instance on 2 3

Suzanne Bastid, op. cit., p. 451. The decree of 21 December 1933 attached the islets to one of the provinces of Cochin China: Ba Ria.

Conclusions and Bases for a Settlement 139

the periphery of this vast set of islands, where these shards of land lie just off the coasts of other States such as the Philippines or Malaysia? A purely legal answer to this question is difficult. On the other hand, it is easy to see that China's claim to the Spratlys has no legal basis and is just one aspect of a maritime expansion policy. On this point, the People's Republic of China even overlooks its deep-seated antagonism to Taiwan and endorses the claims of the rival Chinese Government.4

PROSPECTS FOR A SETTLEMENT International law requires States to negotiate. This is the meaning of Article 33 of the Charter, to which the various parties involved in this dispute are signatories. The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means. Yet it is impossible to overlook the fact that the Security Council largely lacks the objectivity required of a decision-making organ, owing to the special place given to permanent members armed with the right of veto. True, the Charter does provide, in Article 27, paragraph 3, for the abstention of any member involved in a dispute, but there remains the considerable political might of the Great Powers. Hence China, a permanent member, has prevented the Security Council from taking any initiative in this field, particularly in 1988, when Vietnam attempted to bring the matter before the Council. Negotiations do not therefore depend on mediation by third parries and will only be possible bilaterally for the Paracels, and, for the Spratlys, multilaterally between the States concerned. Negotiations would depend on a genuine will to negotiate. 4

See Michael Bennett, 'The People's Republic of China and the Use of International Law in the Spratly Islands Dispute' (1991-1992) Stanford Journal of International Law at p. 448.

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True, the development and reinforcement of regional organizations, particularly with Vietnam's recent entry into ASEAN (1995), may favour such negotiations. Yet in the present state of affairs the prospect of settling the dispute on a negotiated basis is almost nil. In the case of the Paracels, China maintains that there is nothing to negotiate. It holds the archipelago by military force, backing this up by an emphatic claim to sovereignty. In the case of the Spratlys, bilateral or multilateral diplomatic meetings since 1988 have prompted China to develop the idea of reserving the issue of sovereignty and negotiating a formula which would allow the States concerned jointly to develop the wealth of the area. The other States do not agree, but have thus reached an impasse. Of all the partners involved, Vietnam is the one which appears to be the most tempted by a judicial settlement. However, access to the International Court of Justice is voluntary, between States which have accepted in advance the compulsory jurisdiction clause, which is a general way of recognizing the jurisdiction of the judicial organ of the United Nations. Neither China, nor Vietnam, nor Malaysia have signed this clause. The Philippines recognized the jurisdiction of the Court in 1972, but with reservations which exclude the present dispute.5 It is not therefore possible for one of the States concerned to bring the matter before the Court by means of a unilateral application, and to benefit from the Court's jurisdiction on that basis. There remains a second possibility of bringing the matter before the Court (or any other international tribunal which States might wish to approach), namely a special agreement. Under this, two or more States agree between themselves to bring a dispute before the Court (the terms of the dispute being defined by the parties themselves). The current circumstances hardly favour such a solution. This is regrettable. On this point, the sovereignty of States impedes any significant advance in international law and in its role in peace between nations, since true law can hardly exist without conflicts being justiciable. The option offered to States on the pretext of scrupulously respecting their sovereignty, namely of refusing to submit their conflicts with other States to a tribunal, renders international law crude and imperfect. Such a tribunal does however exist, in the institution of the International Court of Justice, the judicial organ of the United Nations. China has a judge at the Court. Therefore it does not reject the principle of the existence of such a court. In a host of documents China has stated loud and clear that it has irrefutable evidence of its ancient historical rights to the archipelagos. 5

See the declaration by the Philippines, (1993-1994) Yearbook of the International Court of Justice, at pp. 117-118.

Conclusions and Bases for a Settlement 141

What has it to fear in expounding its arguments before a broad court such as the one in The Hague? Granted, this study has shown that Vietnam's rights, particularly its rights to the Paracels, are more certain, being more clearly established on the basis of the available documents. If China has further, unpublished documents at its disposal, what does it have to fear in submitting them to the Court? If nothing in its history has created a title in its favour more solid than that constructed by the Emperors of Annam, the judicial disputatio would enable the judges to establish, on the basis of events since French colonization, how that title has been maintained. Keeping the Paracels by force without clarifying these questions means fuelling a future source of discord comparable, all other things being equal, to the Falklands. In the case of the Spratlys, there again, expounding legal arguments under the spotlight of judicial proceedings would be a factor of peace, whereas the current, highly unstable situation is pregnant with menace. In the case of the Spratlys, a special agreement between any two of the five contenders (six if we count Brunei) would be most likely be a powerful factor triggering general proceedings for a settlement. This would place the other claimant States in an embarrassing situation: either they would run the risk of the islands' fate being settled by the Court without them and perhaps to their disadvantage, or, by applying for permission to intervene, they would also become party to the proceedings so that they could set out their rights and seek to protect them. Were this to happen, the case of the Spratlys as a whole would be brought before the Court. The Court's task would not be easy, since only Vietnam and France have acquired true historical titles to the archipelago, even if the extent and scope of such titles are uncertain. Whatever solution is found will require a genuine effort of imagination and co-operation by both the parties and the judges. One solution would be to create a condominium, a legal regime established by treaty, under which several States would jointly exercise over a single territory the powers normally exercised by a single State. Power would be shared, something which might be achieved under various arrangements. It is a compromise solution, embodying international collaboration restricted to the management of a single space. By reducing political tension, a condominium would be a bulwark against the threat of regional imperialism by a single power. These risks are great in the South China Sea owing to the growing strength of the Chinese Navy.

142 Chapter IV

A condominium over the Spratlys might take the form of an agreement between all States concerned to create an international joint development agency with a twofold objective: securing the safety of navigation in the region by maintaining buoys and lighthouses; managing the resources of the sea or seabed which, under the Convention on the Law of the Sea, belong to the holder of title to sovereignty over land above sea level. Sovereignty would be jointly managed by the group of States having concluded the agreement governing the condominium. This would lead to the award of mining and fisheries concessions. The agency would be financed by contributions from the States parties to the condominium, enabling it to operate. The agency would redistribute the profits to the States parties. The crucial point would be fixing States' respective shares in the agency, such shares controlling their contribution of the budget but also their share of the profits. It will not be easy to determine the shares of the various parties, since there are not only true islands but also tiny slivers of land scattered over a large maritime area, alongside the barely submerged shoals and banks which pose such a threat to navigation and which geological movement might push clear of the water at some time in the future.6 In an endeavour to overcome this real difficulty, some authors have suggested sectors as a solution,7 whereby States would share exploration rights in delimited zones, based on the main islands under their control. The same authors endorse the Chinese proposal for joint development of the area, leaving settlement of the question of sovereignty in abeyance. They thus suggest a formula for sharing development rights between the States of the region, totally disregarding previously acquired titles.8 These various solutions and the very fact of entrusting the framing of such solutions to the international Court of Justice may appear Utopian at present, but with the unrest facing the world, and the speed of change, it may perhaps soon appear imperative, in order to rescue States from the impasse into which their rivalries have led them. The future will belong to solutions which take account of interdependence. The road leading to a solution is 6 7

8

For the Chinese claim on this point, see Zhou, op. cit., p. 544. Mark J. Valencia, South-East Asian Seas: Oil under Troubled Waters, (Oxford, New York: Oxford University Press, 1983), pp. 124 et seq. See Mark Valencia, Jon van Dyke & Noel Ludwig, Sharing the Resources of the South China Sea (Martinus Nijhoff, 1997). For an analysis which insists in taking legal titles into account, see Jonathan I. Charney, 'Central East Asian Maritime Boundaries and the Law of the Sea' (1995) American Journal of International Law, vol. 89, n°4, at p. 729.

Conclusions and Bases for a Settlement 143

negotiation in good faith, not the option of superior force. This is why China's current political position, the proposal jointly to develop the wealth of the archipelago, whilst reserving the question of sovereignty, is unacceptable to the partners, reflecting as it clearly does the hegemonic claim that might is right. The peoples of the region, embarking impatiently and eagerly on the journey to long-awaited economic growth, need all their natural resources. The resources of the sea are decisive. Their peaceful exploitation requires the delimitation of maritime spaces. Yet there can be no delimitation unless the question of sovereignty is settled first. This indicates how important the question of sovereignty over the Paracels and Spratlys is. It is hoped that this book has helped to shed some light on it.

Bibliography

GENERAL TEXTS Apollis, G., L'emprise maritime de l'Etat cotier, Paris: Pedone, 1981. Bastid, S., 'Les problemes territoriaux dans la jurisprudence de la Cour Internationale de Justice', RCADI (Recueildes Cours de l'Academie de Droit International, vol. 107 (1962), 360 etseq. Bedjaoui, M. (ed.) Droit international. Bilan et perspectives, Paris: Pedone, UNESCO, 1991. Cavare, L., Le droit international public positif, Paris: Pedone, 1961. Chaumont, C, 'Cours general de droit international public', RCADI (Recueil des Cours de l'Academie de Droit International), vol. 129, (1970), 339 et seq. Combacau, J. and Sur, S., Droit international public, Paris: Montchrestien, 1993. Deveria, Histoire des relations de la Chine avec l'Annam- Vietnam, Paris: 1880, republished 1969. Devillers, P., Paris-Saigon-Hanoi -Les archives de la guerre 1944-1947, Paris: Gallimard/Julliard, 1988. Dupuy, RJ. and Vignes, D., Traite du nouveau droit de la mer, Paris, Brussels: Economica-Bruylant, 1985. Foumiau, C.,Annam-Tonkin. 1885-1896, Paris: L'Harmattan, 1989. Greenfield, J., China's Practice in the Law of the Sea, Oxford: Clarendon Press, 1992. Guyomar, G., Commentaire du reglement de la Cour Internationale de Justice, Paris: Pedone, 1983. Joyaux, R, Geopolitique de l'Extreme-Orient, 2 volumes, Paris: Complexe, 1991-1993.

146 Bibliography

Kohen, M.G., Possession contestee et souverainete territoriale, Publications of the University Institute of Higher International Studies of Geneva, Paris: Presses Universitaires de France, 1997. Lucchini, L. and Voelckel, M., Droit de la mer, vol. I, La mer et son droit. Les Espaces maritimes, Paris: Pedone, 1990. Nguyen Huu Tru, Quelques problemes de succession d'Etats concernant le Vietnam, Brussels: Bruylant, 1970. Nguyen Khac Vien, Vietnam. Une longue histoire, Hanoi: Foreign Language Publications, 1987. Nguyen Quoc Dinh, Daillier, P. and Pellet, A., Droit international public, Paris: L.G.D.J., 1994 Prescott, J.R.V., The Maritime Political Boundaries of the World, London, New York: Methuen, 1985. Roche, A.G., The Minquiers and Ecrehos Case, Geneva: thesis No. 115, 1959. Ruscio, A., Vietnam -lI'histoire - la terre - les homines, Paris: L'Harmattan, 1989. Thierry, H., Combacau, J., Sur S. and Vallee C, Droit international public, Paris: Montchrestien, 1979. Xing Qu, Les relations franco-chinoises de 1949 a 1955, thesis at the Institut d'Etudes Politiques, Paris, 1992. ARTICLES BY LEGAL COMMENTATORS ON GENERAL ISSUES Baral, J., 'L'acquiescement dans la jurisprudence internationale', Annuaire Francais de Droit International (1985), 389 et seq. Briscoe, J., 'Islands in Maritime Boundary Delimitation', Ocean Yearbook! (1988). Cohen-Jonathan, G., 'Les iles Falkland (Malouines)', Annuaire Francais de Droit International (1972) 235 etseq. von der Heydte, F.A.F., 'Discovery, Symbolic Annexation and Virtual Effectiveness in International Law', American Journal of International Law (1935), 448 et seq. Fitzmaurice, Sir G., 'The Law and Procedure of the International Court of Justice', British Yearbook of International Law (1955-1956), 20 et seq. Khadduri, M., 'Iran's Claim to the Sovereignty of Bahrain', American Journal of International Law (1951), 631 et seq.

Bibliography 147

Oraison, A., 'A propos du differend franco-malgache sur les iles eparses du Canal de Mozambique', Revue generale de Droit International Public (1981) 465 et seq. Orent, B. and Reinsch, P., 'Sovereignty over Islands in the Pacific', American Journal of International Law (1941), 443 et seq. Schwarzenberger, G., 'Title to Territory: Response to a Challenge', American Journal of International Law (1957), 308 et seq. In general, the column 'Chronique des faits internationaux' in Revue generale de Droit International Public. BOOKS AND ARTICLES ON THE QUESTION OF THE ARCHIPELAGOS OF THE SOUTH CHINA SEA Beauvois, M., 'Les archipels Paracels et Spratleys', Saigon: Vietnam Press, 1971. Documentation Francaise. Problemes politiques et sociaux (March 1973). Bennett, M., "The People's Republic of China and the Use of International Law in the Spratly Islands Dispute', Stanford Journal of International Law, vol. 28 (1991-1992), 425 et seq. Chao, J.K.T., 'South China Sea: Boundary Problems Relating to the Nansha and Hsisha Islands', Chinese Yearbook of International Law, vol. 9 (1989-1990) 67 et seq. Charney, J.I., 'Central East Asian Maritime Boundaries and the Law of the Sea', American Journal of International Law, vol. 89, No. 4 (October 1998), 724. Cheng, T., 'The dispute over the South China Sea Islands', Texas International Law Journal, vol. 10, No. 1 (1975). Chi Kin Lo, China's Position towards Territorial Disputes. The case of the South China Sea Islands, London: Routledge, 1989. Chiu Hung Dah, 'Delimiting the Seabed and Future Shipping Routes, China Quarterly No. 72 (December 1977) and 'Exploration and Exploitation of Ocean Resources in the Western Pacific'. Korean Journal of International Studies, Seoul, vol. XV, No. 1 (1983-1984). Couteau-Begarie, H., Geostrategie du Pacifique, Paris: Economica, 1987. Ferrier, J.P., 'Le conflit des iles Paracels et le probleme de la souverainete sur les iles inhabitees', Annuaire Francais de Droit International (1975), 173 et seq.

148 Bibliography

Focsaneanu, L., 'Les traites de paix du Japon', Annuaire Francois de Droit International (I960), 256 et seq. Garver, J.W., 'China's Push through the South China Sea. The Interaction of Bureaucratic and National Interests', The China Quarterly (1992), 999 et seq. Gomane, J.P., 'Incidents en mer de Chine meridionale', L'Afrique et l'Asie modernes (1974), 48 et seq. Heinzig, D., Disputed Islands in the South China Sea, Wiesbaden: Otto Harrassowith and Hamburg: Institute of Asian Affairs. Hurel, A., Le iles Spratleys: une source de conflit en Asie du Sud-Est, Paris; Memoire, 1994. Jianming Shen, 'International Law Rule and Historical Evidence Supporting China's Title to the South China Sea Islands', Hasting International and Comparative Law Review, vol. 21, No. 1 (1997). Katchen, M.H., 'The Spratly Islands and the Law of the Sea: Dangerous Ground for Asian Peace', Asian Survey (December 1977) 1167 et seq. Kittichaisaree, K., The Law of the Sea and Maritime Boundary Delimitation in Southeast Asia, Oxford: Oxford University Press, 1987. Kuan-Tsyh Yu, S., 'Who Owns the Paracels and Spratlys? An Evaluation of the Nature and Legal Basis of the Conflicting Territorial Claims', Chinese Yearbook of International Law, vol. 9 (1989 1990) 1 etseq. Labrousse, H., 'Les tensions en mer de Chine du Sud', Defense Rationale (February 1988) 109 et seq. 'Les ambitions maritimes de la Chine', Defense Nationale (February 1994), 331 et seq. 'Quelle solution pour les Spratleys?', Defense Nationale (December

1994), 129 et seq. Lafont, P.B. (ed.), Les frontieres du Vietnam, Paris: L'Harmattan, 1989. Lapique, P.A., A propos de iles Paracels, Saigon: Les editions d'ExtremeAsie, 1929. Lasserre, F., Le dragon et la mer. Strategies geopolitiques chinoises en Mer de Chine du Sud, Montreal: Harmattan Inc., 1996. Lechervy, C, 'Indochine: les nouvelles frontieres', Politique etrangere, No. 3(1992), 585 et seq. Le Thanh Khe, L'affaire des iles Paracels et Spratleys devant le droit international, Institut International d'Etudes et de Recherches Diplomatiques, 1958.

Bibliography 149

Lee Yong Leng, 'Offshore Boundary Disputes in Southeast Asia', Journal of Southeast Asia (November 1978). Luchaire, E, 'Le probleme des frontieres chinoises', Bulletin de l'Institut International d'Administration Politique (October-December 1968). Madrolle, C, 'La question de Hainan et des Paracels', Revue Politique Etrangere (1939). Marston, G., 'Abandonment of Territorial Claims: the Cases of Bouvet and Spratly Islands', British Yearbook of International Law, L VII (1986), 335 et seq. Milivojevic, M., 'The Spratly and Paracel Islands Conflict', Survival (1989), 70 et seq. Niquet, V., 'Le Vietnam face au monde chinois', Defense Nationale (January 1994), 131 et seq. Ocampo-Kalfors, S., 'Easing towards Conflict', Far Eastern Economic Review (28 April 1983). O'Connell, D.P., 'The Status of Formosa and the Chinese Recognition Problem', American Journal of International Law (1956), 405 et seq. Pan Shiying, The Petropolitics of the Nansha Islands - China's Indisputable Legal Case, published and distributed by Economic Information Agency, July 1996, 196 pages. Park, C-H., 'The South China Sea Disputes: Who Owns the Islands and the Natural Resources?', Ocean Development and International Law, vol. 5, No. 1 (1978) 28 er.se?. Rousseau, C, 'Chronique des faits internationaux', Revue generale de Droit International Public (1972), 826 et seq. Saix, O., 'Iles Paracels', Terre-Air-Mer-La geographie, LX No. 5 and 6 (Nov-Dec 1933). Samuels, M.S., Contest for the South China Sea, New York and London: Methuen, 1982. Sauvaire Jourdan, C, 'Les Paracels, infiniment petits de notre domaine colonial', La Nature (1 November 1933). Segal, G., 'Asie de 1'Est: le nouveau paysage strategique', Politique etrangere, No. 3 (1992), 551 et seq. Teh Juang Chang, 'China's Claim of Sovereignty over the Spratly and Paracel Islands. A Historical and Legal Perspective', Case Western Reserve Journal of International Law, vol. 23 (1991), 399 et seq.

150 Bibliography

Thomas, B.L., 'The Spratly Islands Imbroglio: A Tangled Web of Conflict', in: International Boundaries and Boundary Conflict Resolution, conference proceedings, 1989. Tra Dih Gian, 'The Geographical and Political Aspects of Eastern Asia. Problems and prospects', Southeast Asia (30 August 1990). Tu Dang Minh Thu, Le differend des iles Paracels et Spratleys, Ses problemes juridiques, Paris: Memoire, 1976. Valencia, M.J., South East Asian Seas: Oil under Troubled Waters, Oxford and New York: Oxford University Press, 1985. Valencia, M., van Dyke, J. and Ludwig, N., Sharing the Resources of the South China Sea, Martinus Nijhoff, 1997. van Dyke, J.M. and Bennett, D.L., Islands and the Delimitation of Ocean Space in the South China Sea, mimeographed paper. Vo Long Te, Les archipels Hoang Sa et Truong Sa selon les anciens ouvrages vietnamiens d'histoire et de geographie, Saigon, 1974. Yamane, H., 'Le Japon et la peninsule indochinoise', Defense Nationale (January 1988). Zhou Jian, Les frontieres maritimes de la Chine, thesis, 2 vol., University of Paris X, 1991. To this set of articles or chapters of books on the question of the Paracels and Spratlys must be added very many articles found in legal journals or in the press, in particular: L 'Asie Francaise Dong Thanh Le Courrier du Vietnam L 'eveil de l'Indochine Far Eastern Economic Review Le Figaro Le Journal des Coloniaux - l'armee coloniale Liberation Mer et Colonies Le Monde Le Monde colonial illustre Le Monde Diplomatique Newsweek

Bibliography 151 Pekin - Informations La Revue generale de droit international public (international events column) Temps nouveaux ARBITRAL JUDGMENTS OR AWARDS Aves Island case Netherlands - Venezuela Award of 30 June 1865 Bulama Island case United Kingdom - Portugal Award of 21 April 1870 Case concerning the frontier between British Guiana and Brazil United Kingdom - Brazil Award of 6 June 1904 Island of Palmas case United States - Netherlands Award of 4 April 1928 Clipperton Island case Mexico - France Award of 28 January 1931 Minquiers and Ecrehos case France - United Kingdom Judgment of the International Court of Justice of 17 November 1953 Eastern Greenland case Denmark - Norway Judgment of the Permanent Court of International Justice of 5 April 1933 Western Sahara case Opinion of the International Court of Justice of 16 October 1975 Case concerning the delimitation of the maritime frontier between Guinea and Guinea-Bissau Judgment of 14 February 1985

152 Bibliography

MISCELLANEOUS Ad hoc documents produced by the Vietnamese government to explain its position; - Note by the Foreign Ministry of the Socialist Republic of Vietnam on provocations and incursions into Vietnamese territory by the Chinese authorities in the frontier region, Bulletin du Vietnam, Paris, 15/31 March 1979. - Vietnam's Sovereignty over the Hoang Sa and Truong Sa Archipelagos, Information and Press Department, Ministry of Foreign Affairs, Hanoi, 1979. - Les archipels Hoang Sa and Truong Sa, territoire vietnamien, Ministry of Foreign Affairs of the Socialist Republic of Vietnam, 1981. - Les archipels Hoang Sa et Truong Sa (Paracels et Spratley), published by the Courrier du Vietnam, Hanoi, 1984. - Les archipels Hoang Sa (Paracels) et Truong Sa (Spratlys) et le droit international. Documents expressing the Chinese positions - Les nouvelles sinologiques, 1988, No. 5,6,7,8,9,10. - La souverainete incontestable de la Chine sur les iles Xisha et les iles Nansha, document published by the Foreign Ministry of the People's Republic of China, 30 January 1980. Documents relating to the draft peace treaty with Japan and the San Francisco Conference (1951) - Note to the Soviet government from the Chinese government, 22 March 1951. - Statement by the Foreign Minister of the People's Republic of China, Chou en-Lai, on the draft peace treaty with Japan and the San Francisco Conference (Beijing, 15 August 1951). - Report of debates in the Parliamentary Assembly of the Union Francaise, 25 March 1952.

Bibliography 153

United Nations documents -A/43/346/2 May 1988 A/43/363/16 May 1988 ARCHIVE DOCUMENTS The main documents concerning this affair were found: In the archives of the French Foreign Ministry Series Asia 1918, 1929 AS- 18-40 China 797, 40-55 China N.S. China 96, 126, 559-568, 608-612, 597-601 N.S. Indochina 4, 5, 6, 7, 11, 17,18, 19-25, 31, 33, 34 volume No. 312 Asia-Oceania, series E, box 117 In the overseas archives (Aix-en-Provence) Boxes Indochina 32, 34, 35, 36 N.F. 225, 268, 271, 610, 684, 662, 1010, 1018, 1024, 1025, 1026, 1859 I.C. boxes 306, 308, 227, 261, 309 MAPS After a systematic trawl through the card-index of the maps department of the National Library in Paris, the following maps were consulted: Ge D 9210 Ge D 8693 Ge B 220 Ge FF 13341 (89) Ge FF 7909 Ge D 7552 Ge D 24950 Ge C 21797 Ge D 817

Guillaume le Testu, 1554 Netherlands, possessions, 17th century Dutch naval chart, 18th century Indochina, 17th century German map, 1867 Tonkin and Cochin China, Paris 1863 Indochina, naval charts, 1880 Naval charts, 1881 De Lanessan, 1888

154 Bibliography

Ge C 3067 Ge B 372 Ge AA 25 Ge C 15245 Ge D 20526 Ge CC 3506 Ge D 21832 Ge C 5904 Ge D 21831 Ge DD 2987 Ge D 3610 Ge CC 2301(23) Ge C 10431 Ge C 17228 Ge C 18375 Ge C 16640 Ge C 4272 Ge DD 2987 (7212) Res. Ge AA 1318 Res. GeB219 Res. Ge B 220 Res. Ge B 214 Ge B 1509(6836) Ge DD 2987 B (7160.61) Ge 2301/17 Ge C 2280 Ge C 15165 Ge C 4269 Ge CC 556

Indochina, 1893 Paire expedition, 1893 Vidal Labloche, 1897 Girard and Barrere IGN, manual for the use of troops, 1947 Indochina, administration, 1939 Indochina, airstrips, 1951 Aeronautical Indochina, 1936 Indochina, aviation, radio, 1951 China Sea, 1745 China Sea, 1792 China Sea 1821 China Sea, coasts, 1712 Indochina, bathymetric and fisheries map Political map of Indochina, 1951 Provinces of Indochina, 1940 Indochina, typhoons China Sea, 1643 China Sea, Peter Goes, 1680 Nautical chart, China Sea, late 17th century Nautical chart, China Sea, late 17th century Dutch nautical chart, late 17th century Hydrographical map, 18th century China Sea, 1740 Paracels (Western Group) by D. Rops, Lieutenant of the Bombay Marine, 1808 IGN, 1945 Air infrastructure of Indochina, 1939 Geographical Service of Indochina, 1911 April 1903

The following portfolios were also consulted at the National Library (maps department): Portfolios 180, 181, 182 The following portfolios were also consulted at the National Library (maps department): Portfolios 180, 181, 182

Annexes

1 2 2A 3 4

Map of the South China Sea Chinese map showing China's maritime claims Illustration of these claims Map of the Paracels List of islands and islets

5

Letter from the Governor General of Indochina to the Minister for the Colonies, 20 March 1930 Map showing the occupation of the Spratlys (B.L. Thomas) Letter from Captain de Kergariou Locmaria, 28 August 1788 Letter from the Chief Resident of Annam to the Governor General of Indochina, 22 January 1929 Map from the 14th year of the reign of Minh Mang Note from the Legation of the Chinese Republic in France, 29 September 1932 Internal Ministry of Foreign Affairs Note to the Directorate for Asia from the Legal Adviser, 25 May 1950 Note from the Government General of Indochina, Directorate for Political and Indigenous Affairs, 6 May 1921

6 7 8 9 10 11 12 13 14

15 16 17 18

Note from Mr Beauvais, Consulate of France in Canton, 4 May 1909 Letter from the official in charge of the Consulate of France in Canton to the President du Conseil, Minister for Foreign Affairs, 6 October 1921 Letter from Mr Beauvais, Consul of France in Canton, to the Minister for Foreign Affairs, 4 May 1909 Letter from the Minister for the Colonies to the President du Conseil, Minister for Foreign Affairs, 18 April 1921 Letter from the Acting Governor General of Indochina to the Minister for the Colonies, 26 December 1927 Note from Mr Bourgouin, 8 March 1928

156 Annexes

19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41

Note to the Under-Directorate for Asia-Oceania, 26 November 1928 Letter from the Acting Governor General of Indochina to the Minister for the Colonies, 17 December 1928 Letter from the Minister for Foreign Affairs to the Minister for the Colonies, 26 February 1929 Letter from the Minister for the Navy, acting Minister for the Colonies, to the Minister for Foreign Affairs, 18 February 1929 Telegram of 3 April 1929 Telegram of 14 March 1930 Letter from the Minister Plenipotentiary of the French Republic in China to the Minister for Foreign Affairs, 28 July 1930 Letter from the Governor General of Indochina to the Minister for the Colonies, 18 October 1930 Telegram of 4 July 1931 Decree by the Governor General of Indochina, 5 May 1939 Telegram of 8 March 1929 Decree by the Governor of Cochin China, 21 December 1933 Letter from the Minister for Defence to the Minister for Foreign Affairs, 30 March 1932 Note from the Ministry of Foreign Affairs, Directorate for Political Affairs and Trade (Asia), 10 August 1940 Letter from General Juin, Chief of Staff of National Defence, to the Chairman of the Committee on Indochina, 7 October 1946 Report of French naval mission to Pattle Island Telegram of 8 March 1947 Wire from Agence France Presse of 31 May 1947 and telegram of 3 June 1947 Telegram of 25 January 1951 Note from the Legal Department, 6 September 1946 Letter from the Minister of State with responsibility for relations with Associated States to the Minister for Overseas Territories, 7 May 1951 Letter from General Jacquot to the Secretary of State with responsibility for relations with Associated States, 16 June 1955 Letter from the Wai Kiao Pou to the Consulate of France in Canton, 29April l949

Annexes 157

42 43

Note from the Directorate for Asia-Oceania, 15 May 1950 Telegram of 23 April 1949

ANNEX 1 Map 2: South China Sea

Hung Dah Chiu, South China Islands. Implications for delimiting the sea bed and future shipping routes

ANNEX 2

ANNEX 2A Chinese Claims Legend: Maximum claim to offshore territory

ANNEX 3

ANNEX 4 SITUATION OF THE PARACELS AND SPRATLYS AT THE END OF 1993 I- HOANG SA/ PARACELS/ XISHA ARCHIPELAGO Islands and banks

CÁC ĐẢO, BÃI CHÍNH 1.

2.

Vietnamese Name NHÓM AN VINH Cốn Cát Tây Đảo Cây ĐảoBắc Đảo Trung Cốn Cát Nam Đảo Phú Lâm Đảo Linh Côn Đảo Nam

English Name AMPHITR1TE GROUP West Sand Tree Island North Island Middle Island South Sand Woody Island Lincoln Island South Island

NHÓM LƯỠI LIỀM Đá Bắc Đảo Hoàng Sa Đảo Hữu Nhật Đảo Quang Ảnh Đảo Duy Mộng Đảo Quang Hoà Đảo Tri Tôn Bãi Gò Nói Bãi Thuỷ Tề Bãi Quảng Nghĩa Bãi Châu Nhai Đá Bông Bay Đá Chim Yến Đá Lối Đá Bạch Quy

CRESCENT GROUP North Reef Pattle Island Robert Island Money Island Drummond Island Duncan Island Triton Island Dido Bank Neptuna Bank Jehangir Bank Bremen Bank Bombay Reef Vuladdore Reef Discovery Reef Passu Keah Island

Chinese Name XUANDE QUNDAO Xi Shazhou Zhaoshu Dao Bei Dao Zhong Dao Nan Shazhou Yongxing Dao Dong Dao Nan Dao YONGLE QUNDAO Bei Jiao Shanhu Dao Ganquan Dao Jinyin Dao Jingquing Dao Chenghang Dao Zhongjian Dao Xidu Tan Beibianlang Zhanhan Tan Binmei Tan Langhua Jiao Yuzhuo Jiao Huaguang Jiao Panshi Yu

Annex 4 163

II- TRUONG SA/ SPRATLYS/ NANSHA ARCHIPELAGO UNDER VIETNAMESE CONTROL 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21.

Vietnamese Name Đá Lát Đảo Trường Sa Đá Tây Đá Giữa (Đảo Trường Sa Đông) Đá Đông Đảo An Bang Bãi đá Thuyền Chài Đảo Phan Vinh (Hòn Sập) Đá Tốc Tan Đá Núi Le Đá Tiên Nữ Đá Lớn Đá Len Đao Đá Cô Lin Đảo Sinh Tồn Đảo Sinh Tồn Đông (Đá Gri san) Đảo Nam Yết Đảo Sơn Ca Đá Núi Thị Đảo Song Tử Tây Đá Nam

English Name Ladd Reef Spratly Island West Reef Central Reef

Chinese Name Riji Jiao Nanwei Dao Xi Jiao Zhong Jiao

East Reef Amboyna Cay Barque Canada Reef Pearson Reef Alison Reef Cornwallis South Reef Pigeon Reef (Tennent Reef) Great Discovery Reef Landsdowne Reef Collins Reef Sin Cowe Island Grierson Island

Dong Jiao Anbo Shazhou Bai Jiao Bisheng Jiao Liumen Jiao Nanhua Jiao Wumie Jiao Daxian Jiao Qiong Jiao Guihan Jiao Jinghong Dao Ranqing Shazhou

Namyit Island Sandy Cay Petley Reef Southwest Cay South Reef

Hongxiu Dao Dunqian Shazhou Bolan Jiao Nanzi Dao Nan Jiao

164 Annex 4

UNDER CHINESE CONTROL Vietnamese Name

English Name

Chinese Name

1.

Đá Chữ Thập

Fiery Cross Reef

Yongshu Jiao

2.

Đá Châu Viên

Cuarteron Reef

Huayang Jiao

3.

Đá Gạc Ma

Johnson Reef

Chigua Jiao

4.

Đá Huy Gơ (Đá Tư Nghĩa)

Hughes Reef

Dongmen Jiao

5.

Đá Ga Ven

Gaven Reef

Nanxun Jiao

6.

Đá Én Đất

Eldad Reef

Anda Jiao

7.

Đá Xu Bi

Subi Reef

Zhubi Jiao

8.

Đá Vành Khăn

Mischief Reef

Meiji Jiao

UNDER FILIPINO CONTROL Vietnamese Name

English Name

Filipino Name

1.

Đảo Song Tử DĐông

Northeast Cay

Parola Island

2.

Đảo Dừa ( Bến Lạc)

West York Island

Likas Island

3.

Đảo Thị Tứ

Thitu Island

Pagasa Island

4.

Đảo Bình Nguyên

Flat Island

Patag Island

5.

Đảo Vĩnh Viễn

Nanshan Island

Lawak Island

6.

Đảo Công Đo

Commodore Reef

Rizal Reef

7.

Cồn san hô lan can

Lamkian Cay

Panata Shoal

Loaita Island

Kota Island

(Bãi An Nhơn) 8.

Đảo Loại Ta

UNDER MALAYSIAN CONTROL Vietnamese Name

English Name

Malaysian Name

1.

Đá Ky Vân

Mariveles Reef

Terumbu Mantanani

2.

Đá Kiệu Ngựa

Ardasier Reef

Terumbu Ubi

3.

Đá Hoa Lau

Swallow Reef

Terumbu Layang Layang

Đá Én Ca Bãi Thám Hiểm

From June 1999 Erica Reef Investigator Reef

4. 5.

Terumbu Siput Terumbu Peninjan

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UNDER TAIWANESE CONTROL Vietnamese name Đảo Ba Bình

English name Itu Aba Island

Taiwanese name Taiping dao

ANNEX 5

Letter No. 704-A-Ex, dated 20 March 1930, from the Governor General of Indochina, Hanoi, to the Minister for the Colonies, Paris Further to my telegram No. 501 of 14 March on the sovereign rights claimed by the Provincial Government of Kwangtung over the Paracel Islands, I now have the honour to provide a more detailed reply to your letter No. 184 of 31 December on the same subject. As a preliminary measure I felt it my duty to advise you briefly, in the above-mentioned telegram, of the Government General's views on the matter. It was necessary to acquaint you without delay of the intentions of the Kwangtung Government, intentions which may be put into effect at any moment. I was myself informed of them by our Consul in Canton in his letter No. 17 of 20 February, a copy of which is enclosed. The decision of the Kwangtung Council is merely the natural progression of a series of moves by the authorities of South China to assert their rights of sovereignty over the Paracels. Your Ministry has been duly informed of them at regular intervals. The first and most significant move occurred in 1909, when an official ceremony marking the taking of possession was held on the initiative of the Viceroy of the Two Kwangs. It is likely that the Provincial Council of Kwangtung now claims that its decision is based on this ceremony. This taking of possession- on which France, the only power concerned, has never officially made its views known- would be legally valid only if the Paracels were res nullius at the time. Yet - unlike 1909 - the Chinese themselves have not always feigned certainty of this. Following the wreck in 1898 of the British vessels Bellona and Huneji Maru, which were then looted by Chinese fishermen, the Viceroy of Canton countered the protests of the Minister of Great Britain in Peking with the retort: 'The Paracels are abandoned islands which belong no more to China than to Annam, they are not administratively attached to any district of Hainan and no special authority is responsible for policing them.' This ambiguous reply would seem to imply that the author was not unaware of the ancient rights to the islands acquired by the Court of Annam. In your letter No. 184 you requested further information. Wishing to obtain accurate information myself, I asked the Chief Residency in Annam for details on 12 January 1929. A copy of Mr Le Fol's reply, dated 22 January 1929, is enclosed. The correspondence incontrovertibly establishes the priority of the rights of the Hue Court.

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The Japanese Government was in no doubt about the matter: in 1927 it requested its Consul General in Hanoi to make an unofficial approach to the Government General to ascertain the territorial status of several groups of islands in the China Sea. The Paracels were specifically excluded from this inquiry, since Mr Kurosawa, on the instructions of his Ministry, was aware that he could not discuss the status of this archipelago with a representative of France. It appears from a report written in 1927 by Mr Krempf, Director of the Oceanographic and Fisheries Department of Indochina, that the economic worth of the Paracels has been exaggerated. Since 1920, when a Japanese company - without permission - simply plundered the more accessible parts of them, the guano deposits which prompted several applications to the Government General for concessions have been of only minor importance. The strategic interest of the archipelago seems quite another matter. I can do no better than refer you to the above-mentioned letter from the Chief Resident in Annam, which makes this point remarkably well. I should add that Indochina would have a further interest in being mistress of these islands. Their geographical location obliges vessels setting a course from Saigon to Hong Kong to make a large detour in order to avoid these reef-strewn waters. As Mr de Monzie said in the letter you forwarded to me, a radio station on the islands to warn of typhoons would be of the greatest possible benefit to navigation in Indochinese waters. It is perhaps worth noting that Governor General Paul Doumer requested the colony's technical services to look into the possibility of constructing a lighthouse on the islands as early as 1899. Budgetary considerations alone prevented the actual construction from going ahead. To sum up, I agree wholeheartedly with your correspondents in recognizing that it would be in the interests of France to claim sovereignty over the Paracels on behalf of Annam. As I told you in my telegram of 14 March, the French Government has actually never definitively abandoned asserting the historical and geographical rights of the Empire under our protection. Considerations of expediency alone have so far militated against the official assertion of these rights. The grounds for temporization, initially set out in a note to your Ministry in 1921, were reiterated in my telegram No. 135-B of 3 April 1921. At that time, it seemed to me that the climate of opinion which had been stirred up in both Indochina and France over this issue did not justify any fresh conclusions. Moreover, it was clearly in our then interest not to alienate Chinese opinion at the very time when the SinoIndochinese Agreements were being negotiated in Nanking.

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The latter reason has become far less compelling with the adjournment of the negotiations sine die. I would even add that the conclusions of the letter of 22 August 1921 from the President du Conseil, Minister for Foreign Affairs, conclusions which were entirely relevant at the time and which echoed this Government General's view, are doubtless no longer so justified in the current state of affairs. That letter considered that incorporating the Paracels into the administration of Hainan Island would automatically entail the application to the islands of the provisions of the Peking Convention of 10 April 1898. France would therefore have had a guarantee against any cession of the islands. We would also have secured a subsidiary guarantee of nonfortification by obtaining a declaration from the Chinese Government in exchange for the official recognition by France of China's sovereignty. However, in 1921 Mr Maugras, Charge d' Affaires in Peking, and later Mr de Fleuriau, deemed that it would be inadvisable to initiate negotiations on the Paracels with a Government which did not have any authority in southern China. I cannot deny that it would be even more difficult to obtain from the Nationalist Government today something which our diplomatic representatives in China felt unable to request at a time when China stood divided under two equally weak Governments, and when the mystique of the Kuomintang had not yet reached the heights we see today. An attempt to negotiate on this subject would most probably be doomed to failure. As for unilateral action on our part, still a possibility, no doubt you will hold the consequent political drawbacks to be out of all proportion to the importance of the objective to be attained. Yet in view of the strategic interest of the archipelago for us and the force of the rights acquired by the Empire we have taken under our protection, I feel we cannot ignore the matter. Consequently, the most expedient attitude to adopt still appears to be wait and see. This has the advantage of reserving our rights until the day when more propitious circumstances allow us to secure their recognition. We may indeed find ourselves obliged to envisage the abandonment of certain advantages and privileges which we currently enjoy in China. The Paracels might then constitute a bargaining chip or compensation for our concessions on other points. I should be obliged if you would let me know, after consulting the Minister for Foreign Affairs, whether you approve of my view of the matter. In any event, I would be most grateful for instructions or suggestions on this question from your Ministry and from the Quai d'Orsay.

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For your own information, and also that of the Minister for Foreign Affairs, I enclose in duplicate a study on the Paracel Islands written by Mr Lapique. This brochure, complete with photographic material, is an interesting summary of what we know about the history and geography of the archipelago./. (Signed) Pasquier

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ANNEX 7 Excerpt from a letter dated 28 August 1788 from Count de Kergariou Locmaria, Captain of the frigate Calypso

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ANNEX 8

Letter of 22 January 1929, from the Chief Resident of Annam, Hue, to the Governor General of Indochina, Hanoi No. 184-A I have the honour to acknowledge receipt of your letter No. 103-A Ex dated 12 January 1929 regarding the ownership of the Paracels. The matter was the subject of a detailed study carried out in 1925, prior to the voyage undertaken by the director of the Nhatrang Oceanographic and Fisheries Institute. No new information providing a definitive answer to the vexed question of ownership having since emerged, I can do no more than reiterate the facts established by the above-mentioned investigation. The Paracels archipelago, deserted and barren, a veritable labyrinth of small coral islands and sandbanks deservedly feared by sailors, seems to have remained res nullius until the beginning of the last century. In his work The Geography of Cochin China, translated into English and published in the Journal of the Asiatic Society of Bengal in 1838, Monsignor Jean Louis Taberd, Bishop of Isauropolis and Apostolic Vicar of Cochin China-Cambodia and Champa, reports the occupation of the Paracels archipelago in 1816 by Emperor Gia Long, who is said ceremoniously to have raised the flag of Cochin China. Although doubts may be cast on the authenticity of the formal taking of possession by Gia Long himself, the occupation was nonetheless effective, as evidenced by works such as Annals of the Annamese Government (DaiNam-Nhat-Thang-Chi), book 6, Nam-Viet-Dia-Du, volume 2, a geographical work on Annam published in the 14th year of the reign of Minh-Mang, or Nam-Nhat-Thong-Chi, No. 4, a geographical work by Duy-Tan. These documents, conserved in the archives of the Annamese Government, give the following details. Under former dynasties, a corps of 70 men recruited from among the inhabitants of the village of Vinh-An formed a garrison on the Paracel Islands under the name Hoang Sa doi. Another doi named Bac Hai was later formed and placed under the command of the Hoang Sa doi. Gia Long reorganized the garrison in the Paracels, and later disbanded it. Since then, it does not appear to have been re-established.

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Minh Mang despatched several official missions with instructions to explore the archipelago. One of them discovered an ancient pagoda bearing an inscription in characters. In 1838 Minh Mang sent workmen and materials to the islands to erect a pagoda and a monument to commemorate the expedition. During the excavation required for this construction, around 2,000 pounds (can) of various objects - laminated copper, iron, pig-iron, etc. - were found, providing clear evidence of a former appropriation of the island. It would appear that Annam no longer has any connection with the Paracel Islands. Most of the fishermen or junk owners of the coast know nothing at all about the islands and none of them go there. Our proteges, therefore, appear not to have asserted their ownership of the Paracels for many years, although His Majesty Than-trong-Hue, former Minister for War who died in 1925, did state in a letter dated 3 March that year that 'these islands still belong to Annam, there is no dispute on this score'. When China claimed the islands in 1909, it should have been for France which, under the terms of the Treaty of Protectorate, had taken the place of Annam in the conduct of its foreign relations - to assert the right of the State under its protection to the islands in question. It seems on the contrary that France completely lost interest, thus playing into the hands of the Chinese, who were reportedly preparing officially to take possession (Eveil Economique, 30 December 1928). In the present circumstances, no-one is entitled to ignore the considerable strategic importance of the Paracels. In the event of war, their occupation by a foreign power would be one of the most serious conceivable threats to the defence and integrity of the territory of the [French] Union. The islands are actually the natural prolongation of Hainan. An adversary would find that they provided a powerful naval base, with wells and several excellent anchorages. By its very nature, such a base would be practically impregnable. A flotilla of submarines based there would be able not only to blockade Tourane, Annam's largest port, but also to isolate Tonkin by cutting off access from the sea. In order to maintain a link between Cochin China and Tonkin, we would be obliged to use the existing railway, even though this is too vulnerable because the coastal route lays it open to destruction by the long-range guns currently in use in existing naval units. Similarly, all communication between Indochina, the Far East and the Pacific would be cut off, since the shipping route between Saigon and Hong Kong, which passes close to the Paracels, would be directly under the eye of a base set up in the islands.

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I am well aware that these threats, and other more serious ones, cannot have escaped the notice of the competent authorities, although in my view some authorities have failed to appreciate the very serious nature of such threats. Nevertheless, I felt it my duty to bring them to your attention once again, at this critical juncture, since of all the countries of the Union, Annam will be the one most directly interested in a solution to the question./. (Signed) Le Fol

ANNEX 9 Map of Indochina - From the geographical work Hoang-Viet-Dia-Du 14th year of the reign of Minh Mang

ANNEX 10 Note of 29 September 1932 from the Legation of the Chinese Republic in France to the Ministry of Foreign Affairs, Paris On the instructions of its Government, the Legation of the Chinese Republic in France has the honour to transmit its Government's reply to the Foreign Ministry's Note of 4 January 1932 on the subject of the Paracel Islands. The Si-Chao-Chuin-Tao Islands ( ), also known as Tsi-CheouYang ( .) and called the Paracel Islands in the foreign tongue, lie in the territorial sea of Kwangtung Province (South China Sea); to the northeast are the Ton-Chao Islands ( ); the Si-Chao-Chuin-Tao Islands form one group among all the islands in the South China Sea which are an integral part of the territorial sea of Kwangtung Province. According to the reports on the Si-Chao-Chuin-Tao (Paracel) Islands drawn up in the Year XVII of the Chinese Republic (1926) by Mr ShenPang-Fei, President of the Commission of Inquiry into these islands, and to the files on the islands compiled by the Department of Industry of Kwangtung Province, the islands lie between longitude 110°13' and 112°47' east. More than 20 in number, large and small, most of them are barren sandbanks, 10 or so are rocks and 8 are true islands. The eastern group is called the Amphitrites and the western group the Crescent. These groups lie 145 nautical miles from Hainan Island, and form the southernmost part of Chinese territory. Clause 3 of the Convention on the Delimitation of the Frontier between China and Tonkin, signed in Peking on 26 June 1887, stipulates that at Kwangtung it is agreed that the disputed points which lie east and north-east of Mon Cai, beyond the frontier as determined by the Delimitation Commission, are allocated to China. The islands which are east of the north-south line passing through the eastern point of the island of Tch'a Kou, which forms the boundary, are also allocated to China. The Gotho Islands and the other small islands west of this line belong to Annam. The starting point of the frontiers between Indochina and the Chinese Province of Kwangtung is Chou-Chan ( ), at latitude 21 °30' north and longitude 108°2' east. Since the coastline of Indochina lies west of ChouChan, according to the above provisions, following the coast southwards from this point, the Paracel Islands in any event lie far to the east of the line and are separated from the coast of Indochina by Hainan Island. From their

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geographical position, it is easy to see to which country they should be attached. Apart from Woody Island and Lincoln Island, where guano deposits provide material for fertilizers, the remainder of the islands in the archipelago are formed of nothing more than sand or outcrops of coral, presenting no value from the point of view of colonization. The only people to visit these places are the inhabitants of Hainan Island, who come here to catch or collect fish and Indochinese people have never been known to settle there. What exceptional grounds did the Kings of Annam invoke for going there and erecting monuments and tablets? The French Government may well consider such literary allusions to be historical, but it omits to mention that 100 years ago Indochina was under Chinese tutelage. Since the Paracel Islands already formed part of China's territory, Indochina had no right to carry out acts of occupation on the possessions of its suzerain. The Foreign Ministry's Note does not say on what island monuments and tablets were erected. Compelling evidence which might justify the French Government's resort to the right of priority of claim is lacking. Since the Tenth Year of the Chinese Republic, the authorities of Kwangtung Province have already on more than five occasions granted authorization to Chinese nationals wishing to exploit the resources of the islands. The archives which substantiate these claims may be consulted. The French Government, moreover, has never before expressed any claim to occupy these islands. According to international law and custom, the prime condition for the possession of an island lying far from the mainland is the first effective occupation, in other words the nationals who were the first to settle lands, thereby bringing these territories into their country's possession. The natives of Hainan who settled in the Paracels, and built houses and fishing boats there to supply their needs, have done so since the distant past. Indeed, in 1909 the Government of the former Ch'ing dynasty sent a naval expedition to study conditions in the islands and to manifest its effective occupation to other nations of the world: the Chinese flag was raised and was saluted with a round of gunfire on Woody Island. The French Government made no protest, on that occasion either. In 1908 the question of constructing a lighthouse on one of the islands in the Paracels for the protection of shipping was a matter of international maritime importance. The Chinese Government, having received through the maritime customs service a request from the shipping companies concerned for the construction of a lighthouse, subsequently consented. In April 1930, on the occasion of the Meteorological Conference held in Hong Kong, the French Director of the Observatories of

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Indochina, Mr E. Bruzon, and the Director of the Zi-Ka-Wei Observatory, Reverend Father L. Froc, who both attended the Conference, suggested to the representative of China that an observatory might be set up in the Paracels. This proves that not only are the Paracel Islands internationally recognized as belonging to China, but that the French themselves share this view. It is difficult for the Chinese Government to verify the case involving the loss of vessels in the area of the Paracels in 1898, and the subsequent intervention of the British Consul in Hoihow, as stated in the Note of the Ministry of Foreign Affairs, since there is no mention of this matter in its records. The treaties, documents and records incontrovertibly show that the Paracels archipelago forms a part of China's territory. According to the principles of international law concerning the right of priority of claim and continuous occupation, the islands belong to China as a result of its occupation of them over a period of many centuries, and consequently there is no doubt that no other country may claim any rights to them./. Stamp of the Legation of the Republic of China, Paris

ANNEX 11 Internal Ministry of Foreign Affairs Note of 25 May 1950, addressed to the Directorate for Asia by the Legal Adviser Re: the Paracels The purpose of this note is not - with a view to any subsequent arbitral or jurisdictional debate - to establish the arguments on the merits which might be put forward in support of the claim to French sovereignty over the Paracels. Its purpose is solely to answer the question raised by the Directorate for Asia and Oceania in its Note No. 194 of 16 May 1950, namely to indicate the possibilities open to France 'to submit the case to the International Court of Justice, even unilaterally', for a settlement of the dispute between France and China concerning sovereignty over the archipelago. * *

*

The consistent reluctance of the Chinese Government, in 1947 as in 1937, to accept the French Government's proposal to take the matter to arbitration, suggests that the Chinese Government will be no more willing today than it was yesterday to conclude a special agreement with us on this point. Legally speaking, the only means of settlement which remains open is thus a unilateral one. Technically, we can do this, since the two States involved in the dispute have accepted the optional clause in the Statute of the International Court of Justice, recognizing the Court's compulsory jurisdiction. The Chinese Government did so by its declaration of 26 October 1946 and the French Government by its declaration of 18 February 1947, both of which are valid for a period of five years, on condition of reciprocity. The decision to initiate proceedings directly against the Chinese Government before the International Court of Justice therefore depends on the French Government - and the French Government alone. Although apparently simple, this procedure is not without difficulties, owing to the present situation in both Indochina and China. ** *

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A. France took possession of the Spratlys in 1931 -1932 'in the name of the Emperor of Annam'. The sole titles to which France lays claim in this case i.e. the earlier exercise of sovereignty - are titles which belong to Annam and it is in its capacity as the protector State, responsible for the conduct of Annam's foreign relations, that France claims to invoke these rights against third States and possibly to obtain recognition of such rights before the International Court. Were relations between France and Annam still governed by the Treaty of Protectorate concluded in Hue on 6 June 1884, this would present no difficulty; it would be for the French Government, acting as protector State, to exercise for and on behalf of the State under its protection, the powers which it is unable to exercise. However, such a view is more in line with the current state of the law, which is determined by the exchange of letters of 8 March 1949 between the President of the French Republic, in his capacity as President of the French Union, and Emperor Bao Dai, in his capacity as sovereign of Vietnam. Under Article II of these diplomatic instruments, 'Vietnam shall be empowered to negotiate and sign agreements relating to its own interests, on the express condition that, prior to any negotiation, it submits its plans to the Government of the Republic for examination by the High Council and that negotiations are conducted in consultation with the diplomatic missions of the Republic' Admittedly, on a narrow interpretation of the text, submitting the dispute to the International Court of Justice by means of a unilateral application could be said not to involve the 'negotiation' or the 'signature' of an 'agreement' at all. However, it would be difficult to deny that the dispute over the Paracels directly affects Vietnam's 'own interests'. The Vietnamese Government might therefore express the wish to share in the drafting of the application, might even demand that the application be submitted in its name, and might insist on appointing Vietnamese agents or counsel with instructions to defend the view of the applicant Govemment(s) before the Court. Such demands would probably raise no insoluble legal problems and their moderate character might even prompt the French Government to accept them. Yet it must be clearly seen that they would definitively enshrine Vietnam's international personality and would result in Vietnam appearing directly before the International Court of Justice, thus constituting a precedent whose ramifications it would be unrealistic to underestimate. ** *

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B. A second difficulty relates to the existence in Indochina of a de facto authority, the Government of Ho Chi Minh, which the French Government has refused to recognize, and against which it is engaged in hostilities. There seems very little likelihood - apart from inevitable protests on the radio and in the press - of this de facto authority intervening in any proceedings before the International Court of Justice. However, several third States have recognized the Ho Chi Minh Government as the sole Government of Vietnam. Without for one moment wishing to impugn the independence of the judges of the Court - who in no way are the agents of their respective governments - the possibility that this consideration might influence the decision of the judges - the Soviet, Yugoslav and Polish judges for example - who are nationals of the States which have already recognized Ho Chi Minh, can perhaps not be absolutely ruled out. The existence of two governments and the instability of the present situation in Vietnam might thus mean a weakening of the impact of the Court's Judgment, and might prompt dissenting opinions unwanted in their conclusions and their reasoning alike. ** * Similar objections must be made with regard to the Government of the respondent State. At present there are two authorities in China: one - the only one recognized by France - is the Nationalist Government; the other, the People's Republic of China (Government of Mao Tse Tung), which is recognized by several States including the USSR, the Republics of Eastern Europe, the United Kingdom, India, Pakistan and the Netherlands. Here too there is reason to believe that the Government of the People's Republic of China - especially if it succeeds meanwhile in establishing effective control over the Paracels - will not fail to pose as the sole heir to Chinese sovereignty in the archipelago. Unfortunately, the fact that China has a judge at the Court, and that consequently no Chinese judge ad hoc would be appointed, does not dispense with all the difficulties. Some of these are easily imagined: a demand by the Communist Chinese Government to take part in the proceedings; a refusal by that Government to recognize any international settlement achieved without its participation; possibly even rejection of the present Chinese judge, etc. Certain judges would most probably not fail to avail themselves of such arguments, thus strengthening neither our position nor the authority of the Court.

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** * For all these reasons, without of course claiming that such reasons are decisive in a debate in which political factors are also important, the Legal Department finds it preferable to defer settlement of the dispute before the Court until such time as a single, unchallenged governmental authority has been established in both China and Vietnam./. (Signed) A.S.

ANNEX 12 Note dated 6 May 1921, from the Directorate for Political and Indigenous Affairs, Government General of Indochina, Hanoi The first mention of the Paracel Islands found in the files of the Government General dates from 1898. At that time the Ministry of the Colonies, following a communication from our Consul in Hoihow, felt it proper to draw the Governor General's attention to the importance of the geographical situation of these islands in relation to Indochina. The Paracel Islands, over 150 nautical miles south-east of Hainan, lie more or less equidistant from Tuling Kan, the southernmost port of Hainan, and Tourane on the coast of Annam. They form a thinly scattered group of islands surrounded by coral banks. The largest, Woody Island, is only one mile long by three-quarters of a mile wide. Large expanses of reef feared by sailors lie scattered between the islands. A few islands are isolated and outlying, such as the Triton group to the south-west, Passu Keah Island to the south, Lincoln Island to the east. Others lie clustered in the two main groups: the Crescent to the north, including Duncan, Drummond, Pattle, Robert and Money Islands; the Amphitrites to the north-east, including Woody Island and Rocky Island. The Paracels are not permanently inhabited and anyway are almost barren. Only two islands have springs yielding brackish water, which fishermen from Hainan and Annam find drinkable if boiled. Towards the end of the north monsoon, flotillas of Annamese and (mostly) Chinese fishermen set out for the Paracels, which remain their operational base until October. On land they have primitive huts used for storing provisions, and for salting and drying fish. When their activities are finished, they take advantage of the end of the south-west monsoon to return home. In winter the Paracels are deserted. The anchorage they offer would not be suitable during the north-east monsoon. The islands are low-lying, and their roadsteads are traversed by violent currents, as well as being too deep (40 metres or more), too exposed and of poor quality (coral seabed). While they might offer temporary refuge from a violent wind from a particular direction, they cannot provide permanent shelter. Sailors avoid them in the season of typhoons and fogs, and in winter. Ship captains make it their business to identify them, and then only by day. In calm, clear weather they are a known landmark.

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There have been many shipwrecks: the Mariana (a German vessel) on Bombay Reef in 1891, the Bellona (a German vessel) on North Reef in 1895 and the Imegu Maru, (a Japanese vessel) on the Amphitrites in 1896, the latter two giving rise to noteworthy disputes. The Bellona and the Imegu Maru were both carrying cargoes of copper insured with British companies. A vain attempt was made to salvage the cargoes. Ships expensively chartered for that very purpose were dogged by bad weather and had to return to Hong Kong with very little to show. The wrecks were abandoned. Chinese Fishermen in light craft then began systematically to loot the wrecked ships. Through their shipowners in Hoihow, they offered to sell the looted copper for half its value. The insurance companies refused, and since part of the copper had already been landed at Hainan, at their behest the Minister of Great Britain in Peking and the Consul in Hoihow intervened, demanding that the copper be impounded, stating that the mandarins of Hainan had been informed of the wrecks as soon as they occurred, that they should have taken precautions to prevent the looting, and that they should be held responsible. The mandarins protested, claiming that the Paracels were abandoned islands which belonged no more to China than they did to Annam, that they were not administratively attached to any district of Hainan and that no special authority was responsible for policing them. Until 1908-1909, it seems that no power manifested any intention of annexing the Paracel Islands. The Germans made systematic hydrographic surveys of the area between 1881 and 1884. It was not possible to infer their true intentions from such operations, which they carried out in general in almost all corners of China's seas (Hainan, Pakhoi, Weitanao), as far north as Amoy and Foochow. On various occasions the British press urged the British Government to build a lighthouse on one of the islands in the Paracels. However, it seems that this was solely in the interests of navigation. In December 1898, the Ministry of the Colonies transmitted to the Governor General a request for information it had received from a journalist, Mr N. Chabrier, who wished to set up stores in the Paracels to supply fishermen. On the advice of Mr Pichon, France's Minister in Peking, in June 1899 Mr Doumer informed the Ministry that the commercial venture planned by Mr Chabrier stood no chance of success. However, the Governor General of Indochina felt that France might be well-advised to prevent another power from becoming established in the Paracels, in view of their situation. With

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this in mind, he advocated building a lighthouse for the purpose of justifying any subsequent claim to sovereignty on our part. Nothing came of the matter, and the archives of the Government General contain no reply from either of the two Ministries concerned, nor do they contain any document showing that either metropolitan France or the colony has since shown any interest in the question of the Paracels. In 1907, in the wake of Japan's claims to the Pratas Island group, the Viceroy of Canton became exercised with claiming ownership of all the groups of islands along the coast of the Celestial Empire, which might in some way be considered part of that Empire. They included the Paracels. In April 1909, an official Chinese expedition explored the Paracels and concluded that it would be possible to mine the rich deposits of phosphates the expedition claimed to have identified. In June 1909 a second expedition was sent. It formally raised the Chinese flag, firing a 21-round salute on two of the larger islands. Having thus taken possession of the whole of the Paracels on behalf of its Government, the expedition returned home some days later, apparently less enthusiastic than its predecessor, having found nothing but rocks, sand, some brackish wells and a torrid, unhealthy climate. Following these various displays, our Consul in Canton, Mr Beauvais, asked the Minister for Foreign Affairs for advice on what to do in this situation: whether to prevent the Chinese Government from taking effective possession of this group of reefs, or else 'to turn a blind eye' so as not to stir up Chinese 'nationalism'. It appears that Mr Beauvais never received a reply, at least not to our knowledge. I must add that, at approximately the same time, Mr Boissonnas suggested in one of his letters that any French concession at all to the Chinese Government, saving that Government's face, would make it easier to settle the matter of compensation for the Tunnam railway. In such a situation, the abandonment by France of all rights to ownership of the Paracels might seem like the compensation demanded. Since that time, there has been no further mention of the Paracel Islands, until recently under the following circumstances: in a letter dated 20 September 1920, a Japanese shipping company, Mitsui Bussan Kaisha, felt it necessary to ask the Commander of the Navy in Indochina, Captain Remy, whether the Paracel Islands were French possessions. In explanation, the company claimed that it intended to mine minerals having a phosphoric acid content of 32 per cent which it had identified on the islands. A few days later, on 24 September 1920, Captain Remy saw fit to reply:

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'There is no paper in the official documents of the Navy allowing the nationality of the Paracel Islands to be determined. Nevertheless, I think I can assure you that they are not a French possession, but this assertion is based solely on my personal memories and I cannot provide you with any conclusive document in support of this.' From a letter addressed by the Commander of the Navy to the Government General, dated 24 January 1921, it appears that, having failed to find any information in the naval records establishing the nationality of the Paracel Islands, the Commander of the Navy had turned to the Governor of Cochin China, who reportedly had the matter investigated in his own archives and in those of the Government General to no avail: 'Deeming the question interesting, the Governor of Cochin China requested me to raise it directly with the Ministry of the Navy.' This explains the following cables: - No. 206 of 28 September 1920 Navy Saigon to Navy Paris ((Question having been raised and investigations Indochina unfruitful please advise whether nationality Paracel Islands duly established pursuant to what document. 1100/28/29)); - No. 569 of 23 January 1921 Navy Paris to Navy Saigon ((Your 206 - Chinese claimed ownership of Paracel Islands in 1909 only information found so far. Advise origin and purpose of this question 1830/21/1)). It must be said that there is no document in the Department of Political and Indigenous Affairs either from the Governor of Cochin China or the Commander of the Navy referring to any request for information on the Paracel Islands, despite the fact that the Department held full records on the question since the present note has been drawn up solely on the basis of the documents in its archives. For whatever reason, the Government General was not directly confronted with the question until a telegram of 1 February 1921 from the Ministry of the Colonies. The telegram referred to a short paragraph which had appeared in the newspaper Europe Nouvelle of 2 January 1921, reading as follows: 'Approximately 300 kilometres from the coast of Annam lies a group of deserted rocks, the Paracel Islands. Recently the Consul of Japan wrote to the Government of Indochina to ask whether France claimed ownership of the islands. The reply was negative. Did the official who drafted the reply not realize that one submarine base in the Paracel Islands would be sufficient to blockade the entire coastline of Indochina?' Clearly, Europe Nouvelle was referring to Captain Remy's reply to the Mitsui Bussan Kaisha Company. Moreover this Government General has

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never had occasion to reply to any request whatsoever for information on the matter, either from a Japanese consular or diplomatic authority, or from any other source. The inquiry into the matter, immediately ordered by the Governor General, had barely begun when a letter was received from Mr Beauvais, Consul General in Canton, dated 6 April 1921, informing the Governor General that: ((By an order No. 831 dated 30 March 1921 and published in the Official Gazette of Kwangtung (No, 2619 of 2 April 1921), the civilian Governor of Kwangtung announced that, at a meeting on 11 March 1921, the heads of the military Government of the south had decided administratively to incorporate the Paracels into the sub-prefecture of Yai Hien, Hainan Island)). In view of the previous events we reported above, it may well be possible that there is no connection between the recent decision of the Canton Government - ratification of the act done in June 1909 - and Captain Remy's above-mentioned reply to the Japanese shipping company, nor between the Government's decision and the article in Europe Nouvelle referred to in the Ministry's telegram of 10 February. However, one cannot help but compare the dates, and it is not beyond the bounds of possibility that the Canton Government's attention may have been more particularly alerted to this matter, by the opinion of diplomats at the Legation of China, or by eminent Chinese nationals having read Europe Nouvelle in Paris, or others, no doubt interested parties, who were aware of Captain Remy's reply to the Mitsui Bussan Kaisha Company.1 This being so, it seems regrettable that the Commander of the Navy saw fit to reply, albeit in a personal capacity, to a foreign shipping company on matters whose very nature should have warranted silence or at least more cautious reservations, and did so without first consulting the Government General, for whom the claimed authority of the Governor of Cochin China could in no event serve as substitute in such circumstances. Furthermore, if some surprise is also warranted at the fact that the Ministry of the Navy was consulted on a dispute concerning French nationality, it is even more surprising to note that that Ministry, when approached, did not see fit to bring the matter to the attention of the relevant

1

We read today in a report From Mr Beauvais that the representative of Mitsui Bussan Kaisha in Canton has sent a personal letter of congratulation to Dr Sun Yat-Sen on his recent elevation to the Presidency of the Republic of Kwangtung. The Company, at least in the person of its representative in Canton, appears to enjoy fairly close relations with the most eminent personage in the new Government.

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department of the Ministry of Foreign Affairs, or, concerning as it did land close to one of our major possessions, the Ministry of the Colonies. Hanoi, 6 May 1921

ANNEX 13 Note dated 4 May 1909 from Mr Beauvais, Consulate of France in Canton Re: The Paracel Islands The difficulties which arose over the Pratas Island group drew the Chinese Government's attention to the various groups of islands along the coasts of the Celestial Empire, particularly the Paracels archipelago. To counter the possibility of a similar attempt on these islands, the Viceroy of the Two Kwangs sent an expedition comprising three officers to the Paracels at the end of last March. In the report submitted on their return, the three envoys stated that they had identified 15 islands, the largest ones being five to six miles long, and that there were no Europeans in the archipelago. However there were any number of clearly visible traces of the passage of foreigners at various times. Names had been carved in many places, including on the trunks of coconut palms. Since the Viceroy had originally been told that the Japanese and the Germans had visited the islands, the envoys closely questioned the Chinese fishermen living in flimsy huts, the only people they found in the normally deserted islands. The fishermen said they were aware of the passage of foreigners in the area, but that they were to be found in southern Hainan. The officers did indeed find proof that an expedition consisting of two Germans and one Japanese, together with their Malay servants, had travelled around the southern part of the large island, and had prospected for deposits worth mining, as evidenced by the many boreholes they left in their wake. On reading the report, the Viceroy contrived a plan to entrust the exploitation of the islands to a syndicate of Chinese merchants: to this end, he instructed the Taotais Wang p'ing ngen and Li Che-suin to conduct a new survey of the islands, and a fresh voyage to the Paracels is about to be made by the Chinese authorities. In this connection, our agent states that the Paracels have a certain importance for France: lying halfway between Saigon and Hong Kong, they pose a major threat to shipping and a lighthouse may prove necessary. The islands are also visited by Annamese and Chinese fishermen, who halt there during their fishing trips for a perfunctory preparation of their catch. Bloody fights break out on such occasions between fishermen of the two countries. Mr Beauvais contends that France has as many rights to the islands as China and that it would be easy for us to find arguments to support our

198 Annex 13

claims. However, should the game not be worth the candle, it would be preferable, in his view, to turn a blind eye, since any intervention on our part might lead to a fresh wave of nationalist feeling in the population, more damaging to us than the possession of the Paracel Islands would be useful./. (Signed) Beauvais

ANNEX 14 Letter of 6 October 1921, from the official in charge of the Consulate of France in Canton to the President du Conseil, Minister for Foreign Affairs No. 76 Re: The Paracel Islands I have the honour to advise you of the content of a fresh order published in the Official Gazette of Kwangtung dated 4 October, concerning the concession for the exploitation of the Paracels and addressed by the civilian Governor to the sub-prefect of Ch'ang Kiang As I stated in my report No. 74 of 30 September, Mr Ho Jouei-Nien, the holder of the concession for the islands, travelled to the Paracels on a study voyage. On passing through Ch'ang Kiang, he noted the existence of an unworked island named Feou-Choei-Cheou ( ) lying very close to this sub-prefecture. Immediately on his return to Canton he applied for the concession for the island, to enable him to work it in conjunction with the Paracels. The civilian Governor approved this application. Incidentally, I must advise you, for information only and without in any way being able to vouch for their veracity, of the recent allegations in some newspapers on the subject of the concession for these islands. From articles and Sin Min Kouo Pao published in Min Yi Pao , it would appear that Mr Ho Jouei-Nien is nothing more than a ligurehead and that the real founders and beneficiaries of the company set up to exploit the resources of the Paracels are none other than Japanese./. (Signed) Tulasne

ANNEX 15 Letter dated 4 May 1909 from Mr Beauvais, Consul of France in Canton, to the Minister for Foreign Affairs, Paris Re: The Paracel Islands As I informed you at the end of my last report (No. 86 of 1 May 1909) on the Pratas Island group, this matter drew the attention of the Chinese Government to the various groups of islands along the coasts of the Celestial Empire, islands which to some extent may be considered part of that Empire. These islands include the Paracels archipelago. On 26 and 31 March, the Chinese press reported that a European gunboat had recently sailed the length of the Si cha Islands, , which is the Chinese name for the Paracels. It was also reported that the Viceroy of the Two Kwangs, fearing that an attempt might be made on the islands similar to the Japanese attempt to claim the Pratas Island group, had just sent three officers on a mission there, Wang Jen-t'ang, , Lin Kouo Siang, , and Ou King Yong, . The three envoys embarked on belonging to the customs service and used the cruiser K'ai pan, for many years on surveillance duties off the coasts of southern China, its crew having a thorough knowledge of the seas around Hainan and the Gulf of Tonkin. On 15 April, the mission returned from its explorations and arrived in Hong Kong, where it caused wonder in the local population by exhibiting 20 or so enormous turtles brought back from these deserted islands. By 19 April, the Viceroy's envoys had already submitted their report. They had identified 15 islands, the largest ones being five to six miles long, and the smallest just two miles long, falling into two groups, east and west, comprising eight and seven islands respectively. On each of the 15 islands, lying at a distance of approximately 145 miles from Ling chouei hien , and 150 miles from Yu lin kang Bay in Hainan, there was a small pagoda, its walls fashioned from pieces of coral, and the roof from sea shells. The seven islands in the western group were covered with coconut palms. The water was brackish; the envoys, who brought the Viceroy back a map of the archipelago, reckoned that salt production could be successfully undertaken there.

Annex 15 201

The authors of the report noted that there were no Europeans in the archipelago. However there were any number of clearly visible traces of the passage of foreigners at various times. Names had been carved in many places, including on the trunks of coconut palms. Since the Viceroy had originally been told that the Japanese and the Germans had visited the islands, the delegates closely questioned the Chinese fishermen living in flimsy huts, the only people they found in the normally deserted islands. The fishermen said they were aware of the passage of foreigners in the area, but that they were to be found in southern Hainan. The officers did indeed find proof that an expedition consisting of two Germans and one Japanese, together with their Malay servants, had travelled around the southern part of the large island, and had prospected for deposits worth mining, as evidenced by the many boreholes they left in their wake, and that it seemed to have done a lot of work. This was, of course, the expedition which my colleague in Hoihow, Mr Hauchecorne, recently discussed with you. On reading the reports, the Viceroy of the Two Kwangs said that he wished to have the Paracels surveyed as accurately as possible and to transport a number of Chinese families there in order to collect phosphates, coral and other sea produce, which his emissaries assured him were found there in extreme abundance. It was the idea of His Excellency Chang that warships would visit at frequent, regular intervals, thus averting any recurrence of incidents similar to the recent events involving the Pratas Islands. As the Viceroy's intentions became clearer, and his projects took shape, he had the idea of entrusting the development of these islands, which he had just taken back into the fold of the Celestial Empire, to a syndicate of Chinese merchants. Enclosed please find the text of the orders which he gave the Taotais Wang p'ing ngen and Li Che-suin. These men are to make a fresh, detailed inspection, and a new voyage to the Paracels by the Chinese authorities is about to take place. On 3 May, it was announced that the Viceroy of the Two Kwangs had borrowed the cruiser Yuan k'ai from a colleague, the Viceroy of Min Cheu, at Foochow, and that Admiral Li had been requested to provide the explorers with all possible assistance. I was on the point of telegraphing a brief outline of the situation to you. However, I refrained from doing so, recalling that in 1898, during my time in charge of the Vice Consulate of Hoihow, you requested from that post as much information as possible on the Paracels and on any objection

202 Annex 15

which the Chinese Government might have to their occupation. Mr Kahn, the incumbent, answered your questions, which, if my memory serves me well, you transmitted in code for greater security. The French Government having subsequently given no sign whatsoever of embarking on the practical implementation of the plans which your above-mentioned letter appeared to indicate, I did not feel it proper to use telegraphy to inform you of a question in which the Ministry appeared to have lost interest for 11 years. Nonetheless, the Paracels are of some importance for France: lying halfway between Saigon and Hong Kong, they pose a major threat to shipping and may need a lighthouse. I have heard it said that we once had this project in mind but drew back in view of the expenditure entailed. Moreover, since it is impossible to land on the islands during the north-east monsoon, it would have been necessary to abandon the lighthouse keepers to their fate for all that time. However, these islands, equidistant from Annam and Hainan, on the same parallel as Tourane, are also visited by Annamese and Chinese fishermen, who halt there during their fishing trips for a perfunctory preparation of their catch. Bloody fights sometimes break out on such occasions between fishermen from the two countries. Some of them find it much easier to steal from those who have taken the trouble to catch their cargoes of fish. Moreover, since the Annamese are in the habit of taking their wives and children with them, when our proteges come off worst in the fight, the women and children are added to the stolen cargo and sold by the Chinese, along with the cargo, in the ports of the Hainan coast, where it is not unusual to encounter them. In my opinion, France has as many rights to the islands as China. Yet precisely at the time you requested information on the intentions of the Chinese Government vis-a-vis the Paracels, an incident occurred which elicited from the Chinese a peremptory denial of ownership. A steamship, a Japanese vessel I believe, carrying a cargo of copper ingots was wrecked in the Paracels. The vessel being abandoned by its owners, the insurance companies attempted to salvage the cargo. However, when they arrived at the scene, Chinese fishermen had already taken care of the salvage and the copper had been removed. Evidence later emerged that the copper had been taken to Hainan, and the insurance companies were able to obtain receipts for the import duties levied on the ingots by Chinese customs authorities on the island. That was enough for Mr O'Brien Butler, the then Consul of Great Britain in Hoihow, recently appointed Consul General of His Britannic Majesty in Yunnansen, who lodged a request for compensation. The Chinese

Annex15 203 Government rejected this, precisely on the grounds that the Paracels were not part of the Chinese Empire. It would therefore seem that, were it in our interest to prevent the Chinese Government from seizing this group of reefs, we could perhaps, with a little research, easily find arguments clearly demonstrating our right as well as irrefutable evidence of it. However, should the game not be worth the candle, it would perhaps be preferable, all things considered, to turn a blind eye, since any intervention on our part might lead to a fresh wave of nationalist feeling in the population, more damaging to us than the possession of the Paracel Islands would be useful. I trust you will advise me of any steps you feel I should take on this matter./. (Signed) Beauvais

ANNEX 16 Letter of 18 April 1921 from the Minister for the Colonies to the President du Conseil, Minister for Foreign Affairs Re: The Paracel Islands Further to your letter No. 441 dated 26 May 1921, I have the honour to enclose herewith for your information a copy of a letter the Governor General of Indochina has just sent me concerning the Paracel Islands. Appended to this letter, which contains all the requisite information on the short paragraph published in L'Europe Nouvelle, is a Note prepared by the Government General of Indochina. The Note gives the fullest possible account of the question of the Paracel Islands, including geographical and historical relations with Indochina and the known diplomatic background to the current state of affairs. I would particularly draw your attention to the idea mentioned by Mr Long on the last page of his letter, to the effect that 'It would perhaps not be excessive, in exchange for official recognition that the Paracels are Chinese, to request a formal commitment from the sovereign Government never to set up a military or naval base there and to install no facilities to that end.' I would much welcome your opinion on this suggestion. As for the regrettable consequences of Captain Remy's reply of 24 September last to an inquiry made by the general agent in Saigon of the Japanese shipping company Mitsui Bussan Kaisha Limited, I did not feel I should approach the Ministry of the Navy about this before ascertaining your own views on the matter. I would be grateful if you could return the enclosed documents once you have perused them./. (Signed) Illegible

ANNEX 17 Letter dated 26 December 1927 from the Acting Governor General of Indochina, Hanoi, to the Minister for the Colonies, Paris I have the honour to inform you that Mr Kurosawa, Consul General of Japan, asked the Head of the Foreign Relations Department of the Government General, during an interview, whether he could give him any information, 'in a purely personal capacity', on the territorial status of several groups of small islands and reefs lying in an area of the China Sea off the coast of Borneo and Palawan, between latitude 7° and 12° and longitude 117° and 118°. The names of the main islands concerned are: Trident Reef, Danger Reef, Thi Tu Island, Loai Ta Reef, Tizard Reef, Discovery Reef, Fiery Cross, London Reefs, Storm Island, Amboyna Cay, Rifleman Bank, Ardasier Bank, Swallow Reef. Mr Kurosawa said that the three groups of islands and reefs off the coast of Hainan Island and the coast of Annam, known as the Paracels, lay outside the delimited quadrilateral and were of no interest to the Japanese Government. On the other hand, Mr Kurosawa wished to know whether France or Great Britain, or more probably America (owing to the proximity of the large island of Palawan, forming part of the Philippines archipelago) might claim rights of sovereignty or rights of first occupant in the event of any question as to the territorial status of these uninhabited reefs and islands, which together make up an area particularly dangerous for shipping, and on which only a few Chinese fishermen or Japanese nationals mining guano venture to set foot. It would seem that France has never voiced any claim to these islands, which belong more logically to the Indonesian archipelago than to the Indochinese peninsula. There is no mention on any chart of the territorial dependency of these islands. Mr Kurosawa had in his possession a long letter from his Government and a Japanese nautical chart on which the zone concerned had been carefully marked. There is no doubt that the question put by the Japanese Consul General would be of great interest to the British, American and Dutch authorities. It betrays certain ambitions which cannot be a matter of indifference to our

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Ministry of the Colonies, Ministry of Foreign Affairs and Ministry of the Navy. You will doubtless see fit to inform the latter two Ministries of the above inquiry./. (Signed) Pasquier

ANNEX 18 Note dated 8 March 1928 from Mr Bourgouin Re: Japanese claims to the islands of the China Sea According to Nautical Instructions (China Seas, pages 612 et seq.), the group of islets and reefs to which Mr Kurosawa referred in his inquiry to Hanoi comprises a vast area of coral shoals and outcrops which are separated by trenches over 1,000 metres deep, and over which the sea breaks dangerously in bad weather. Most of these reefs are covered by three to four metres of water even at low tide. Some just break the surface, having either a lagoon or an expanse of sand in the centre. Only three islands, Itu Aba Island (Tizard Bank), Loai Ta Island and Thi Tu Island, protrude slightly above the water and have sparse vegetation (bushes, coconut palms); they are circular in shape with a diameter of 300 to 500 metres; two of them have wells. Overall, the area has the reputation of being dangerous ground for shipping, owing to the poor visibility of the shoals, very few of which are marked or buoyed, such markers as there are being rudimentary. The shipping routes give them a wide berth, passing on the south-east flank, in the corridor which separates this area from Palawan Island. The only remotely detailed observations were made at the end of the last century by the British vessel Rifleman, which took soundings and noted some coordinates, not without encountering a whole collection of wrecks washed onto the shoals by the currents. The area is now visited only by a few Chinese fishermen from Hainan, who find an abundance of turtles and sea cucumbers there; it appears that some of them built temporary shelters, most of them now destroyed, on the above-mentioned islands. No trace of any document relating to the territorial situation of the islands has been found in the Ministry's archives. However it should be noted that the quadrilateral to which Mr Kurosawa refers overlaps the territorial waters and the dependent territory of the Philippines level with Barobao Island, the southernmost land belonging to the Philippines. The delimitation of the Philippines under Article III of the Treaty of Paris of 10 December 1898 placed under American rule the area between longitude 116° and 117° east of Greenwich, and between latitude 7°40' and 9° north. Strictly according to the details given by Mr Kurosawa, the Japanese claims to the area would totally conflict with the rights of

208 Annex 18

sovereignty granted to the United States. It may be supposed, more realistically, that they stop at longitude 115° or 116° east of Greenwich, which would already bring the Japanese very close to the southern islands of the Philippines and to the immediate vicinity of the Palawan passage. In any event, the islands in question belong neither politically nor geographically to the coastline of Annam, being separated from this coast by an unbroken ocean trench 1,000 to 2,000 metres deep. Similarly, in geographical terms they are separated from Palawan Island by an ocean trench where the sounding line reached a depth of almost 3,000 metres. It therefore seems that France, for its part, has no need to worry about the mtentions revealed by Mr Kurosawa's inquiry, especially if, as Mr Kurosawa assured us, the Japanese Government no longer has any interest in the Paracels archipelago, where we would be more interested in maintaining the status quo. However, this loss of interest perhaps applies only at the official level, since information gleaned by the Consul of France in Hoihow early in 1925 makes it clear that Japanese smugglers are still active in the archipelago. Nevertheless, it cannot be denied that, in the event of war, any exercise by Japan of a right of surveillance in the region concerned might constitute a threat to the security of maritime communications between the islands of the various south-east Asian archipelagos and the Chinese or American ports on the China Sea./.

ANNEX 19 Note dated 26 November 1928, addressed to the Under-Directorate for Asia and Oceania Re: Spratly or Storm Island The first step is to know the exact terms of the reply to the Japanese inquiry at the beginning of 1928. The granting by the French State of a permit to prospect for mineral deposits is an act of sovereignty, an act which cannot be performed if the island in question already belongs to or is claimed by some other power. If the island is at present terra nullius, the granting of a permit to prospect, followed by actual operations undertaken by the holder of the concession, and accompanied by any manifestation whatsoever of continuous occupation by the French State (visits by warships, flag, orders issued by the police) would be the kind of act establishing the sovereignty of France over the island in question. The matter should of course be examined and settled, in consultation with the Ministries of the Navy and the Colonies. The eventual solution might well also be applied to all or some of the other islands in the same group./. (Signed) illegible

ANNEX 20

Letter No. 2276, dated 17 December 1928, from the Acting Governor General of Indochina, Hanoi, to the Minister for the Colonies, Paris Re: Rights of sovereignty over the Paracel Islands The New Phosphates Company of Tonkin has submitted an application to the Government General requesting permission to prospect for mineral deposits in one group of the Paracel Islands. The application was accompanied by four mineral prospecting declarations, together with the correct documents, on which the appropriate duties had been paid. This procedure, though the Company concerned does not know what the eventual legal outcome of its application might be, in a way confers virtual rights upon it, as it were, against the time when the question of the exercise of our sovereignty over the Paracels is settled positively. However, for the time being, any decision, prospecting or settlement must be entirely the responsibility of the individuals concerned. I have replied to the New Phosphates Company of Tonkin along these lines. In the present state of affairs, the plans it has submitted to me, like all those it previously submitted for that matter, are unlikely to come to anything. This is not the only instance of a challenge to French sovereignty over the islands surrounding the Indochinese Union. The present Governor of Hainan Island, General Gaston Hoang, recently planned to sail to the Paracels for the purpose of recognizing them as Chinese territory. I do not know whether the trip actually took place, but according to information supplied to me by Reverend Father Savina, a missionary priest who is General Hoang's trusted adviser as well as being our most loyal informant, it would take very little for the intentions of the Governor of Hainan to be put into practice, spurred on by the ever-increasing megalomania of Chinese nationalism. It is therefore time for us to take the initiative and to assert rights which appear to be recognized both in historical documents and by geographical realities. I am in the process of having the Foreign Relations Department prepare a Note summarizing the various aspects of the Paracels question; however I would be most grateful if, pending the Note, you could provide some pointers to enable me to speed up decisions should the Chinese claims become more specific.

Annex 20 211

Your pointers should be seen against the background of the Japanese intentions which were the subject of our letter No. 1763 of 26 December 1927 and your reply No. 77 (Political Directorate) of 12 May 1928./. (Signed) R. Robin

ANNEX 21 Note No. 268, dated 26 February 1929, from the Minister for Foreign Affairs (Directorate for Asia and Oceania), Paris, to the Minister for the Colonies, Political Directorate, Third Bureau, Paris Re: Right of sovereignty over the Paracel Islands By a letter - No. 252 - of 18 February, further to your letter to me of 11 January under the stamp of the Directorate for Economic Affairs, First Bureau, you sent me a copy of a letter from the Governor General of Indochina, No. 2276 of 17 December last, concerning the possible designs of the Chinese Government on the group of islands known as the Paracels. In that letter, the Indochinese administration now supports the view that France has sovereignty over the archipelago and to that end puts forward historical arguments which it intends to develop in a Note to be sent to you shortly. As you point out, the Indochinese administration thus appears to advocate, in respect of the Paracels, a position contrary to that decided upon by the French Government in 1921, and which apparently entailed recognizing Chinese sovereignty over the archipelago, subject to the application of the Franco-Chinese Agreements of 2 and 15 March 1897, and of 4 and 10 April 1898. The letter from the Governor General of Indochina dated 17 December 1928, enclosed with your above-mentioned letter - No. 252 - of 18 February, does not seem to me sufficiently explicit to warrant a change in that attitude. I would therefore be grateful if you would send me the note announced by Mr Robin at your earliest convenience and once I have it I shall ensure that I give the matter further consideration if necessary./.

ANNEX 22 Letter of 18 February 1929 from the Minister for the Navy, acting Minister for the Colonies, Paris, to the Minister for Foreign Affairs (Directorate for Political Affairs and Trade (Asia - Oceania)), Paris Re: Rights of sovereignty over the Paracel Islands Further to my letter No. 125 of 22 February 1929 concerning an application for a mining permit on Storm or Spratly Island, I have the honour to enclose, for your information, a copy of a further letter from the Governor General of Indochina, No. 2276 of 17 December last, this time on the possible designs of the Nationalist Chinese Government on the group of islands known as the Paracels. I would particularly draw your attention to the paragraph in this document where the acting Governor General of Indochina asks, as a matter of urgency, for pointers he could follow should the Chinese claims become more specific. In present circumstances, the Indochinese administration's desire for pointers dictating what its conduct should be, if necessary, is legitimate, and I feel it should be granted as soon as possible. Nonetheless, it will certainly not have escaped your notice that Mr Robin currently supports the argument of national sovereignty, based on historical documents which, so far as my Ministry is aware, have not been mentioned before. Quite the contrary, the position apparently agreed, in 1921 in particular, was to recognize Chinese rights to the islands 'under certain conditions of security and non-cession'. Pending receipt of the background note announced by Mr Robin, it would now seem that any guidelines issued to the Indochinese Government can now only be a matter of wait and see, unless a summary of the arguments of the local administration is requested forthwith by cable and received by the same means. I would be most grateful to have your views on this matter at your earliest convenience, which will enable me, with your full consent, to furnish the Governor General of Indochina with the pointers he requests as a matter of urgency. P.S. As I close this letter, the Ministry has received a report from the Governor General of Indochina on the political and economic situation in China. The following passage in the report relates precisely to the above

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question, apparently substantiating the view that the historical rights referred to several times by Mr Robin relate to the Kingdom of Annam: (...) 'General Gaston Hoang had planned to visit the Paracels, no doubt with the intention of asserting Chinese sovereignty there. Annam however possesses historical rights over this group of uninhabited islands which are much less open to question than any Nationalist China might claim, and France, which has a duty to safeguard the integrity of the kingdom under its protection, would do well not to allow itself to be taken by surprise by the fait accompli of Chinese possession which it would no doubt be obliged to accept.'./.

ANNEX 23 Coded telegram dated 3 April 1929, from the Governor General of Indochina, Saigon, to the Ministry of the Colonies, Paris 135 S - Reply 304 of 9 March. Having personally considered matter, do not share view expressed by my predecessor ad interim under No. 2276 of 17 December. In fact, situation has not changed appreciably since Note sent to your Ministry in 1921. New Note would only confirm this. Recent interest in Paracels by several business groups, in the form of actually rather vague applications for mining concessions and certain press articles, frankly does not seem to me to warrant fresh conclusions. In any event, it does not seem best moment at present to re-open any dispute on ownership of said islands. I therefore still think that, especially in present circumstances, the attitude adopted in 1921 and since maintained, in full agreement with the Ministry of Foreign Affairs, should be adhered to. (Signed) Pasquier

ANNEX 24

Official telegram of 14 March 1930, from the Governor General of Indochina, Hanoi, to the Ministry of the Colonies, Paris No. 501 Reference your letter 184 of 31 December last, to which reply sent by mail. Consul France Canton reports Legation Kwangtung Provincial Council adopted 14 February last resolution to mine guano deposits Paracel Islands at own expense. Remind you French Government has never officially recognized Chinese sovereignty over archipelago, nor definitively abandoned asserting historical and geographical rights Empire of Annam, which it had only considered formally relinquishing for reasons political expediency and in exchange guarantees re non-fortification and non-cession archipelago to foreign powers. Failing such agreement, and question remaining as indicated in my cable No. 135 of 3 April last, we cannot remain indifferent to fresh assertion sovereignty by Chinese authorities. Please inform diplomatic services./. (Signed) Pasquier (Certified accurate)

A NNEX 25 Letter of 28 July 1930 from Mr Wilden, Minister Plenipotentiary of the French Republic in China, to Mr A. Briand, Minister for Foreign Affairs No. 350 Rights of France over the Paracel Islands By your telegram No. 113 of 6 June last, Your Excellency informed me that the Ministry of the Colonies, reversing its previous position, was preparing to claim sovereignty over the Paracels for the benefit of Annam and asked my opinion on the matter. By its telegrams No. 117 and No. 239 dated, respectively, 20 March and 27 May last, this Legation has stated its views on the matter. While France has never officially recognized China's rights over the archipelago, the fact nevertheless remains that we have deliberately not lodged any protest at the acts by which that country, in its endeavour periodically to interrupt the prescription which could be invoked against it, has for some years sought to make plain that it considers the Paracels as dependencies of its territory and is attempting to confront us with a fait accompli./.

ANNEX 26 Letter No. 1512-A.Ex dated 18 October 1930 from the Governor General of Indochina, Hanoi, to the Minister for the Colonies, Paris Further to your telegram 1164 of 29 August and your communication 149 of 1 September last, I have the honour to enclose herewith the information on the Paracel Islands referred to in my telegram 1343 of 13 August, and which you requested of me on 23 July, further to an inquiry from the Minister for Foreign Affairs. As stated in my above-mentioned telegram 1343, on receipt of your instructions I set about obtaining as soon as possible, from the services of this Government General and from the consular posts concerned, all the documents which might provide a detailed answer to the three questions put by the Quai d'Orsay, which you forwarded to me in your 1021. In reply to the first of these questions, please find enclosed certified copies of the documents traced by Mr Le Fol in the archives of the Residency and of the Hue court, as follows: 1. An excerpt from 'Dai Nam-Nhat-Thong-Chi', book 6, (Annals of the Annamese Government), written in characters with a translation into French. 2. An excerpt from 'Nam-Viet Dia-Du', volume 2, (a geographical work compiled under Minh Mang), written in characters with a translation into French. 3. An excerpt from 'Dai-Nam-Nhat-Thong-Chi' (a geographical work by Duy Tan), written in characters with a translation into French. These documents, to which I have appended four letters and four maps, are the only ones relating to the Paracels which it has been possible to trace in Hue. You will probably find, as I do, that they are sufficient to establish incontrovertibly that Annam took effective possession of the archipelago well before 1909, the date on which the Chinese appear first to have expressed their claims to sovereignty over the Paracels. Indeed, in reestablishing the Hoang-Sa Doi in 1816, Emperor Gia Long himself was merely reviving an old tradition. Under former Annamese dynasties, this doi travelled to the Paracels in the third month of each year, returning in the fifth month to offer the products collected on the islands for sale in the capital. The expedition ordered by his son Minh Mang is proof of a continuity of views within the Nguyen dynasty, a continuity which the Chinese Government would be hard put to lay claim to itself.

Annex 26 219

I must particularly emphasize the value of this documentation, which I feel would constitute our best argument in any diplomatic disputes with China. As for the other questions put by the Minister for Foreign Affairs, I have not been able to assemble such detailed documents as on the first one. Nevertheless, it should be possible to remedy this deficiency, partly by certain responses to my requests for information currently awaited from the Consulates in Hoihow, Pakhoi and Canton, and partly by means of records which my services are still trying to track down or which may be run to earth in the Ministry itself. Actually, it was at the instigation of the Ministry of the Colonies, following a report on the Paracels by the French Consul in Hoihow, that in 1898 Mr Paul Doumer, the then Governor General, commissioned a feasibility study on the construction of a lighthouse on one of the islands. The relevant records have not yet been traced at the Public Works Department. I have given instructions for a search to be made in the central archives of Indochina. It might even be possible to find copies in the archives of the Ministry, which probably received copies of them at the time. This construction project was not* subsequently abandoned. I enclose herewith a copy of a letter dated 14-9-1916 from the Head of the Public Works Department and accompanied by an engineer's report on this matter. These two officials saw fit to make a number of reservations on this matter concerning the validity of our rights. There is no reason to accept the assertions made by these technicians based on inaccurate knowledge of the matter from the diplomatic angle. Whatever the case, these documents prove that the French administration has never ceased to show interest in the archipelago. Incidentally, it would be easy to prove that the Paracels are still visited by French nationals. Annamese fishermen sometimes come here during their fishing trips for a perfunctory preparation of their catch. I think I should also add that a number of people representing French business interests in Indochina have contemplated exploiting the islands. I have duly informed you of applications for concessions sent to me on this subject. Please find enclosed a copy of a letter dated 14 August from the Director of the French and Colonial Finance Company concerning a planned expedition to gain a precise idea of what the resources in these islands are. As for the Ministry's third request, I would ask you kindly to refer to my above-mentioned letter No. 704, in which 1 gave an account of the looting of the wrecks of the Bellona and Huneji Maru in 1898. It is perhaps noteworthy that, the same year the Government General was concerned with the problem of how to guarantee the security of navigation in *

Sic.

220 Annex 26

the waters of the archipelago, the Chinese Government declared that it had lost interest in the Paracels, deserted islands which belonged no more to China than they did to Annam. It was not realized that an official confirmation of this reply to the British Consul in Canton would constitute a virtually watertight argument in support of our case. I put this interpretation of the matter to the French Minister in Peking, who by telegram of 18—8 last informed me that he was asking our Consul in Canton to question his British colleague on the subject. I shall not hesitate to let you know as soon as I find out. Meanwhile, I enclose herewith a copy of a telegram, No. 104, from Mr Eynard concerning the above-mentioned diplomatic incident. Please also find enclosed copies of two letters, Nos. 71 and 89, from the French Consulate in Hoihow containing some interesting views on how the Canton Government is pressing China's alleged rights to the Paracels, and a copy of letter No. 149 from the French Consulate in Hong Kong. Attached to the latter is a note on the Paracels by a British national, Mr Dowdal. Apart from the documentary interest of this note, which sets out the strategic value of the Paracels, the fact that its author spontaneously came to discuss with our Consul the results of his expedition seems indicative of the opinion in foreign circles in southern China on the merits of the Chinese Government's claims. This communication is interesting in the same way as the approach to this Government General by Japan in Hanoi, and which I drew to your attention by my above-mentioned letter No. 704. (Signed) Pasquier

ANNEX 27 Telegram of 4 July 1931 from the Ministry of the Colonies to the Government General [of Indochina] No. 680 Reply to your telegram 903 Here is summary consultation legal adviser (one word indecipherable) before Ministry of Foreign Affairs: Rights Annam, at beginning of the 18th century existed but very hard to predict outcome arbitration owing to absence for over a century. Also, documents confirm taking possession of Paracels by Annam mission 1909 and various displays since then by Chinese authorities. Arbitration can only focus on survival rights Annam in 1909. Legal position Hue could be strengthened by surveillance mission vessel Paracels archipelago, but this activity should avoid form taking possession and have appearance of simple exercise pre-existing sovereign rights. Cable your views ./. (Signed) Reynaud

ANNEX 28 Decree by the Governor General of Indochina The Governor General of Indochina Grand Officier de la Legion d'Honneur No. 3282 Having regard to the Decrees of 20 October 1911 laying down the powers of the Governor General and the financial and administrative organization of Indochina; Having regard to the Decree of 5 October 1936; Having regard to the Decree of 28 December 1931 regulating the allowances and benefits in kind and in cash; Having regard to Decree No. 156-SC of 15 June 1932 creating an administrative delegation in the Paracel Islands under the authority of Thua-thien Province (Annam) and named the Delegation of the Paracels; On the proposal of the Chief Resident of Annam: DECREES: Article 1. - Decree No. 156-SC of 15 June 1932 shall be amended as follows: Article 1. — Two administrative delegations shall be created in the Paracel Islands under Thua-thien Province (Annam) and named Delegation of the "Crescent and Dependencies" and "Amphitrite and Dependencies". The boundary between these two administrative districts shall be determined by the line of the 112th meridian, except where it intersects Vulladore Reef, which is wholly contained within the Delegation of the Crescent. Article 2. — The officials in charge of these Delegations in their capacity as Delegates of the Resident of France at Thua-thien shall reside on Pattle Island and Woody Island respectively. Article 3. — In this capacity, they shall each, to cover the costs of representation and tours of duty, be entitled to an annual allowance of 400 piastres (400$00) laid down in the Decree of 28 December 1934. This allowance shall be chargeable to the local budget of Annam, Section 12, Article 6, paragraph 3.

Annex 28 223

Article 2. — The Secretary General of the Government General of Indochina and the Chief Resident in Annam shall each, in so far as it concerns him, be responsible for the implementation of this Decree. Hanoi, 5 May 1939 (Signed) J. Brevie

ANNEX 29

Encoded telegram of 8 March 1929 Hanoi I have informed the Governor of Cochin China that, like you, I have no objection to awarding a mining research permit to the Tonkin Phosphates Company in the Spratly Islands, on the understanding that this permit is issued at the risks and perils of the parties concerned should this group of islands be validly claimed by some other power. Have therefore asked him to consider Spratly Islands as administratively attached to Baria and to accept declaration research subject to reservations spelled out above and inform Phosphates Company above decision, clearly stating those reservations. I have invited him to discuss this matter with the Commander of the Navy and to ask him to consider mission soon with an appropriate unit at his disposal for effective reconnaissance of the island. Also discussion with Commander Bonnelli during my forthcoming visit to Cochin China. I would ask you to keep diplomatic services informed of foregoing measures. After my talks with Senior Commander of troops Saigon, I shall contact you in due course with a view to informing, if appropriate, diplomatic services and Ministry of the Navy of any proposals ./. (Signed) Pasquier

ANNEX 30 Decree by the Governor of Cochin China (J. Krautheimer), Saigon, 21 December 1933 THE GOVERNOR OF COCHIN CHINA, Officier de la Legion d'Honneur Having regard to the Decree of 20 October 1911; Having regard to the Decree of 9 June 1922 for the reorganization of the Colonial Council of Cochin China and to the subsequent texts; Having regard to the Opinion published in the Official Gazette of the French Republic of 26 July 1933 by the Ministry of Foreign Affairs relating to the occupation of certain islands by French naval units; Having regard to letter No. 034, and letters No. 2243-AP of 24 August and 14 September 1933 from the Governor General concerning the annexation of the islands and islets in the Spratly or Storm group; Having regard to the deliberations of the Colonial Council dated 23 October 1933; Having heard the Conseil prive, DECREES: ARTICLE 1. - The island named Spratly and the islets named Amboyna Cay, Itu-Aba, Two Islands group, Loaito and Thi-tu which fall under it, situated in the China Sea, shall be attached to Baria Province. ARTICLE 2. - The Administrator, Head of Baria Province and the Head of the Land Registry and Topography Department shall be responsible, each in so far as it concerns him, for implementing this Decree. Saigon, 21 December 1933 (Signed) J. Krautheimer Certified true copy of the original Filed in the archives of the Conseil prive

ANNEX 31 Letter of 30 March 1932 from the Minister for National Defence (Navy) to the Minister for Foreign Affairs - Directorate for Political Affairs and Trade (Asia-Oceania) Re: Taking possession of the islands west of the Philippines By letter 110 of 27 February, you asked me to take possession of the islets and reefs situated between latitude 7° and 12° N and west of the triangular American zone of the Treaty of 10 December 1898. I have the honour to inform you that I am minded to take possession of these islands in order to prevent a foreign power from claiming sovereignty over them. This pre-emptive taking of possession cannot signify that I have the slightest intention of making use of this archipelago for military purposes. Please find enclosed with this letter a note from the Hydrographic Service describing the archipelago in question, which is composed of an unexplored part and a part which is better known. It is not possible to take possession of the unexplored part owing to the dangers to navigation in those waters. In the better-known part, the idea of taking possession of banks not permanently uncovered, such as Rifleman Bank and Ardasier Bank referred to in letter No. 242 of 27 February 1931 from the Minister for the Colonies, should be abandoned; in reality, such possession would be pointless and contrary to international law; it might serve as a precedent to foreign powers for the purpose of claiming fishing banks or banks adjacent to our coasts yet situated outside our territorial waters. Only islands which can be occupied should be taken possession of, in other words, those on which men can not only land but also sojourn; reefs, some of whose crowns are constantly above water, do not meet this condition. In my view it is not necessary to take possession of all the islands which can be occupied. The act of taking possession can have effect within a certain radius around the landing site; if 100 kilometres is accepted as the length of this radius, four landing sites (Nos. 1, 2, 3, and 3 A on the attached sketch, the first of which was occupied on 13 April 1930) would suffice for an affirmation of our sovereignty over virtually all the known part of the archipelago in question. The act of taking possession would be worded as follows:

'This... day of... 19... I the undersigned... have taken possession, on behalf of France, of... Island situated at... and of the islands or islets situated within a radius of one hundred kilometres from the point indicated above. (Signature) This record was also signed by the persons designated below' (Signatures) To effect an act of sovereignty over all the known part of the archipelago, it would also be necessary to land at points A and B in the sketch, but as these points do not lend themselves to occupation, they must not form the object of any taking of possession. The landing sites and what might be termed the radius of sovereignty were only given above by way of indication. It will be for the ship responsible for taking possession of the archipelago to land on all the islands which can be occupied and where it is feasible to perform this operation, in order to multiply the points of taking possession and to reduce the radius of sovereignty accordingly. You asked me to take possession of the archipelago as soon as possible. However, this operation needs to be carried out in very fine weather, which is most likely to occur in the period between the monsoons, in April and September, but as the atmosphere is sometimes disturbed in these waters by typhoons at the September period, it is feared that the operation planned cannot be carried out before April 1933. When I send a copy of this letter to the Commander of the Navy in Indochina, I shall ask him to arrange for the archipelago to be taken possession of as soon as he considers the atmospheric conditions favourable.

ANNEX 32 Note from the Ministry of Foreign Affairs, Directorate for Political Affairs and Trade, (Asia), 10 August 1940 Re: Spratly Islands The Spratly archipelago, in the China Sea, includes, to the south of Hainan Island and to the west of the coast of Annam, a number of islands and reefs, whose economic and perhaps also strategic value only appears to have become apparent at the end of the last century. At that time, Japanese fishermen endeavoured to mine the guano covering the uninhabited islands, but very soon abandoned the attempt. Annamese fishermen also put in various appearances and, after aerial reconnaissance exercises by the French Navy, it was realized that this archipelago could perhaps be used as a landing strip for planes, as a base for seaplanes and even as a refuelling stop for ships in the fleet. In fact, these islands were regarded as res nullius until 1930, when the Government General of Indochina and the French Navy began to show interest in the Spratlys. It was decided to incorporate the islands into the French Empire and the act of possession was duly effected by an advice-boat from our Navy. The French flag was raised on the main island. A commemorative boundary-marker containing the documents relating to the taking of possession was erected. This act of possession formed the object of a decree published in the 'Official Gazette' and attaching the Spratlys to an administrative district of Annam. Foreign powers were informed. Great Britain took formal note of the fact, despite having pointed out that the island had previously been visited by a British ship. Japan was the only country to raise difficulties about recognizing the legality of our act of possession and, alleging that there had been previous incursions by Japanese fishermen and a short-lived attempt to mine phosphates in the archipelago, invoked its titles of first occupant. Talks were initiated in both Tokyo and Paris regarding the Japanese claims. In the course of one of the discussions held at the Ministry between Mr Seto, Japanese Ambassador, and Mr Leger, in August 1934, it seemed that the Japanese Government was not digging its heels in and that the matter could be regarded as settled.

During the ensuing years, no effort was made, either by Indochina or by the French Navy, to give concrete form to our occupation, while Japanese fishermen continued to appear from time to time. On the outbreak of the Sino-Japanese War, in August 1937, the Japanese Navy immediately expressed its intention to extend its activity to the waters off southern China. It set a course for the Spratlys, and having arrived there, landed its men then took them off again. The response to the protest which our Ambassador was instructed to lodge in Tokyo was that the Japanese Government had never recognized the legitimacy of our possession of the archipelago. However, the British for their part reaffirmed their recognition of our sovereignty and proposed that we lease them a site which could be used as an air base. Our reply was that we would be developing such bases ourselves and that, as and when appropriate, would authorize British planes to use them. Subsequently, the British Ambassador supported his French colleague in his approaches to the Gaimusho* aimed at ensuring that our rights over the archipelago were respected. Being determined to gain a foothold in the Spratlys, the Japanese conceived the idea of setting up a company for the mining of guano and exploiting fishery products. The members of this company, who in reality were Formosan militia led by Japanese officers, set up camp and installed a radio station. Finally, to place themselves in a legal position on a par with ours, the Imperial Government published a decree under which the archipelago was annexed to the Japanese Empire and attached to the administrative district of Formosa. The protests which the French Ambassador was immediately asked to lodge with the Tokyo Government were dismissed out of hand. The Ministry of the Colonies, in agreement with the Ministry of Foreign Affairs, decided for its part to mark the French presence in the Spratlys and dispatched Annamese militia there, who were also installed in a camp, but who were to behave towards the Japanese like simple fishermen. They set up a radio station and were supplied by a cargo ship which periodically called in there from Annam. At the request of the Ministry, the Navy had a vessel, on a tour of duty in the South China Sea, put in at the Spratlys. There were moments of quite serious tension in the archipelago between the occupants of the French and Japanese camps. Despite the rebuffs they suffered, our representatives resolutely carried out their mission and, no doubt following instructions received from Tokyo, the Japanese grew more *

Gaimusho = Ministry of Foreign Affairs

230 Annex 32

courteous so that relations between the occupants of the archipelago eventually became correct if not actually cordial. In the diplomatic arena, the French Government, in its representations to the Japanese Government, invoked the Franco-Japanese Treaty of 1907, affirmed the legitimacy of its rights to the archipelago and, to prevent the conflict from turning sour, even considered putting the matter to international arbitration. The Japanese declined. Each of the Parties has doggedly maintained its position and the ambiguous situation of the Spratly Islands has so far not altered./.

ANNEX 33 Letter from General Juin, Chief of Staff of National Defence, to the Chairman of the Committee on Indochina, 7 October 1946 Cf: Letter 42/AS from the Ministry of Foreign Affairs transmitted under dispatch note 1048 LC of 20 September 194 [illegible] Re: Paracel Islands Thank you for sending me the letter quoted in reference from the Ministry of Foreign Affairs asking me to let you know my conclusions on the matter. There can be no question of establishing a military base in the Paracels; occupying them therefore has no positive military benefit for us. On the other hand, it is of the utmost importance for France to prevent any sign of occupation by a foreign power of the islands which command access to the future base of Cam-Ranh and dominate the sea route Cam-Ranh-CantonShanghai. If it transpires that the occupation of the Paracels leads to a resumption of the discussion on our rights of sovereignty, it will, with the force of the fait accompli, consolidate our position in the any future legal debate on this matter between France and China. (Signed) Juin

ANNEX 34 Confidential Report of 29 January 1947 on French naval mission to Pattle Island from Captain Hennequin, Commander, 8th division of advice-boats and Captain, advice-boat Commandant Duboc, to Rear Admiral, Commander of the Navy in Indochina References: Instruction N. 52/EMP/TS of 16 January 47 Message 63/EMP/TS of 20 January 47 Instruction N. 69 EMP/TS of 22 January 47 Instruction N. 33 EM 3 Mar. Ind of 23 January 47 Enclosures: Instructions from Major Delay, Deputy to Colonel in command Nhatrang sector, handed to head of detail party 1.-MOVEMENTS -

23 January 1330 H 24 January 1730 25 January 1100 26 January 1330 29 January 1830

Set sail from Saigon Docked in Nhatrang Sailed from Nhatrang Anchored at Pattle Island Set sail for Tourane.

2. - LANDING OF NATIVE GUARDS AND RE-EMBARKATION OF NAVAL DETACHMENT 26 January Weather fair - Wind NNE 1 to 2. Lighterage easy and tide favourable for coming alongside jetty. Landed personnel, with individual kit and weapons. Radio link established with Nhatrang at 1600 hours. Unloaded 10 tonnes of equipment and supplies. Towed a water container to the southern shore, together with the whaler to try it out. At nightfall, wind got up; squalls 27 January Fresh monsoon, squalls, choppy sea. Lighterage impossible. Link with land only with whaler. Detachment setting up camp. 28 January Monsoon dropped slightly. Whaler then launch put to sea.

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Whaler rowed ashore, southern beach. 12 casks transported one by one in hold. Slow but steady progress in choppy sea. Launch transported equipment and re-embarked naval detachment from jetty. 29 January Gradual improvement to fair weather. Transport operations completed. At 1600 short ceremony of hauling down the naval colours and hoisting the colours of the relief detachment. At 1630, Major Delay, Deputy to Colonel in command Nhatrang sector, on mission on board, having carried out a kit inspection and transmitted his instructions to head of detail party, this senior officer and myself left the island. On our departure, the detachment had 4,000 packs of iron rations and fresh water, including 2,430 packs of 'Pacific' rations. 3. - CURRENT SITUATION OF THE ISLAND a. - General situation The naval detachment reported that the situation had remained calm during its stay. There are some 15 Chinese living on the island where they earn their livelihood from fishing and collecting shells destined for China. Junks apparently call in to collect what they have caught. These Chinese seem harmless and are willing to lend a hand for a little food or simply in exchange for the right to pursue their activity. Nevertheless, they could be observers in the pay of the Chinese Government. Robert Island is deserted. On Money Island, there is only a handful of fishermen with sampans. b. - Material situation l) - The living quarters are dilapidated. The shell of the buildings has suffered damage from shells and machine-gun fire. The woodwork needs repairing. An assistant from the Aimed Forces Equipment Department has made a detailed examination. ll) - The water tanks seem to be in good condition. They have a total capacity of some 200 cubic metres. At present, they contain only 28 cubic metres of usable water. lll) - The two wells providing slightly brackish water are in working order. There are apparently also surface springs providing slightly brackish water.

234 Annex 34

4. - The lighthouse could easily be restored to working order. The tower needs re-pointing and painting. Repairs to ladder and upper safety railing. Repairs to gas piping and reconditioning of burner. 5. - The radio and meteorological station currently consists of only an empty building with no doors or windows. The shed for the meteorological instruments, which is empty, is still standing. There is no longer any radio equipment from the former station or any meteorological observation instruments. The two masts, 28 metres high, are in good condition. One of the shrouds is missing from one mast and three from the other. 6. - The maritime facilities need refurbishing but can still be used for docking of motorized craft the size of a launch from a large vessel subject to careful timing and observation of the tides (about 2 hours before to 2 hours after high tide). Masonry on the slipway: 120 metres. Gauge: 2 metres. The launching cradle and its carriage are in good condition. They permit the hauling up of a craft 15 metres in length, 2.4 metres in the beam and 1 metre draught (about 15 tonnes). The lighter Bourrasque which has run aground on the beach is holed, rotten and beyond repair. Its hauling winch is also broken. 4. - URGENT REPAIRS REQUIRED A cursory examination of the present condition of the various facilities suggests some initial steps that might be taken to maintain a force of some 30 men in occupation of the island. These steps are listed in order of priority: - repairs to guttering and drainpipes, - provision of a canvas water container with a capacity of 10 cubic metres enabling rapid shipment of drinking water, - repairs to woodwork in living quarters, - repairs to shrouds on radio masts, - repairs to rails on slipway, - construction of narrow-gauge railway, - structural repairs to buildings. 5. - MARITIME EQUIPMENT AND LINKS A station ship which could be hauled up the slipway (the solution opted for in 1938 incidentally) is all that could be supplied to Pattle Island, there being no anchorage sufficiently sheltered from the fresh winds which blow very frequently on the island.

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While the possibility of providing the island with a launch of about 15 tonnes which can be hauled up the slipway is under consideration, it would be useful as soon as possible to send a flat sampan to the island equipped with sail and outboard motor, which could easily be hauled up the slipway in its present condition. This craft would be adequate for showing the flag and for surveillance of the neighbouring atolls. In our view, fresh supplies to the island will ideally be required once per month, the amounts needed being about 10 tonnes of provisions and 10 tonnes of water. The supplier must have motorized craft in excellent condition and equipped with gear properly designed for hauling up in choppy seas. Fresh supplies ideally need to be delivered during periods when the high tide occurs by day. This period would seem to be the one close to the spring tides. 6. - HYDROGRAPHIC INFORMATION a) - ANCHORAGE The Commandant Duboc dropped anchor at 155 some 800 metres from the lighthouse, the depth of the sea at that point being 42 metres, on a seabed of sand and shells, with 4 lengths of chain in the water. The anchor held very well in a fresh wind. A good mooring mark is the following: proceed in a northerly direction towards the centre of the house to the right of the post of the pontoon and drop anchor when in sight of the rock visible at 306. At that moment, the distance from the east radio mast is 900 metres. b) - DOCKING Motorized craft can come alongside the slipway from 2 hours before to 2 hours after high tide, and can then beach on the shore visible between the coral. 7. - CONCLUSIONS Independently of all other considerations, it seems to us that the substantial facilities built on the island by the Government General and their present state of conservation warrant sufficient effort being made to see that this island remains a possession of Indochina. Regular operation of the lighthouse and the meteorological station would mean that our occupation could be seen - and to a far from negligible extent - as a form of international co-operation. This result, it would seem, could be achieved quite quickly without the need for great expenditure.

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The present detachment will soon be in a position to transmit a daily summary weather bulletin to Nhatrang and Tourane. Where deliveries of fresh supplies by sea are concerned, experience has shown that the landing of fresh water in casks is a very heavy burden for the supplier. These casks have to be delivered either by rowing boat or motorized craft. The detachment currently has a total of 65 such casks. Until such time as the water tanks are repaired and filled, a canvas water container with a capacity of 10 cubic metres needs to be delivered as soon as possible to the detachment occupying the island and kept there. On a different topic, we consider that command of the island should ideally be assigned to an officer from the regular army, young, dynamic, full of drive, with a basic knowledge of naval matters, having organizational ability and a pioneering spirit, as well as diplomacy. Some circumstances might entail skilful negotiations in which imagination and finesse, allied to firmness, would not go amiss. The island is an ideal spot climatically. Such a post would give an officer whose health has suffered from service in Indochina an opportunity to recover at the same time as performing a useful service to his country. (Signed) Hennequin

Annex 34 237

GUIDELINES ON CONDUCT REQUIRED While strictly carrying out the orders regarding defence, bloody incidents should be avoided. Display a great deal of tact, courtesy and amiability. Convince people that the island is French. Only use force as a last resort. Various circumstances could arise, such as: a) A unit from a foreign power could drop anchor off the island. 1. Immediately report this by radio to the Commander of Nhatrang sector, then Tourane. 2. Set the appropriate alarm procedures in motion. 3. Observe the vessel which has moored. 4. If a launch is put to sea and approaches the jetty, the head of the detail party should courteously greet the officer on reconnaissance and ask him for certain information: nationality, purpose of visit, where he hails from, etc. He will explain to him that the island is a French possession, offer him refreshment. But he will not allow men to disembark onto the jetty. He will not allow the officer to venture further onto the island. If the officer will not be persuaded, the Head of Detachment should stress the fact that the post is in constant radio contact with the Navy, that a cruiser is in these waters, that it has a sizeable complement of men, etc. In other words, bluff to prevent any incident. Keep the Commander informed. In no circumstances should the head of the detail party agree to board an apparently unfriendly foreign vessel. b) A number of light craft appear off the island As in the first case, report back. Set the appropriate alarm procedure in motion. Observe the movements of the craft. If the craft proceed towards the jetty, signal to the effect that only one craft is authorized to come alongside. Only permit a person of rank to alight from this craft. Greet him courteously, ask him for certain information: nationality, purpose of his mission, where he hails from, etc. Make him understand that the island is a French possession and that it is strongly defended. Do not permit anyone to venture further onto the island. If the officer insists, 'bluff for all you are worth': constant radio link with the Navy, cruiser

238 Annex 34

anticipated within a few hours, heavily armed, large complement of men, etc. NB: These instructions only cover important incidents. They are meant only as an illustration to indicate the spirit in which the mission assigned must be carried out. 28 January 1947 Major Delay

ANNEX 35 Telegram from Ministry of Foreign Affairs, Nanking, 8 March 1947 No. 319-320 I refer to my telegram No. 298 in clear sent by diplomatic bag. A further press article, announcing that two Chinese warships are to be dispatched to Woody Island, harks back to the 'instructions' which the Chinese Ambassador is said to have received from his Government with a view to 'negotiations' with the French Government regarding the case of the Paracel Islands. This information, like that contained in my communication referred to above, appears to be contradicted by the information given by the Director for Europe of the Wai Kiao Pou* to Mr Roux during a general discussion he had with him yesterday. Mr Yeh, having spontaneously broached the question of the Paracels, in fact drew my Counsellor's attention to the fact that the Wai Kiao Pou continued to be under strong pressure from (certain) Chinese departments to secure agreement from the French Government to withdraw the military personnel it has landed on Pattle Island. Yet at the same time, he confirmed to him that, according to the Chinese Government, this withdrawal was to precede any resumption of diplomatic talks aimed at an amicable settlement of the matter and at the conclusion of a special (joint) agreement. My colleague reiterated our position as set out by the Director for Asia of the Ministry of Foreign Affairs on 30 January (your telegram No. 99 in fine to the Counsellor of the Chinese Embassy) and he stressed the fact that the Wai Kiao Pou should give consideration to the formula which I have already suggested to him in accordance with the terms of your telegram No. 160 and which is acceptable to both parties./. (Signed) Meyrier Note from the Cipher Department Telegram No. 298 not yet reached the Cipher Department./.

*

Wai Kiao Pou = Ministry of Foreign Affairs

ANNEX 36 Wire from Agence France Presse, Nanking, of 31 May 1947 and telegram of 3 June 1947 FRANCO-CHINESE RELATIONS Nanking, 31 May 1947 The People's Political Council this morning adopted some 60 resolutions mostly marking a hardening of the Government's attitude and a more nationalistic stance. Among the main resolutions adopted was the immediate return of Macao to China and the withdrawal of French forces from the Paracel Islands, 'by force' if necessary. The Council also decided to protest to France at the discrimination allegedly suffered by Chinese nationals in Indochina. A motion for the return of Hong Kong to China was not adopted. The resolution relating to the withdrawal of all French forces from the Paracels states that China must protect its sovereign rights and step up the archipelago's defences. The Ministry of Foreign Affairs declined to comment on this decision by the People's Political Council. Both France and China are known to claim sovereignty over the Paracel Islands and to have dispatched troops there. France has proposed that the matter be put to arbitration by the International Court of Justice in The Hague but this proposal was not accepted by China./.

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TELEGRAM Nanking, 3 June 1947 I feel it my duty to transmit to you, for information, the following text of a motion on the Paracel Islands tabled on 31 May in the People's Political Council: 'In order to rebuild the Paracel Islands and strengthen the defence of our country, we call upon the Government to guarantee our sovereign rights with all its might, to precisely delimit our frontiers, to promote national defence and to reward the servants of China, who have placed all their energies at the service of recovering this territory'. As the account by the Agence France Presse correspondent in Nanking of this motion submitted to the People's Political Council, among 60 other motions relating to national defence and Chinese foreign policy, was partly inaccurate, I was anxious give you the exact text./. (Signed) Sivan

ANNEX 37 Telegram, Saigon, 25 January 1951 No. 153 to 155-Urgent Re: Your telegram No. 60 of 13 January. Firstly: French presence in Paracel Islands is still confined to Pattle Island, the only habitable island in the western group. Secondly: It cannot be certified that there is no Chinese occupation of Woody Island, the only habitable island in the eastern group. In fact, to avoid incidents with Chinese Governments, instructions issued, both to successive garrisons on Pattle Island and to naval forces, have always limited our action regarding the eastern group to mere reconnaissance and especially airborne missions, which were necessarily imprecise. Thirdly: Results of these reconnaissance missions as well as fact that a Chinese garrison could not subsist on Woody Island without periodic supplies which could not go unnoticed, suggest that this island has never been permanently occupied. On the other hand, seasonal fishermen from Hainan Island probably put into Woody Island for short stays. Fourthly: Pattle Island was reoccupied by a French garrison in late 1946. As approach to island by seasonal fishermen, now Communist in allegiance, could provoke incidents, it was decided in October 1950, in order to avoid any possible dispute with Peking Government, to station a wholly Vietnamese garrison on Pattle Island answerable to the Central Annam Government./. (Signed) Haussaire

ANNEX 38 Note from the Legal Department, Paris, 6 September 1946 Re: French sovereignty over the Paracels A. BACKGROUND TO THE PROBLEM The telegram from Admiral d'Argenlieu reports that a naval reconnaissance mission has been carried out in the Paracel Islands off Indochina, and that the French Navy intends to set up a duty station there. The Admiral asks what our rights over the Paracels are and what steps have been taken in the past to gain recognition of them. B. GEOGRAPHICAL AND HISTORICAL DATA a) Situation of the islands The Paracel Islands extend from longitude 110° 10' to 112°45' E. They lie 490 kilometres from Hue (Annam) and 350 kilometres from Yulinkiang, a port on the southern coast of the Chinese island of Hainan. The islands, some large and some small, are about 20 in number. Most of them are sandbanks, the others, about a dozen, are formed of rocks; eight are truly islands. For a long time, these islands appear to have only been frequented, and then intermittently, by fishermen from Annam or China taking turtles and coral. On one of them, Woody Island, a Japanese colony had settled, engaged in mining guano, and was reconnoitred by our advice-boat Savorgnan de Brazza. b) The historical rights of Annam The first reference to the Paracels appears to be in the annals of the Court of Hue, where it is stated that, in the year 1700, a company was set up to harvest the produce of the sea in the archipelago each year. This maritime activity continued, more or less intermittently. Then, in 1816, Emperor Gia Long decided to annex the islands to Annam. c) The Franco-Chinese dispute In 1909, however, the Cantonese authorities dispatched two exploratory missions and raised the Chinese flag on the islands. In 1920, they proceeded to administratively attach the Paracels to Hainan Island; in 1930, they decided to exploit them. The Chinese claims were disputed by the French Government, acting on behalf of Annam, its protectorate. On 18 February 1937, in a note to the

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Chinese Embassy, France proposed an amicable settlement or, failing this, a settlement by arbitration. This proposal was not followed up and sovereignty over the islands remained in dispute. In 1938, France decided to occupy the islands. Yet this occupation was carried out with the consent of China, then at war with Japan, and therefore preferring possession of the islands by a friendly government. It was understood that the rights of the two parties were reserved. d) The Franco-Japanese dispute Japan challenged the French occupation of the islands without putting forward any strictly legal argument, confining itself to vague assertions, sometimes that the Japanese colony established on Woody Island had been there for 60 years - which militated in favour of the acceptance of Japanese sovereignty by virtue of prior occupation - or else that the islands were under Chinese sovereignty and that Japan was at liberty to take the war there and occupy them. C. LEGAL SITUATION As Japan is now out of the picture and as its titles are even more questionable than China's, the question arises as to whether we are justified in asserting our rights over the archipelago and, if so, how. a) Annexation of the Paracels by Annam in 1816 This annexation, even without effective occupation, seems to have been carried out in conformity with the international law of the time. The annexation therefore conferred legal title on Annam. However, it is certain that, with the advent of modern principles, this annexation was no longer adequate. France acting on behalf of Annam as a protectorate cannot now oppose the appropriation of a res derelicta by a foreign power.1 b) Indecisive Chinese moves towards appropriation However before this can happen, it must first be possible to consider the territory formerly occupied as res derelicta and the foreign power must have complied with modern international law. On the latter point, China would not appear to have done more than assert its claims; it would not appear to have gone as far as actual occupation. The rights of Annam thus still hold sway; there has been no interruption in them.

1

Precedent of the Caroline Islands, mediation by Leo XIII.

Annex 38 245 c) The French occupation of 1938 If the Paracels had been res nullius, this occupation could not have conferred legal title on France, since at the time the Chinese Government formally reserved its rights. However, in these islands - unlike the Spratlys - it is the rights of Annam and not her own rights which France is asserting; and these rights are based, not on the occupation, but on the historical titles of Annam. In now occupying the Paracels, France is doing no more than confirming these titles, complying with the requirements of modern international law. d) Annam's vassalage to China China's argument that, Annam being in 1816 a vassal of China, to which it paid tribute, Annam's annexations passed to China, cannot be accepted for the reason that, although subordinate to China, Annam constituted a separate legal entity. D. NECESSITY TO REAFFIRM ANNAM'S RIGHTS It would seem that, despite the presence of a Japanese company equipped with arms, the French occupation continued until 9 March 1945, the date on which the native guards - in all likelihood Annamese quit the archipelago.2 The French occupation would appear to have ceased since that date. It needs to be re-established in order to avoid all difficulties which the intervention of a foreign power in the islands could only engender. Yet there can be no question either of a unilateral annexation, like that of the Spratlys, which resulted in a notification to the Official Gazette or of making provision for this annexation in the peace treaty. As the Paracels belong to Annam there is no reason for us to seek another legal title. As to whether it is appropriate to include Japan's withdrawal in the peace treaty, as with the Spratlys, consideration should be given to this in due course. Incidentally, when the Paracels are re-occupied, a certain amount of publicity will be required in order to provoke a reaction from the Powers and ensure that the rights of Annam are solemnly recognized. Among the countries from which a reaction can be anticipated is China, which should ultimately be offered arbitration proceedings in the event that amicable recognition of Annamese sovereignty cannot be secured. The choice of arbitration tribunal should be determined by the manner in which the question is raised.

2

Telegram of 3 June 1945 from Admiral d'Argenlieu.

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In view of the Agreement of 6 March 1946 between France and Vietnam, consideration must be given to the question whether Annam should be involved, in one way or another, in the re-occupation of the Paracels. Prior consultation with the Vietnamese Government would have a number of practical drawbacks; also, it is not possible to hoist the Annamese flag without the participation of representatives of that Government. As the Agreement of 6 March only recognized Vietnam as possessing rights of domestic sovereignty, its external status being left in abeyance, the situation has not changed. It is for France, on behalf of Annam, to assert its rights in the wider world, France is therefore justified in re-occupying the Paracels on behalf of Annam. It goes without saying that, if there is any reaction from Annam, it will be possible, after the event, to involve it in the operation on the basis of the external status it will be granted./.

ANNEX 39 Letter of 7 May 1951 from the Minister of State with responsibility for relations with Associated States to the Minister for Overseas Territories Re: Spratly Islands I have the honour to transmit herewith a letter dated 24 April 1951 by which Mr Edouard F. Miailhe, a French citizen, residing in the Philippines, requests permission to travel to the Spratlys in order to prospect the phosphate resources this archipelago may harbour and also that he be granted a concession as and when appropriate. The request by Mr Miaihle regarding, among other things, the possible granting of a concession in the Spratlys, raises the problem of the authority with the power to grant him such a concession and therefore of the legal status of these territories in the French Union. Since 1933, when the French Government effectively took possession of the Spratlys on behalf of France and up to the present day, these islands were included, for administrative purposes, under the former Government General of Indochina to which they had been attached. Political developments since then in the former Indochinese Federation and which resulted in the replacement of the latter by the three new Associated States have in no way prejudiced France's rights over this archipelago. Indeed, at no point in its history did the former Empire of Annam make any claim to these territories, which, furthermore, it has never occupied; and the fact that the Spratlys were for a time attached to Cochin China simply for administrative convenience cannot be relied on by the new State of Vietnam as justification for rights it never possessed. The dismemberment of the former Indochinese Federation in favour of the three independent States of Vietnam, Cambodia and Laos on the other hand raises the problem of the status of the Spratlys. For these islands cannot remain attached to Cochin China which now no longer comes under French sovereignty; nor can they fall under the political entity 'French Indochina', which has ceased to exist; unless it is considered, in this particular instance, that the French High Commissioner in Saigon should retain the administration of these territories within his powers, it would appear, subject to any observations a legal adviser might find it appropriate to make on this point, that the Spratlys should now come under the French Department of Overseas Territories, on the same basis as other French territories in the Pacific. If this

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principle is accepted, the fact remains that, owing to the strategic position of the Spratlys, the French representative in Indochina should be consulted before any steps whatever are taken regarding these islands. If you share this view, I should be obliged if you could have your competent technical services study what action could be taken on the request by Mr Miailhe. For my part, I am asking the French High Commissioner in Indochina to let me know whether he can see any reason why this request should not be granted as and when appropriate. I shall not fail to keep you informed of the reply from General de Lattre. (Signed) Jean Letourneau

ANNEX 40 Letter of 16 June 1955 from General Jacquot, General Commissioner of France and Acting Commander-in-Chief in Indochina, to the Secretary of State with responsibility for relations with Associated States Saigon. 16 June 1955 No. 3958/SPD/AFG Re: Sovereignty over the Spratly Islands (Spratly Island and Itu-Aba Island) Enclosure: map. 1 - The Vietnamese Ministry of Public Works has sounded out the French authorities in Saigon about a possible visit to the Spratlys by an economic mission. The question of sovereignty over the Spratlys is therefore likely to be raised. This is why I think it might be helpful if I set out in this letter the historical and legal background to the problem of sovereignty over the Spratlys and if you could let me know what the views of the French Government are on this matter. 2 - Geographical position of the Spratlys (see enclosed map) The Spratlys is the name of a group of islands situated in the South China Sea, some 300 nautical miles east of Cape St. Jacques, and which essentially includes Spratly (or Storm) Island and Itu-Aba Island. These two islands are separated by a distance of 180 nautical miles. Position of Spratly Island: latitude 8°40' N, longitude 111 °55' E Position of Itu-Aba Island: latitude 10°22'N, longitude 114°21' E As the crow flies, Itu-Aba lies 840 kilometres east of Saigon and 600 kilometres from the coast of Annam. Spratly Island, which is 1,000 metres in length, is flat and uninhabited. Itu-Aba Island, which is 1,300 metres in length, is also flat and uninhabited. The only resource is guano which, prior to World War II, was mined by a Japanese company. 3 - Background Previously res nullius, Itu-Aba was administratively attached to Cochin China in 1929. The official taking of possession was effected by the

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Malicieuse on 18 April 1930 and notified to the Official Gazette on 26 May 1933. Itu-Aba was occupied by a detachment of the Native Guard of Cochin China from 1938 to 1940. A French meteorological station was apparently set up there in about 1938. The island has been visited: - by the Astrolabe in 1933 - by the Dumont d'Urville in 1938 - by the Chevreuil in 1946 - The report of the visit was buried in a cement boundary-marker erected on this occasion. - by the Commandant Robert Giraud in May 1955 - An aerial reconnaissance of the island was made in 1951. A note dated 6 December 1946 from the Legal Department of the Ministry of Foreign Affairs asserts that there is no disputing the ownership of the Spratly Islands by France. 4 - Foreign designs on the Spratlys PHILIPPINES In 1946, the Government of the Philippines manifested the desire to refer the fate 'of certain islands claimed by France' to the United Nations. In 1950, President Quirino said that 'according to international law, the Spratlys belong to the nearest territory, which is that of the Philippines'. The same year, Colonel Soriano, a Filipino business magnate, made plans to send a mission to Itu-Aba to investigate the prospects for mining guano. He reportedly obtained a prospecting permit from the French Department of Overseas Territories but subsequently abandoned the idea. CHINA In 1950, the Chinese press published articles stating that 'the People's Republic of China will never allow the Spratlys or any other island belonging to China to be seized by a foreign power'. The Chinese Nationalists had no option but to fall into line. VIETNAM Tran Van Huu, President of the Government, reportedly declared that the Spratlys, which had previously been attached to Cochin China, should now be considered Vietnamese territory.

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The Japanese disputed our rights to the Spratlys during World War II. However, by the Treaty of San Francisco of 8 September 1951 (Article 2(f)), Japan renounced all rights, titles and claims to the Spratlys.1 5 - Present situation Despite the designs on the islands referred to supra, it can be accepted that French sovereignty over the Spratlys is beyond dispute. Nevertheless, it is possible that Vietnam's claims to the Spratlys may assume more concrete form on the pretext that the islands were previously attached to Cochin China. In reality, that was a purely administrative attachment and nothing obliges us to cede to Vietnam rights previously asserted on behalf of France. In this connection, it should be noted that the secret Agreement dated 15 March 1949, drafted by the French High Commissioner in Indochina, commenting on the Agreements of 8 March 1949, and addressed to H.M. Bao Dai, states that 'the Paracel and Poulo Condor Islands fall under Vietnamese territorial sovereignty', but remains silent on the subject of the Spratlys. Legally speaking, there are therefore no restrictions on France's freedom of action to reserve her rights on the Spratlys. 6 - Conclusions While the Spratlys are of little interest from the geographical and economic angle, strategically they may become important in future. Indeed, it is conceivable that these islands, situated close to one of the crossroads of navigation in south-east Asia, could be used, during periods of hostilities, as radar stations or as temporary bases for air and naval personnel, as was the case with numerous atolls in the Pacific during operations against Japan between 1942 and 1945. They might also have a role to play in the commissioning of new weapons such as guided missiles or short takeoff aircraft. Lastly, were a French oceanic base to be maintained in Indochina, the Spratlys would constitute the maritime advance post of this base and would thus be of manifest strategic interest. ** *

1

And also to the Paracels.

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For these reasons, I consider that, with an eye to the future, France's rights over the Spratlys must be maintained. May I request you to let me know whether this is indeed the French Government's position. In particular, may I ask you to let me know what attitude to adopt, at my level, should Vietnam's claims to the Spratlys be asserted./. (Signed) Jacquot

ANNEX 41 Letter dated 29 April 1949 from the Special Delegate of the Wai Kiao Pou* to the Provinces ofKwangtung and Kwangsi to the French Consulate in Canton concerning the reconnaissance of an island in the Paracels by a French warship. No. 0427 Sir, I have just received postal telegram No. 3863, dated 28 April 1949, from the Headquarters of the 4th Chinese naval base, which states, among other things: On 25 April at 1500 hours, French gunboat, registration A.O., approached Lin Island ( ) in our Paracels archipelago. It dropped anchor at 1,500 nautical miles (?) from the island, then decided to sail along the coast. Passing west of the island, it proceeded in a southerly direction, inspecting the coast of the island as far as the south-eastern sector. At 1700 hours, gunboat A.O. headed off in a south-westerly direction and departed. At 1930 hours the same day, I saw a green rocket in the south-west. On the morning of the 26th, I again caught sight of the suspect ship slowly heading north-west. Having established that the visit and reconnaissance by this French ship were unscheduled, the garrison on this island became alarmed and asked me to request your Consulate to investigate this uncalled-for interference and to let me know the purpose of the mission by French gunboat A.O. The garrison would also ask the French Consulate to inform the French authorities that it wishes to receive advance notice of any future visits by French warships in order to avoid any misunderstanding. I hope you will kindly note this, that you will order an investigation and communicate the findings in your reply. Seal of the Special Delegate of the Wai Kiao Pou* (Signed) T.W. Kwok *

Wai Kiao Pou = Ministry of Foreign Affairs

ANNEX 42 Note of 15 May 1950 from the Directorate for Asia-Oceania Re: Paracels archipelago I. - DESCRIPTION AND IMPORTANCE The Paracels archipelago is situated east of the coasts of Annam, 490 kilometres on average from Hue and south-east of Hainan, 350 kilometres from Yulin, the southern port of that island. The Paracels consist of some 30 islets, reefs and shoals, falling into two groups: a) the Crescent group, distributed around Pattle Island, which is 850 metres long and 400 metres wide; b) the Amphitrites, grouped around Woody Island, which is 1,800 metres long and 1,200 metres wide. As the crow flies, 87 kilometres separate Pattle Island from Woody Island; on 19 January 1947, the advice-boat Tonkinois sailed from one island to the other in 3 hours and 20 minutes. At a distance of some 3.5 kilometres south-west of Pattle Island lies Robert Island. Before World War II, a flock of 300 sheep was put out to graze there to provide a supply of fresh meat for the detachments on Pattle Island and Woody Island. The archipelago has no fresh water and vegetation is sparse; there are phosphate and guano deposits, which can be mined, though this process is problematic. These islands and reefs are a constant danger to major shipping lanes. As early as 1899, Governor General Doumer recommended that a lighthouse be built in the islands, yet it was not until October 1937 that a lighthouse, and a radio and weather station, were constructed on Pattle Island. These facilities, which were destroyed during the war in the Pacific, were rebuilt by us in late 1947. Before World War II, the military authorities attached a certain strategic importance to the Paracels; the staff of the cruiser Lamotte-Picquet, instructed to reconnoitre the area on 28 February 1937, formally concluded that France 'must not tolerate any foreign settlement in the archipelago'. In a letter of 22 October 1946, from the French Minister for Overseas Territories to the High Commissioner in Saigon, Mr Moutet said that, if the

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Government was not planning to set up a military base in the Paracels, it was nevertheless of the utmost importance that any moves towards occupation by a foreign power of these lands which commanded access to the future base of Cam-ranh should be prevented. This attitude certainly changed subsequently. For example, the High Commissioner's diplomatic counsellor wrote to the Ministry on 2 June 1947 that, according to the military authorities themselves and according to the current defence plan of Indochina, possession of the Paracels held no strategic importance, even though it was preferable that no foreign power should gain a foothold there. It now seems to be agreed that the occupation of the Paracels can serve no useful purpose other than for air and maritime navigation, the safety of which would be substantially enhanced in these dangerous waters if the archipelago was properly equipped with lighthouses, radios, radar, and even landing strips. II - PROBLEMS OF SOVEREIGNTY 1. NEGATIVE ATTITUDE OF CHINA AND FRANCE UNTIL 1907 Following the sinking of the German ship Bellona in the Paracels in 1895, and of the Japanese cargo ship Imegu-Maru, in 1896, Chinese fishermen looted the cargo of copper which the ships were carrying and attempted to resell it, at half its value, to the British insurance company. The insurers refused and, at their instigation, the British Minister in Peking and the British Consul in Hoihow intervened with the Chinese authorities in Hainan asking them to have the copper impounded. The mandarins protested, alleging that the Paracels were abandoned, that they belonged neither to China nor to Annam, that they were not administratively attached to any Chinese district and that no special authority was responsible for policing them. In December 1898, a French citizen requested information from the Ministry of the Colonies on the possibility of setting up stores selling provisions on the islands. The Governor General of Indochina, Mr. Doumer, consulted by his Ministry, replied, in June 1899, that this project had no chance of success and the matter ended there. 2. TAKING OF POSSESSION BY CHINA (1909-1932) [date unclear] In 1907, following Japanese claims on the Pratas Island group (325 kilometres south-east of Hong Kong and 435 [figure not clear] kilometres south-west of Formosa), the Viceroy of the Two Kwangs was anxious to

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claim for China sovereignty over the groups of islands situated off the Chinese coasts, including the Paracels. In early 1909, a Chinese mission explored the archipelago and concluded that the phosphate deposits could be mined. A company was to be set up in Kwangtung for this purpose. In late March 1909, an official Chinese mission solemnly hoisted the Chinese flag on two of the largest islands and a 21-gun salvo was fired. The plan by a Chinese company to mine the phosphates never bore fruit. In 1920, a Japanese company, Mitsui Bussan Kaisha, asked Saigon for information on the 'nationality* of the Paracels. The Commander of the Navy, Captain Rimy, replied that the archipelago was not under French sovereignty. No doubt as a consequence of this officer's careless reply, the civilian Governor of Kwangtung published in the Province's Official Gazette, dated 2 April 1921, an order of 20 March the same year, by which the heads of the military government of this Province decided to administratively attach the Paracels to the sub-prefecture of Yai Hien (Hainan Island). The French Government did not lodge any protest and appeared to recognize Chinese sovereignty over the Paracels; it held that the attachment of the archipelago to Hainan entailed the application to this group of islands of the clauses in the 1897 and 1898 Treaties aimed at prohibiting the cession of Hainan to a third power; it appeared to be satisfied with the guarantees given by these Agreements. 3. CONFLICT OF SOVEREIGNTY RAISED BY FRANCE (1932) By telegram 501 of 14 March 1930, the Governor General of Indochina, Mr Pasquier, announced that the Provincial Council of Kwangtung had adopted a resolution for the mining of the guano deposits in the Paracels. He transmitted this news, at the same time declaring that France had never ceased to assert the historical and geographical rights of the Empire of Annam over these territories. These rights were allegedly based on: a) the report in the annals of the Court of Hue of the creation, in about 1700, of an Annamese company which each year harvested fishery resources in the Paracels; b) the solemn taking of possession of the archipelago by the Emperor of Annam, Gia Long, in 1816; c) the building of a pagoda and the erection of a monument by the Emperor of Annam, Minh Mang, in 1835.

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The Ministry's legal adviser, consulted on two occasions (19 June 1930 and 3 March 1931) considered that the rights of Annam were ancient but insufficiently exercised, while those of China were recent yet frequently displayed. Hence, he considered, our case would be somewhat shaky in the event of arbitration, but that our position could be reinforced by discreet acts of sovereignty. In view of the practical risk French activities in the islands would incur, as Mr Basdevant advised, it was simply decided to assert our rights in a diplomatic Note, which was handed to the Chinese Legation in Paris on 4 December 1931 (or 4 January 1932; the date is uncertain). In March 1932, as the Chinese had put the mining of guano in the Paracels up for tender, the French Minister addressed a note of protest to the Wai Kiao Pou* on 29 April 1932, attaching a copy of the Note of 4 December 1931. The Chinese reply of 29 September 1932 rejected the French assertions and proclaimed China's own rights. Among the many arguments put forward by the Wai Kiao Pou* was the fact that Annam had been a vassal of China at the time when Emperor Gia Long had manifested his desire to annex the archipelago. Numerous Notes were exchanged subsequently between France and China on this subject. The Chinese claims were disputed by the French Government acting on behalf of the Protectorate Annam. On 18 February 1937, in a Note to the Chinese Embassy, the French Government proposed an amicable settlement or, failing that, arbitration. This proposal was not followed up and sovereignty over the islands remained in dispute. 4. OCCUPATION BY FRANCE (1937-1945). CHINA MAINTAINS THE PRINCIPLE OF ITS SOVEREIGNTY (1938) The cruiser Lamotte-Picquet reconnoitred the archipelago on 28 February 1937 and reported that the islands were deserted. A mission was dispatched to the islands from 22 to 30 October 1937 and erected the Pattle lighthouse. In February 1938, the advice-boat Savorgnan de Brazza reported that Japanese civilians were occupying Woody Island. Our reconnaissance and other missions were stepped up. In March 1938, the advice-boat Marne, for example, built some stone cairns on the principal islands. *

Wai Kiao Pou = Ministry of Foreign Affairs

258 Annex 42

Lastly, in June 1938, the Government General of Indochina embarked on the wholesale effective occupation of the Paracels. Through its Ambassador in Paris, the Chinese Government, in a Note of 18 July 1938. took note of the assurance it had received from the Ministry of Foreign Affairs 'that in no manner was this action intended to affect the respective legal positions taken by China and France regarding the sovereignty of these islands or to be prejudicial to a satisfactory settlement of this question in the future'. The same Note very firmly reasserted the principle of China's sovereignty over the Paracels. From 1938 to 1945, there was no report of any local incident between the French and the Japanese. On 1 July 1939, the French occupation was displayed as follows: a) Pattle Island: lighthouse; radio and meteorological station; 2 large stone buildings; personnel: 1 French inspector and 1 French doctor, 2 Annamese radio and meteorological operatives, 20 native guards, 150 coolies. b) Robert Island: 10 native guards, a handful of coolies. A flock of 300 sheep put out to graze on this island provides a supply of fresh meat. c) Woody Island: radio, barracks, 1 infirmary: personnel: 1 senior French inspector, 1 Annamese doctor, 30 native guards, a handful of coolies. The French occupation was apparently to end in uncertain circumstances at the time of the Japanese attack on Indochina, on 9 March 1945. 5. FRANCO-JAPANESE DISPUTE (1938-1945) Japan challenged the French occupation, even though no strictly legal argument was put forward, Japan confining itself to vague assertions, sometimes that the Japanese colony established on Woody Island had been there for 60 years - which militated in favour of Japanese sovereignty by virtue of prior occupation - or else that the islands were under Chinese sovereignty and that Japan was at liberty to take the war there and occupy them. As Japan is now out of the picture, the dispute has lapsed of itself. However, it would be prudent to include in the forthcoming peace treaty a clause by which Japan expressly renounced all its claims to the Paracels. 6. AFTER THE JAPANESE CAPITULATION: RECONNAISSANCE MISSION TO THE PARACELS BY THE FRENCH FRIGATE ESCARMOUCHE (20-27 May 1946) Admiral Thierry d'Argenlieu dispatched the frigate Escarmouche on a reconnaissance mission to the Paracels from 20 to 27 May 1946. The islands were uninhabited. Half a section was put ashore on Pattle Island. It was to be re-embarked by the Savorgnan de Brazza on 7 June following.

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In a letter from Admiral d'Argenlieu to the Chief of Staff of National Defence, on 11 June 1946, our High Commissioner wrote: 'Of itself, this mission marked the re-establishment of French rights. I am reserving the possibility of unofficially informing the local representatives of China, the United States of America and the United Kingdom of the fact...'. 7. REOPENING OF THE DISPUTE OVER SOVEREIGNTY BETWEEN FRANCE AND CHINA a) French hesitation. On 16 September 1946, the French Minister for Foreign Affairs wrote to the Secretary General of Indochina: 'I think it would be expedient to re-establish a duty station in the Paracels in order to assert our rights there.' On 22 October 1946, the French Minister for Overseas Territories wrote to our High Commissioner in Saigon: 'It is of the utmost importance that any hint of occupation by a foreign power be prevented, as these islands (the Paracels) command access to the future base of Cam-ranh. The militia post set up there in 1938 therefore needs to be re-established.' On 23 November 1946, a telegram from Saigon stated that the setting up of a permanent station had not yet received the go ahead. Meanwhile, our Ambassador in China reported that the Chinese press had announced the departure of a Chinese detachment bound for the Paracels to occupy the islands 'to control piracy'. On 26 November 1946, the Ministry urged the French Ministry of Overseas Territories to land some troops on the islands without delay. On 12 December 1946, the High Commissioner telegraphed that, for technical reasons, he would not be able to proceed with the effective occupation of the islands before 15 January 1947. b) Announcement by the Wai Kiao Pou* of the occupation of the Paracels by Chinese troops (7 January 1947). At a press conference in Nanking, Mr George Yeh, spokesman for the Ministry of Foreign Affairs, announced on 7 January 1947 that 'the Chinese Government has reoccupied the Paracels and that the Chinese flag once again flies over these islands which have never ceased to belong to China', c) French protest. On 13 (?) January 1947, our Ambassador handed a Note to the Wai Kiao Pou* expressing 'the strongest reservations regarding the legal consequences of the occupation of the Paracels by Chinese forces' and recalling the earlier proposals by the French Government for an amicable settlement or for arbitration. *

Wai Kiao Pou = Ministry of Foreign Affairs

260 Annex 42 d) Mission by the advice-boat Tonkinois to Woody Island (17 January 1947): the island was effectively occupied by a Chinese detachment: continuation of the mission to Pattle Island, uninhabited; a French detachment was installed there (19 January 1947). The operation aimed at resuming the occupation of the Paracels having been so unhappily delayed, the advice-boat Tonkinois, on arriving on 17 January 1947 off Woody Island, in fact found Chinese troops already installed there. The French commander invited the Chinese commander to evacuate the island, offering to take him on board, together with his detachment, and to return them to Tourane. After telegraphing Nanking and requesting instructions from his government, the Chinese commander declined the offer. Thereupon, the advice-boat Tonkinois severed contact on 19 January 1947 and, having established, the same day, that Pattle Island was uninhabited, landed a detachment of 20 men there. e) Diplomatic incident between France and China (January 1947). Either because the conduct of the commander of the Tonkinois was inept or because the Chinese commander, wittingly or unwittingly, misrepresented the action of the French officer on Woody Island in his report, the Nanking Govern ment immediately turned this ultimately unimportant matter into an issue of national prestige and blew it up out of all proportion into a major incident; it protested against the French naval operation in the Paracels with extraordinary vehemence and asserted in a welter of publicity that the islands were definitively under its sovereignty. f) Fruitless negotiations in Paris (February-July 1947). The talks in Nanking on this matter had serious drawbacks owing to the intransigence which the Wai Kiao Pou* claimed was imposed by Chinese public opinion. On 29 January 1947, the Ministry therefore proposed that the talks be transferred to Paris. The Wai Kiao Pou* did not oppose this suggestion, yet it was not until 25 February 1947 that the Ambassador initiated the talks laying down the evacuation of Pattle Island by the French detachment as an essential condition. The Ministry therefore came up with various (for China) face-saving formulas designed to lead, through arbitration, to a definitive solution of the Franco-Chinese dispute. The talks were fruitless, apart from highlighting the strong prejudice which the very principle of recourse to arbitration met with on the part of the Nanking Government. On 4 July 1947, new proposals were put to the Chinese Embassy in the context of a 'plan for the simultaneous settlement of the principal questions

*

Wai Kiao Pou = Ministry of Foreign Affairs

Annex 42 261

pending between France and China on the basis of mutual interest'. These proposals fell on stony ground. g) Abatement of the conflict (1948-1950). Subsequently, and probably owing to the worsening situation of the Nationalist regime at home and abroad, the tension subsided appreciably. At an audience granted by Chiang Kai-shek to our Ambassador in May 1947, the General recalled the importance China attached to the Paracels and indicated that this problem was of particular concern to him; in a purely symbolic motion (No. 345), the Chinese National Assembly, before disbanding for two years, called upon the Government in April 1948 'quickly to put an end to France's possession of the Paracels', In May 1949, the provincial delegation of the Wai Kiao Pou* announced the appointment of an 'administrator' for the Paracels, Canton having subsequently fallen into the hands of the Communists in 1949, the case of the Paracels was no longer mentioned. The Chinese detachment remained on Woody Island while the French detachment was kept on Pattle Island. III - PRESENT SITUATION ( 15 May 1950) 1. CHINESE NATIONALIST ACTIVITY (evacuation of Woody Island?) The Ministry has no precise information on the activities of the Chinese Nationalists in the Paracels. According to a telegram of 10 May 1950 from our Consul in Hong Kong, reproducing an Associated Press wire published in Taipei on 8 May 1950, 'General Chu Chi-ju, acting chief of staff, today declared that the small Nationalist garrison and naval units based in the Paracels were pulled out last month'. Our Consul in Taipei confirmed this information on 11 May. It was also reported that Nationalist troops fleeing Hainan had tried to seek refuge in the Paracels. 2. COMMUNIST CHINESE ACTIVITY Unconfirmed press information (Reuter and United Press, 6 and 7 May 1950) reported that a flotilla of Communist junks had left Hainan in the evening of 6 May to 'liberate' the Paracels. However, our station on Pattle Island has so far noticed nothing, apart, that is, from a collection of unidentified junks around Robert Island (Crescent group) on 7 May.

*

Wai Kiao Pou = Ministry of Foreign Affairs

262 Annex 42

3. FRENCH ACTIVITY A French detachment is still stationed on Pattle Island. It consists of 2 officers, 10 French nationals and 17 Vietnamese; a ship from the French Navy visits the island once or twice each month. The radio and telegraph post, originally serviced by military personnel, has been serviced since October 1947 by the civilian meteorological service of Indochina. This solution was adopted in the context of international agreements on air security in the wake of the preparatory conference in Saigon on 29 September 1947, which extended our regional air control to longitude 115° E. IV. QUESTIONS PENDING 1. Defence of Pattle Island. On 8 May 1950, our High Commissioner in Saigon reported that the garrison was now under orders, in the event of an attack, to defend the meteorological station to the bitter end. It requested the advice of the Ministry of French Overseas Territories on this matter and asked for instructions regarding how to react both in the event of a deliberate attack on Pattle Island and also in the event of the occupation by the Communist Chinese of the other islands in the Crescent group. To date (15 May 1950), the Department of French Overseas Territories has not yet issued instructions on this matter. 2. Conflict of sovereignty. The conflict of sovereignty has still not been resolved. The Ministry's legal adviser has been asked to state his opinion on the possibility, for France or Vietnam, of referring the matter to the Inter national Court of Justice./.

Annex 42 263

264 Annex 42

ANNEX 43 Telegram of 23 April 1949 from Saigon The article you refer to is a summary of a lecture given in Saigon by Prince Buuloc, His Majesty Bao Dai's directeur de cabinet. This lecture, an advance copy of which I had not requested at the time Vietnamese independence was proclaimed, was aimed at the Vietnamese and intended to revive the somewhat lukewarm enthusiasm over the Agreement of 8 March, the text of which has not been published. I agree that this event was inopportune, but such incidents, the very consequences of the new status of the Indochinese States, will unquestionably become harder and harder to prevent. On the substance of the question, I would point out that it was not the French negotiators of the Agreements of 8 March who drew the attention of the Vietnamese either to the position of the Paracels or to the situation of Poulo Condor Island, but that it was the Vietnamese negotiators, highly competent lawyers, who insisted on raising it specifically, and did so of their own accord. The result of our efforts was merely to prevent the exchange of letters from expressly mentioning the fact. Nevertheless, I personally had to affirm to His Majesty Bao Dai that this High Commission, following in the footsteps of the former Government General, considered the Paracels to be a crown dependency of Annam and that, in this dispute, I shall support the Vietnamese position. Once this assurance, which I repeat is personal to me and may at any time be disclaimed by the French Government should it see fit, had been given, it could not be withdrawn. This was demanded not only by the success of delicate negotiations, but also by respect for Indochinese tradition and honesty. Since in the French Union we are conferring associate status with France on a country, while asking it to agree to limit its diplomatic freedom, it seems to me absolutely essential, when it has only just joined the game, not to tell it that we refuse to support national claims whose merits we have accepted for years. I shall send Prince Buuloc some observations on the discretion which is called for in diplomacy./.