Historical and Juridical Title of VN Over Islands (Part.1)

THE HISTORICAL AND JURIDICAL TITLE OF VIETNAM - PERIOD BEFORE 1884

By Luu Van Loi

I. THE ĐẠI VIỆT DISCOVERED THE HOÀNG SA

If the Biển Đông (the South China Sea), like the Mediterranean Sea, is a strategical sea, there is, however, a great difference with regard to the history of navigation. As early as the years 3000 B.C. Phoenicians, Carthaginians, Cretans, Romans, and Greeks used that sea as a route of liaison and commerce with other riparian countries and made commercial and cultural exchanges with riparian countries from as far as the Black Sea. Maritime navigation was very developed in the region. On the contrary, in the Biển Đông, situated in a populated region and at the crossroads of several civilizations, for a rather long time the maritime activities of riparian peoples remained limited on a national scale. Movement by sea within the region was already difficult, all the more so with other regions. The reason was that the Biển Đông area is strewn with a multitude of islets and coral shoals which are very dangerous to navigate. Moreover, it is in a region of tropical tempests unbearable for the ships of that time. For these reasons, only after maritime navigation had made great technical progress, for example the possibility of building large ships, the invention of new forms of sails, and especially the invention of the navigation compass, could the ships, going to SEA or starting from there, venture to the high seas. That moment ushered in the era of commercial and cultural exchanges in that region, such as in India, in Western Asia and in Asia Minor.

The first navigators who crossed the Biển Đông were not only the Vietnamese, the Chinese, and the Malays, but also the Arabs, and the Indians. The Arabs came to China in the 8th and 9th centuries. In Quanzhou today, one can still find the mosque Ashab, the Muslim cemetery Lingshan, a statue of Visnu, a few tombs bearing inscriptions in Arabic. In the 13th century, Marco Polo arrived in Quanzhou, which he considered the biggest commercial port of that age. In 580, the venerable Buddhist priest Vinitaruci came to Vietnam by sea. The Chinese venerable Fa Hien came from India to China also by sea. Since the 13th century, Arab traders sailed to and fro on the Bien Dong and controlled a network of commercial representative offices from India to Quanzhou via Malacca.

The Portuguese were the first Europeans who came to East Asia and SEA: In 1505, they arrived in Malacca, in 1510, in Goa (India). They were Portuguese, but they flew the flags of the Spanish king. Magellan circumnavigated the globe and occupied the Philippines in 1521. Later, the Spanish installed a colony there in 1527. In spite of the proximity of this archipelago to the Spratly, the Spanish did not occupy any of its islands or shoals. Over many subsequent centuries, the Chinese had to cope with ethnic peoples of the West and the North, therefore their policy was essentially continental. But since the withdrawal to Hangzhou, the Southern Song could control the coastal region and the Yangzi and ever since they implemented a maritime policy. Under the Ming, emperor Young Le hastily built big boats, called bao chuan (treasure ships) and had the great eunuch Zheng He conduct an extremely strong fleet composed of 300 vessels (including 60 bao chuan) and nearly 30,000 men to SEA, the Indian Ocean, and the African coasts.

These were the seven voyages in the Southern seas carried out by Zheng He over 28 years. Crossing the Bien Dong in the course of nearly 30 years, sometimes passing by the Paracels, Zheng He did not occupy any island or shoal of the Paracels or the Spratly, leaving no trace there. Succeeding the Ming, the Qing pursued at first the policy of haifang (coastal defense) aiming at defending the coasts and the rivers. In the middle of the 19th century, after being defeated in the opium war, they thought to build a modern navy with Europeans as
instructors. This policy did not realize its power in time to resist the fleets of Western countries and that of Japan. So, unable to defend themselves on land and having no large vessels, how could they venture into the Biển Đông to lay hold of new lands?

The Dai Viet (ancient name of Vietnam) was a small country spreading along the coast of the Biển Đông. But as early as its creation, it was already a maritime country. War junks engraved on the bronze drums discovered in many parts of Vietnam show that in ancient times, the Vietnamese people already set great store by maritime navigation and reinforcement of naval forces. In the 17th century, the navy of the Nguyen seigneurs twice vanquished the warships of the Dutch. In the 18th century, the fleet of the Tây Sơn destroyed the fleet of Siam at Rạch Gầm- Xoài Mút. During that time, the navy of Cochinchina was provided with ships armed with howitzers and artillery guns.

Faced with the vital necessity of expanding their land, the Nguyễn seigneurs not only continued their march southward, but also made voyages on the high seas to occupy and exploit the islands of Hoàng Sa (i.e. the two archipelagoes). With the available documents, we can affirm that, at least, since around the 17th century, the Vietnamese feudal state had discovered and occupied the Hoang Sa (name of the Hoàng Sa and Trường Sa archipelagoes at that time) which did not belong to any state.

II. THE NGUYEN SEIGNEURS PERFORMED THEIR STATE FUNCTIONS OVER THE HOANG SA

At the beginning, the Vietnamese gave to the newly discovered islands the name in Nôm (demotic characters): Bãi Cát Vàng. The name Cát Vàng was marked on the map of Đỗ Bá Công Đạo. The Englishman Gutzlaff, in an article - "Geography of Cochinchina" -inserted in the review Geographical Society of London of 1849 also calls it Katvang(5).

In an article about Vietnam (Memoir on the Geography of Cochichina) published in the Journal of the Asiatic Society of Bengal, September 1837, bishop J.L.Taberd used the name Catvang (6). Dubois de Jancigny, in his book The Universe, History and Description of All Peoples, their Religions, Customs and Habits: Japan, Indochina, Ceylon, etc. spoke of Hoang Sa under the name Katvang... It is only later that the name was sinized into Hoang Sa (which always means "yellow sand").

The Vietnamese feudal state occupied the Hoang Sa through an organization set up by the State. Therefore, it actually occupied the Hoang Sa that the Kergariou-Locmaria expedition in 1787 – 1788 described the area as composed of two different archipelagoes separated from each other by a 500 km wide channel.(7) The Thiên Nam tứ chí lộ đồ thư (Collection of route-maps of the Southern Country) writes:

"In the middle of the sea there is a great sand shoal called Bãi cát vàng about 400 dặm long and 20 dặm wide which spreads on the sea... Each year, the last month of winter, the Nguyen sent there 18 junks to recover the goods, thus obtaining a great quantity of gold, silver, money, arms and ammunitions"(8).

The Bãi cát vàng is drawn in front of the district of Bình Sơn of the prefecture of Quảng Nghĩa and the island Cù Lao Ré very far from the coast. Immediately after its discovery, Bãi cát vàng was merged into the territory of Đại Việt, more precisely to the prefecture of Quảng Nghĩa.

All the official works of the State written by Institute of National History speak of Hoang Sa. The Đại Nam thực lục tiền biên (1844 - Authentic writings on the Dai Nam) in the part reserved for the Nguyen seigneurs writes:

"At sea beyond the commune of An Vĩnh, district of Bình Sơn, province of Quảng Nghĩa, there are more than 130 shoals and reefs separated from one another by one day or several geng. No one knows the length is how many thousand dặm (commonly called Vạn Lý Hoàng Sa); there is fresh water and such products as the holothurians, the scaled tortoise, mother-of-pearls, plaices"(9).

The Đại Nam thực lục chính biên (1848 - Authentic writings on the Đại Nam) part reserved for the Nguyen kings writes:

"The Hoang Sa are situated in the waters of Quảng Nghĩa, where the sky and the sea intermingle, preventing the evaluation of the depth."(10)

And:

"The land of Hoang Sa belongs to our territorial sea and is of great strategic importance..."(11)

The Khâm Định Đại Nam hội điển sự lệ (Administrative catalogue of the Dai Nam established by imperial order) written from 1834 to 1851 confirms:

"The Hoang Sa are an integral part of our territory and of a great strategic importance".(12)

The Đại Nam nhất thống chí (Geography of the unified Dai Nam) elaborated from 1865 to 1882 (revised and augmented later), is an official book of the geography of Vietnam written by order of Emperor Tự Đức. In book VI, on the province of Quảng Nghĩa, one finds:

"In the East, the sand shoal of Hoàng Sa spreads and joins the blue sea to make a rampart on the sea; in the West, innumerable rocky walls solidly protect us against the mountain tribes. In the South, in the proximity of the province of Bình Định, the side of Bến Đá constitutes a transversal fortification; in the North, adjoining the province of Quảng Nam, are passes of sandstone which can serve as borders".

"To the East of the island Ré (Ly in Sino-Vietnamese), district of Bình Sơn, are the Hoàng Sa that can be reached from Sa Kỳ coasts in 3 - 4 days and nights with a favorable wind. The archipelago comprises in all more than 130 peaks separated from one another by one day or by a few geng. In the middle of the archipelago is the shoal Hoang Sa (yellow sand) which spreads over one doesn't know how many thousand dặm, commonly called Vạn Lý Trường Sa (shoal of ten thousand miles); fresh water, sea birds in innumerable flocks, holothurians, snails, goods from the wrecked ships are found there."(13)

From the 18th to the 19th centuries, many dignitaries, including the editors and editors-in-chief of the Institute of National History of the Nguyễn dynasty wrote about the Hoang Sa. In 1776, encyclopedist Lê Quý Đôn, then Deputy-governor of Thuan Hoa, wrote in his book Phủ Biên Tạp Lục (Miscellanies on the government of the marches):

"In the offing of the island Re (three or four geng from the coast- Author) there is the Great Trường Sa which formerly gave many sea products for sale in different markets. That's why the State organized the Hoàng Sa company to gather the maritime products. It takes three days and nights to reach the Hoàng Sa, which is close to the Northern country"(14).

In 1821, Phan Huy Chú, a scholar famous for his erudition who was entrusted with important functions, especially those of an editor of the Institute of National History, wrote his voluminous Lịch Triều hiến chương loại chí (Settlements of matters by the successive dynasties). He devoted a long passage to the Hoàng Sa (physical geography, organization of the Hoàng Sa company, resources). Here is an excerpt:

"Here (i.e the prefecture of Tư Nghĩa - Author) the potential is significant; rice is abundant; gold, silver, timber, precious stones, aloes wood, benzoin are all of excellent quality; domestic elephants and horses are also numerous. Moreover, there are islands and islets where precious and strange things are found. In this land (the hamlet of An Vĩnh, district of Bình Định, later called Bình Sơn - Author) on the high sea, there are a great number of islands and islets, approximatively 130 peaks, separated one from another by one day or several geng. To go by the high seas it takes 3 days and 3 nights to reach the Hoàng Sa"(15).

In 1876, Nguyễn Thông, a dignitary to whom Emperor Tự Đức entrusted the revision of the Khâm Định Việt sử thông giám cương mục (Text and comments forming the complete mirror of the history of Vietnam per order of the emperor) wrote the Việt sử cương giám khảo mục (Brief history of Vietnam) containing the following passage about the Hoàng Sa:

"Vạn Lý Trường Sa: from the island Lý (commonly called Ngoại La, and Weila by the Chinese) i.e. the island Ré, going to the East, one will arrive in three days and nights"(16). The Chinese say "to have discovered" (not in the juridical meaning) the Xisha and the Nansha and to have known of their existence. As for the Vietnamese, not only have they known of their existence but they have effectively discovered (in the juridical meaning) the Hoàng Sa and Trường Sa. Nowhere have the Chinese spoken of the occupation of the islands of the southern sea; they knew of them only, while the Vietnamese said they had occupied the Hoàng Sa and Trường Sa.

III. THE NGUYỄN SEIGNEURS ORGANIZED THE EXPLOITATION OF THE RESOURCES AND THE ADMINISTRATION OF THE ARCHIPELAGOES

Since their appointment by the King Lê as governors of the southern half of the Đại Việt, South of the Đèo Ngang pass, later called Cochinchina, the Nguyễn seigneurs governed a country which was but a coastal band, narrow and unfavourable for cultivation, including: many politically and economically precarious regions. But that country had the great advantage of having longer coasts than the North and bordering the centre of the Biển Đông, which was the platform of the route from Malacca to Canton, Taiwan, and Japan. To profit from this advantage became a state policy for the Nguyen seigneurs, which was composed of the following four points:

1. Organization of the systematic exploitation of the maritime zones.
2. Organization of the control of the sea.
3. Organization of the coastal defense.
4. Organization of the tax collection and commercial exchanges with other countries.

In the course of these activities, the South discovered the islands Cat Vang, far from the coast, which led the Nguyen seigneurs to set up a state organization in charge of their occupation and exploitation. Composed of tiny islets and coral shoals, the Hoàng Sa has few underground resources. Heated each year at least for six months by the tropical sun and suffering drought, the islands are not favourable for agricultural development. There is a layer of guano which covers the ground and constitutes an excellent manure, but before the 20th century, the Vietnamese did not know its use. Only from the second half of the 20th century were undersea mineral resources discovered, and means available to exploit them. As the Đại Nam Nhất thống chí judiciously assesses, "the country produces a lot of holothurians, tortoise shell, snails with pearl, turtles and contains the merchandise left by wrecked ships". The Nguyễn seigneurs had a form of organization for the exploitation of the riches, which consisted in creating companies commanded and managed by the government and permitted to employ specialized personnel, which, in return, received material and political interests. According to the Phu Bien tap luc, the State organized the following companies:(17)

- Company Thanh Châu specialized in the gathering of swallow nests on the islands near the port Tam Quan, Thời Phú, Nước Ngọt, Nước Mặn (prefecture of Quy Nhơn).

- Company Hải Môn specialized in the fishing of sea products and in collecting merchandise beyond the island Phu Quy. According to Lê Quý Đôn, the organization and the administration of the companies Hoàng Sa obeyed the following points:

1. The task of the company was to fish for sea products (motherof- pearls elephants, ear-snails, good-smelling snails, holothurians, tortoise-shell, tortoises...) and to gather the merchandise and objects from wrecked ships (muskets, swords, guns, gold, silver, lead, tin, ivory, porcelain, woollen cloth, cloth, wax etc.).

2. The effective was fixed to 70 men. 3. For the company Hoàng Sa, the recruitment of labour was from the inhabitants of the commune of An Vlnh on the island Re, district of Binh Sdn, by order of the inscription to the role.

4. Advantages given to the members of the company Hoàng Sa: the volunteers had the right to an award of service, to the exemption from the personal tax, corvee, tolls. Those who did not fulfil their task were submitted to punishments corresponding to the gravity of the committed fault. The fulfilment of tasks would give right to a certificate of recognition and a reward in cash. Under the Nguyen emperors, the sanctions remained the same: according to the report of the Ministry of Public Works dated the 13th day, seven month of the 18th year of Minh Mạng s reign (1837), the commander of the naval forces Phạm Văn Biên and the guides Vũ Văn Hùng, Phạm Văn Sinh, and the helmsman Lưu Đức Trực, in the course of a voyage to the Hoàng Sa in 1837, arrived late and, as a result, were punished by flogging. The commander of the garrison Trương Viết Soái, in the course of the voyage in 1836, did not return the maps and for that was condemned to capital punishment, under reserve of the imperial approbation.

5. The duration of the mission was one year: in the 2nd month handing over the order of service; in the 8th month, end of mission and return. The number of junks in use was 5, the supplies were prepared for 6 months.

Later on, the Nguyen seigneurs organized a new company called Bắc Hải with undetermined effectives to be recruited among the inhabitants from the village Tứ Chính, or from the village Cảnh Dương and placed under the command of the company Hoàng Sa. In view of the large area of the maritime zones of Hoàng Sa, the company Bắc Hải was entrusted with the task of operating from the Trường Sa to Poulo Condore and to Hà Tiên. The results obtained by the companies depended on the companies themselves. In general, the products of fishing were up to the norms, but the quantity of merchandise or objects gathered was different each year. In his capacity of Deputy governor, Lê Quý Đôn himself made an enquiry:

"I (i.e Lê Quý Đôn - Author) have examined in person the registers of the Cai Đội Thuyên Đức Hầu and found the following: The year Nhâm Ngọ (1702) the company Hoàng Sa found 30 silver bullions. The year Giáp Thân (1704) 5,100 cân of tin. The year Ất Dậu (1705) 126 silver bullions. ừrom the year Kỷ Sửu (1709) to the year Quý Tỵ (1713), i.e. in five years, the company gathered several cân of tortoise-shell and holothurians. Sometimes only a few tins of salmon, a few bakedearth bowls and two bronze guns were found"(18).

IV. THE NGUYỄN EMPERORS CONSOLIDATED THE SOVEREIGNTY OVER THE TWO ARCHIPELAGOES

After the 1771 insurrection, the Tây Sơn became the rulers of Cochinchina and founded a new dynasty. They attached increasing importance to the development of the navy and the exploitation of the country s maritime position. They maintained the activities of the company Hoang Sa. After overthrowing the Tây Sơn with the assistance of France, Gia Long assumed the throne and ushered in the era of the Nguyễn dynasty. He began the reconstruction of the devastated country by the struggle between the Trịnh and the Nguyễn. At first, he suspended the activities of the company Hoàng Sa to resume them some time later. At least until the reign of Tự Đức, the members of the company Hoàng Sa were glorified as heroes, as evidenced by the funeral oration pronounced at the commemorative ceremony in their honour in their native country.

From 1805 on, Gia Long implemented all over the country a plan aimed at making the inventory of all the lands of each province, each district, and each commune in accordance with common instructions. This plan was continued by Emperor Minh Mạng and completed in 1836, with the achievement of the Địa bạ Gia Long (Gia Long land register).


It is precisely in the framework of this plan that the maintenance of the company Hoang Sa and its activities were carried out for exploitation purposes and for the topographic measurings of the Hoàng Sa.

J.B.Chaigneau, counsellor of Emperor Gia Long, with the Vietnamese name Nguyễn Văn Thăng, writes in his memoirs:

"Cochinchina, the sovereign of which has today the title of Emperor, is composed of Cochinchina proper, Tonquin, a part of the kingdom of Cambodia, some uninhabited islands not far from the coast and the Paracels archipelago, composed of uninhabited reefs and rocks. It is only in 1816 that the present Emperor took possession of this archipelago".(19)

In fact, the Emperor Gia Long did not go to the Hoàng Sa in person, but he sent Phạm Quang Ảnh there. "In the first month of the year Ất Hợi (1815), the King ordered Phạm Quang Ảnh of the company Hoàng Sa to go to the Hoàng Sa to study and to measure the maritime routes..."(20).

"In the year Bính Tý, the 15th year of the reign of Gia Long (1816), the King ordered the navy and the company Hoàng Sa to go in junks to the Hoàng Sa to study and to measure the maritime routes...(21).

The first kings of the Nguyễn dynasty mobilized the company Hoàng Sa to exploit the islands and the shoals of Hoàng Sa, and at the same time, to reconnoitre, measure the islands and the shoals of the archipelago, and to draw its map.

To consolidate sovereignty

The Đại Nam Thực Lục chính biên writes:

"In the eighth month, in autumn, of the year Quý Tỵ, the 14th year of the reign of Minh Mạng (1833)".

"... the King told the Ministry of Public Works: On the Hoàng Sa in the waters of Quảng Nghĩa, in the distance, one can see the sky and the sea join in the same colour, which makes it difficult to estimate the depth of the sea. Recently, commercial vessels sunk there. We have to prepare junks and send our men there next year to build a temple, to erect a stele, and to plant many trees. In the future, the trees will grow and their greenery will help people recognize more easily the islands and the shoals to avoid being wrecked. It s a good work that will last a long time" (22).

- "In the sixth month, in summer, of the year Ất Mùi, 16th year of the reign of Minh Mạng (1835).

- ...last year, the King had the intention of building a temple and of erecting a stele in this place (the Hoàng Sa - Author), but the works were prevented by storms. Order is given now to the Cai Đội of the navy, Phạm Văn Nguyên, to dispatch his men there and to the commander of the garrison, the workers of the provinces of Quảng Nghĩa and Bình Định to ensure the transport of materials for the construction of the temple (7 trượng distant from the old temple). To the left of the temple will be erected a stone stele, in front of the temple a windshield. The works must be completed in 10 days and the men must return"(23). Regarding the construction of the temple, the Khâm Định Đại Nam hội điển sự lệ gives the following facts":

"The 16th year of the reign of Minh Mạng (1835), it is respectfully demanded to the King to authorize the construction of a one-room temple in Hoàng Sa (according to the regulations concerning stone houses) to the southwest of the Bach Sa dune, with a stone stele on the left (1 thước 5 tấc high, 1 thước 2 tấc wide). In front, a stone wall will serve as a windshield, on the right and on the left, trees of different species will be planted"(24)

To actively execute topographic measures of the islands and the shoals and to measure the maritime routes. In the cadastral plan of all the country, King Minh Mạng paid attention to the acceleration of the works on land and to the topographic reconnaissance of the islands in the Hoàng Sa. According to the Đại Nam thực lục chính biên, King Minh Mạng gave general and specific instructions to the Company Hoàng Sa:

"The year Bính Thân , 17th year of the reign of Minh Mạng (1836), the Ministry of Public Works reported: the land of Hoàng Sa belongs to our territorial sea and is of great strategic importance...We have sent our men there to draw maps, but in view of the large area of the sea and of its distance, we have managed to carry it out in one place and we don t know how to continue the work. Each year it is a custom to send our men there to reconnoitre and to accustom ourselves to the maritime routes. From this year on, at the end of each first month, men of the navy, of the coast guard, and of the garrison will be sent on board a large junk to arrive at the beginning of the second month in Quảng Nghĩa, and the two provinces of Quảng Nghĩa and Bình Định will be authorized to hire junks from privates who will serve at the same time as guides in the voyage to the Hoàng Sa. When the junks arrive at an island or a shoal, no matter which one, they will from that point measure the length, the width, the height, the area, the perimeter of that island or shoal, the depth of the surrounding waters, find out the submerged shoals, reefs, if any, specify whether the approach is dangerous or normal, examine well the terrain, measure and draw a sketch. Moreover, considering the day and the port of departure and marking the route and the direction followed to arrive at a given point, they must estimate in dặm the length of that route and locate this point in regard to the coast by specifying the province and the district in front, the approximative distance in regard to the coast in dặm. All this must be mentioned and reported upon the return. The King approved the report and gave order to the Suất Đội of the navy, Phạm Hữu Nhật, to lead the fleet and to prepare 10 wooden posts to mark the visited places (each post is 5 thước long, 5 tấc wide, and 1 tấc thick). Each post bears the following inscription engraved on one of its faces: the Chánh Đội trưởng Suất Đội
Phạm Hữu Nhật of the navy has come here to the Hoang Sa for reconnaissance and topographical measures and leaves this witness-post to mark the fact"(25).

To fulfil international obligations

As said above, in the capacity of the sovereign of Hoàng Sa, in 1833, King Minh Mạng, anxious of their low height in regard to sea level, and of the confusion of the sea and the sky, ordered the Ministry of Public Works to plant a great number of trees, which, when taller, would facilitate the recognition of the coast of the islands and the shoals, and would allow the avoidance of ship wrecks. It was an act evidently inspired by the sense of guaranteeing the security of international navigation in territorial waters. Long before that, the Nguyễn seigneurs had given assistance to the wrecked ships in the vicinity of the Paracels. At least two instances can be recalled. The first case is that of the Dutch ship Gootebrok, wrecked in 1634 in the sea of the Paracels. The second is that of three Dutch sailed ships coining back from Japan and going to Batavia in 1714:

near the Paracels, they were surprised by a tempest. Two of them were able to avoid danger, the third was wrecked. The survivors, after taking refuge on the islands, found a way to get to Nha Trang (Cochinchina). They were all received by seigneur Nguyễn, who offered them money and rice to continue their way. These cases of rescuing wrecked ships are evidently cases of rescue by a riparian country in its territorial waters, aren't they?

V. ATTITUDE OF OTHER STATES VIS-A-VIS THE SOVEREIGNTY OF THE DAI VIET OVER THE HOANG SA

On the basis of the available documents, since the 17th century, the Đại Việt had occupied and administered the Hoàng Sa - i.e. the Paracels and Spratly archipelagoes. It was at time when not only the neighbouring countries, such as China, the Philippines, and Malaysia, but other Western powers in quest of new lands and new markets, such as Portugal, Spain, and Holland were also concerned. At that moment of history, Spain was the ruler of the Philippines; however, the Spanish were not opposed to the occupation of the archipelagoes by the Đại Việt and did not occupy any islands themselves.

Portugal had made Macao, which it occupied in 1550, an important commercial port. The first European who came to the Dai Viet was a Portuguese. The Portuguese policy at that time aimed at maintaining friendly cooperative relations with the Nguyễn seigneurs. Far from opposing the administration of the Hoàng Sa by the Đại Việt, Portugal helped the Nguyễn seigneurs in the manufacture and purchase of guns.
.
The Netherlands had two skirmishes on the sea with Cochinchina, not because of the Hoàng Sa, but because of its attempts to contact the Trịnh in the North. China deserves to be treated separately. If one thinks of the mass of historical writings related or unrelated to the Xisha and the Nansha published by Peking in increasing number each day, one would think that imperial China would have been the country that was opposed in the strongest way and most frequently to the occupation and the administration of the Hoàng Sa by the Đại Việt; but the unquestionable fact is that until the end of the 19th century, not only for nearly three centuries, China had not raised any protest against the Vietnamese authorities. The reason is simple: the Hoàng Sa did not belong to the territory of the Quing as the books, the manuals of geography and the Chinese maps show the Southern extremity of China being the island of Hainan. The Chinese authorities, as well the Chinese navigators and businessmen
who had passed by the Biển Đông and Vietnam, made no statements on this question. The tacit acknowledgement of the sovereignty of the Đai Việt by China continued for a long period. The Vice-governor of Thuận Hóa, Lê Quý Đôn, wrote in his Phủ biên tạp lục:

"The shoals of Hoàng Sa are in the proximity of Lianzhou, island of Hainan. Fishermen of our country sometimes met the fishing junks of the men of the North (the Chinese - Author) on the sea. On the high seas, people of the two countries asked one another about their activities. I myself saw a note which the Mandarin-Chief of the district of Wonchang of Qiongzhou addressed to the prefecture of Thuận Hóa in which he said: "In the 18th year of reign of Qianlong, ten military men native of the commune of An Vĩnh, company Cát Liêm, district of Chương Nghĩa of Annam, one day in the 7th month, arrived in Wanlichangsha for fishing and gathering merchandise. Eight of them set foot on land, leaving the two others to guard the junk. The mooring rope was broken by the wind, the junk was pushed by the waves as far as the port of Quang Lan, where the local authorities could verify the facts and sent these men to their native country. Seigneur Nguyễn Phúc Chu (rather Nguyễn Phúc Khoát mistakenly written Nguyễn Phúc Chu because the latter had died by that date - Author) ordered the Cai Bạ of Thuận Hóa, Thức Lượng Hầu, to make a note in answer"(26). When China has no valuable writings to defend its right of sovereignty over the Xisha and the Nansha, can it use its right of "suzerain" vis-a-vis its "vassal Đại Việt" to pretend that the latter had occupied them on their behalf?

We are facing a complex legal question. It is true that previously the kings of Đại Việt received the investiture of the Chinese Court to which it had to pay tribute. Deveria, in his book Histoire des relations de la Chine avec l'Annam du XIIIe au XIXe siècle writes:

"The word FAN which I translate by vassal has the literal meaning of borderland, a hedge in the sense of immediate neighbouring country and at the same time hedge of China. Combined with the word THAN it means "the protector of the throne" and the "defender of frontiers". Under the Northern Song, this title was given to certain dignitaries near the frontiers who enhanced the honour of China, which considered them its subjects, in spite on this fact"(27). The regime of vassality, essentially applied in the Ottoman empire, is a precedent of protectorate. It brought about two kinds of obligations: those of the vassal state (financial tribute and military assistance to the suzerain state), and those of the suzerain state (military aid) to the vassal state. The Chinese emperor invested the kings of Đại Việt without being obliged to defend their country militarily in case of aggression. The kings of Đại Việt paid tribute to China without being obliged to pay a financial tribute or to offer military assistance. Internally, as well as externally, the Vietnamese kings had the right to act without having to first consult the Chinese Court (for instance at the signing of treaties with France in the 19th century). The fact of accepting the investiture can be seen as an alignment, an acceptance of ideology, of the culture of China, as today one stands in "the free world" or "the socialist world". With such a distinction between the notion of hedge-country and vassal country, it is evident that China has no right of "suzerainty" over Vietnam. Moreover, this little influence of the Celestial Court which would have subsisted was wiped out by the annexation of Vietnam by France in the 19th century.

The treaty of Peace and Alliance concluded between France and Vietnam of 15 March 1874 explicitly states:

"Article 2. H. E. the President of the French Republic, recognizing the sovereignty of the King of Annam and his complete independence vis-a-vis any foreign power, whatever this power may be, promises to grant aid and assistance and undertakes to give, upon its demand and without repayment, necessary support to maintain order and tranquillity in its State to defend it against any attack and to destroy the piracy which afflicts parts of the coasts of the kingdom".

"Article 3: Recognizing this protection, H.M. the King of Annam undertakes to pursue a foreign policy conforming to that of France and to change nothing of his present diplomatic relations".

The Peace Treaty concluded in Hue on 25 August 1883 stipulates: "Article first: Annam recognizes and accepts the protectorate of France, with the consequences of this mode of relations from the point of view of diplomatic law of Europe, that is to say France will preside over the relations of a l l foreign powers, including China, with the government of Annam, which can diplomatically communicate with the said powers, only through the intermediary of France". In the preliminary Convention of Tientsin on 11 May 1884, China undertakes:

"2. To respect at present and in the future, the treaties directly concluded or will be concluded between France and the Court of Hue" (Article 2).

In the Treaty concluded in Huế on 6 June 1884 between France and Annam, it is stipulated that:

"Article first: Annam recognizes and accepts the protectorate of Prance.

France will represent Annam in all its external relations. The Annamites in foreign countries will be placed under the protection of France".

Thus, what remained of the influence of China on Annam ended with the conclusion of diplomatic acts between France and Annam and between France and China itself. The government of the Qing itself undertook to respect all treaties reached or will be reached between France and Annam.

VI. THE SITUATION UNTIL THE END OF THE 19TH CENTURY

The situation can be summed up as follows:

- Until the signature in 1884 of the Treaty of protectorate by France and Vietnam, the latter had occupied the Hoàng Sa and Trường Sa archipelagoes without meeting the opposition of any power whatsoever. Max Huber said of the Palmas island: "The territorial sovereignty implies the exclusive right to exercise the State activities"(28). The sovereignty of Vietnam over the Hoàng Sa and the Trường Sa is unquestionable.

- It is important to affirm that the company Hoàng Sa exploited and managed the two archipelagoes. It is possible that the exploitation and the management of the Hoàng Sa archipelago was easier, the said archipelago being nearer the bases of departure of Đại Chiêm and the Sa Kỳ. The maritime zone of the Trường Sa being larger than of the Hoàng Sa (160,000 - 180,000 km2), the authorities had to create a second company called Bắc Hải belonging to the company Hoàng Sa, but in charge of the operation in the southern part and the region of Poulo Condore, which remains until now the traditional fishing zone of the inhabitants of the province Bình Thuận.


(Excerpt from LƯU VĂN LỢI book entitled“THE SINO-VIETNAMESE DIFFERENCE ON THE HOÀNG SA AND TRƯỜNG SA ARCHIPELAGOES” Chapters III, THẾ GIỚI PUBLISHERS,HANOI — 1996)