Historical and Juridical Title of VN Over Islands (Part.2)



THE HISTORICAL AND JURIDICAL TITLE OF VIETNAM - PERIOD AFTER 1884

By Luu Van Loi

I. THE NEW POLITICAL AND JURIDICAL BACKGROUND OF THE CONFLICT

After the establishment of the French protectorate in Vietnam, the Vietnamese, Indochinese, and international situation was marked by many events, the consequences of which directly influenced the problem of the two archipelagoes. The factors directly related to the study of this problem are as follows:

1. From 1894 onward, Vietnam directly depended on the French Ministry of Colonies; a Vietnam composed of Cochinchina, a colony, Annam and Tonkin nominally protectorates, in fact, is a colony of France. France represented Vietnam in all its foreign affairs primarily in the defense of sovereignty and territory. France represented Vietnam, but territorial sovereignty remained Vietnamese. After the August 1945 Revolution, the independence of Vietnam was proclaimed and the Democratic Republic of Vietnam was founded. France retook Cochinchina by force and signed the 6th March, 1946 preliminary Accord recognizing the DRVN as a free State having its government, its parliament, its army and its economy. Being a member of the Indochinese Federation and of the French Union, with regard to the Union of the three kỳ, the French government would accept the results of a referendum. However, the French side systematically violated the preliminary Accord and the cease-fire, and by so doing led to the 1946-1954 war. The 1954 Geneva Conference, convened the day after the fall of ĐiệnBiên Phủ, ended with the cessation of the Indochina war and the recognition of the independence, sovereignty, unity and the territorial integrity of Vietnam, which would temporarily be divided into two zones at the 17th parallel considered the provisional military demarcation line, with the North being entrusted to the DRVN and the South to the State of Vietnam. From then on, the US interfered more and more profoundly in the affairs of South Vietnam, thus provoking a war which would last until 30th April, 1975. In 1976, North and South Vietnam were reunified in a State – the Socialist Republic of Vietnam was founded and exercised its state functions all over the territory, the Hoàng Sa and Trường Sa archipelagoes included.

2. To prepare its attack against the SEA countries in February 1942, Japan occupied the Hoàng Sa and Trường Sa archipelagoes from 1939 onward. To settle post-war problems, including the problem of the Asian territories occupied by Japan, the leaders of the USA, the USSR, and Great Britain (F.D. ฑoosevelt, J. Stalin, and W. ChurChill) successively met in Teheran, Yalta, and Postdam. F.D. Roosevelt, W. ChurChill and Marshall Tchang Kaishek of the Republic of China met in Cairo in 1943 to determine a common platform for the Teheran Conference and published at the end of the summit a declaration (called the Cairo Declaration) saying only that after the war, Manchuria, Formosa, and the Pescadores would be returned to China. The silence of China at this summit regarding the Paracels and the Spratly archipelagoes is tantamount to an abandonment by China of the pretention to these two archipelagoes. The Cairo declaration, approved by J. Stalin on 30th November, 1943, was once again given confirmation by the USA and Great Britain in their proclamation of Postdam dated 26th July, 1945. It was also in Postdam that the USA, the USSR, and Great Britain agreed to establish in Indochina two zones of disarmament of the Japanese troops, with the 16th parallel as the border: the Northern zone being entrusted to the troops of the Republic of China, the Southern zone to the Anglo-Indian troops. On 28th February, 1946 China and France signed the Tchungking Accord under which China would be relieved by France in the disarmament of the Japanese troops and would pull out of Indochina.

Under the preliminary Accord of 6th March, 1946, the Franco- Vietnamese forces would ensure the disarmament of the Japanese troops North of the 16th parallel. The 8th September, 1951 Peace Treaty of San Francisco clearly stipulates that Japan will renounce all its rights, titles, and pretentions regarding Korea, Formosa, and the Pescadores of China, the Kuriles islands, a part of the Sakhaline island and the neighbouring islands of the Soviet Union, the islands of the Pacific under Japanese mandate, all the parts of the Antarctic resulting from any Japanese activities, and the Spratly and the Paracels archipelagoes. It was also at the Conference of San Francisco that the Soviet proposal on handing over the Paracels and Spratly archipelagoes to People s China was rejected by a nearly unanimous decision of the participants (46 out of ถ1 votes). The Chief of the Vietnamese delegation of the State of Vietnam, Trần Văn Hữu, affirmed the sovereignty of Vietnam over the Paracels and the Spratly archipelagoes without meeting any objection or any reservation on the part of any country.

3. When the empire of Qing was overthrown in 1911 by the Revolution of the year Tân Hợi, the Republic of China came into being. In 1949, the government of the Republic of China was defeated and had to retire to Taiwan. The People's Republic of China was founded. Taiwan, a Chinese province, considered itself inde pendent all the same. From 1956 onward, Taiwan occupied the Itu Aba island of the Spratly and considered the Xisha and Nansha archipelagoes Chinese land. The PRC affirmed and claimed its right over these two archipelagoes and effectively occupied the Xisha in two phases (1956 and 1974) and a number of islands and shoals of the Nansha archipelago in 1988. Politically different, the PRC and Taiwan resemble each other with regard to their pretentions on the Bien Dong. They both reclaim their rights on all the Xisha and Nansha and a maritime frontier called "Frontiers in 9 portions" drawn in spite of international law to secure 3,000,000 km2 of the Bien Dong, leaving to other riparian countries some 400,000 km.

4. The brusque change of China s attitude Until the end of the 19th century, China had never opposed the Vietnamese sovereignty over the Hoàng Sa and Trường Sa archipelagoes; more precisely, it had acquiesced this state of affairs. Once, it affirmed that the Xisha archipelago no longer belonged to it. This had to do with the end of the stories about the vessels Bellonna (German) and Imezi Maru (Japanese), which, transporting copper for English firms, wrecked around 1895-1896 in the Paracels. Their cargo of copper was later plundered by the Chinese, who brought it in junks to Hainan. At the request of the English insurance companies, the British Minister in Peking and the British Consul in Hoihow intervened to recover this copper, but the Chinese authorities affirmed in their answer that the Xisha did not belong to China, that they did not constitute an administrative unit of Hainan and that China had no responsibility whatsoever for the affair.

Early in 1907, the Japanese occupied the Pratas and thereby provoked a violent protest from the Chinese people. In order to save face and to calm the popular anger, the governor of the two Guang, Zheng Renjun, launched a lightning operation on some islands of the Xisha. Having poor knowledge of these islands, he began by sending two gunships to reconnoitre the area in April, 1909, because the Chinese, contrary to all that they had officially declared, had only vague information on Xisha. After receiving intelligence on these islands, at the end of May, 1909, Li Zhun was sent in his turn to the Xisha, with three gunships. After rapidly passing by some islands, he landed on the Woody island and returned to Canton. The document of the Chinese MFA of the PRC calls this expedition "a tour of inspection to reaffirm the Chinese sovereignty"(29).

Such is the truth about the expedition of Li Zhun, which had no other meaning than a brusque change of attitude of China vis-a-vis the Paracels. By a propaganda campaign, the Chinese authorities kept silent until 1921, the date when the Southern government declared the joining of the Xisha to the district of Yahsien (Hainan).

5. From the middle of the 19th century to this day, in the process of evolution of international law towards a modern and progressive juridical and political order, the maintenance of peace, the defence of sovereignty and the territorial acquisition of States have made positive , though insufficient achievements.

To enrich the rules of territorial acquisition

Until the end of the 19th century, the acquisition of a territory required an effective occupation followed by certain actions to show that one was the sovereign of the territory, although the two elements - occupation and exercise of the right of sovereignty – were not clearly and solidly defined.

The Berlin General Act of 1885 added two new rules: the necessityof actual occupation of the allegedly acquired territories and the necessity of informing the other States of that occupation. The rules bound only the signatory parties and applied only to Africa. The provisions of the Berlin Act was later abrogated by the Saint-Germain Convention of 10th September, 1919, reserve is made of the principle of commercial equality. However, this is a problem of universal scope. Therefore, the rules of the Berlin Act were applied in many non-African affairs. Many conclusions and decisions have moreover consolidated the principle of effectiveness, among which is the famous sentence of arbiter Max Huber in the Palmas island affair:

The preservation of peace, the guarantee of the sovereignty and the territory of the States, the affirmation of the principles of equality, friendship and cooperation among the States.

The UN Charter prescribes first of all that the objective of the World Organization is to spare humanity of the disaster of war, so it has stressed the principle of refraining from the use or the threat of force in international relations and the obligation of the States to settle their differences by peaceful means. The UN has, moreover, approved important resolutions which would serve as premises for a new juridical international order:

Conquest is no longer a legal mode of territorial acquisition by force. The Resolution 26/25 (1970) of the General Assembly explicitly stipulates that:

"The territory of a State cannot be the object of a military occupation as a result of the use of force inconsistent with the provisions of the Charter. The territory of a State cannot be the object of an acquisition by another State by means of threat or use of force. No territorial acquisition by the threat or use of force is recognized to be legal"(30).

With regard to the settlement of international differences, it stipulates that:

"Any State has the obligation to refrain from resorting to the threat or the use of force to violate the existing international frontiers of another State or as a means to settle international differences, including territorial differences and questions relating to the frontiers of the States"(31). Pursuing, with a firmer attitude, the efforts of the Convention of 18th October, 1907 of the Hague and other acts of the League of Nations, and of the interval of the two World Wars to promote the tendency to peacefully settle international differences, the UN Charter stipulates:

"Article 33:
1. 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 agreements, or other peaceful means of their own choice.

2. The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means". The 1992 Manila Declaration regarding the peaceful settlement of international differences has concretised this process.

The conclusion of the Convention of the UN on the Law of the Sea in 1982:

In the greatest multilateral act of the UN since 1945 until the present day, the Convention of Montego Bay has developed the 1958 Conventior of Geneve on the Law of the sea by broadening its content in all aspects through new provisions on the maritime zone, the continental shelf, the zone of high seas outside the jurisdiction of States. It gives new knowledge on the notion of islands, archipelagoes, continental shelf, the maritime zone around islands, the way to draw the maritime frontier, the delimitation of different zones of the sea and of the continental shelf, and raised in consequence the new factors to be taken into account when any question of settling international differences, or new problems of delimitation arise.


II. THE ADMINISTRATION OF THE TWO ARCHIPELAGOES BY FRANCE UNTIL ITS WITHDRAWAL FROM INDOCHINA

After the installation of the colonial regime in Vietnam, theoretically and effectively France had to defend the sovereignty of the Court of Huế over the two archipelagoes. However, at the beginning of the colonisation, it had to cope with internal and external incidents, both difficult and complex. Internally, there was the uprising of the whole nation, especially in Tonkin, the movement Cần Vương headed by King Hàm Nghi, the insurrections of Đề Thám, Tán Thuật, the movement of the Scholars, the campaign against taxes, the uprising of King Duy Tân, etc. Externally, France had to struggle against hundreds of thousands of the "Pavillions Noirs" (Black Flags) which the Court of the Qing had sent from the High region and Middle region to Tonkin, to settle the frontier question between Tonkin and the provinces Yunnan, Kouangsi, Kouangtoung, while desiring to maintain good negotiations to develop commercial relations with Peking, the construction of the railway line between Haiphong - Kunming and the opening of the consulates in Yunnan, Kouangsi and Koungtoung. In such a complex situation, the colonial authorities did not. understand China, nor the problems of Vietnam. Their priorities were the pacification of Tonkin and Annam, the expulsion of the "Pavillions Noirs", and the consolidation of the protectorate. That is why the question of Hoàng Sa and Trường Sa were given a secondary importance. For them, at that moment the pacification of the hinterland had to prevail over the remote islands. In 1899, Governor General Paul Doumer proposed to Paris the construction of a lighthouse on the island Hoàng Sa (Pattle) in the Paracels to assist navigation, but the plan failed because of the lack of funds.

When Hoang Sa was violated by Li Zhun, the Consul General of France at Canton, Beauvais, made the following comments: "... it would be easy for us with some research to find arguments to demonstrate our right and the irrefutable proofs of that right. But the thing was not worthwhile; it would be preferable perhaps, after carefully thinking over everything, to close our eyes. An intervention on our part is susceptible of causing a chauvinist movement to surge up which would do more harm to us"(32). And the French
authorities did not make any protest.

From the 1920s on, the fleet of the Indochinese Customs Service multiplied their patrols of the Paracels to combat smuggling. In 1925, the Oceanographic Institute of Nha Trang sent the trawler De Lanessan for reconnoitring the Paracels. Its director, M.A. Krempf was accompanied by other scientists such as Delacour, Jabouille... in charge of geological and biological studies, etc...Also in 1925, on 3th March, the Minister of War of the Court of Huế Thân Trọng Huề affirmed that the Hoàng Sa had long belonged to Vietnam and there was no question to be discussed about it. In 1927, the De Lanessan made a scientific reconnaissance of the Spratly.

In 1929, the expedition Perrier-Rouville proposed the erection of four lighthouses at the four corners of the Paracels (the Tri Tôn, North-reef, Lincoln and Bombay islands). Having received a demand from the Societe nouvelle des Phosphates du Tonkin regarding the exploitation of guano on the Hoang Sa, the Governor General of Indochina sent a note dated 17th December, 1928 to the Minister of the Colonies denouncing "the ever increasing megalomania of Chinese nationalism" and affirming clearly: "it is, therefore, high time for us to go on ahead and to affirm the rights that seem recognized by historical documents as well as by geographical realities"(33).

In his report, dated 22nd January, 1929, addressed to the Governor General, the Resident Superior of Annam, Le Fol, underlined the long affirmed rights of Vietnam, recalled the declaration of the Minister Thân Trọng Huề and deplored the negative attitude of the French authorities with regard to the act of Li Zhun. In 1930, the airplane la Malicieuse flew to Hoang Sa. In March, 1931 the Inconstant went to Hoang Sa in June, 1931, it was the turn of the De Lanessan, in May, 1932 the gunship Alerte went there as well.

From 13th April, 1930 to 12th April, 1933, the French Government sent units of the French navy to successively occupy the principal islands of the Spratly; Spratly Caye dAmboine, Itu Aba, the group of two islands, Loại Ta and Thị Tứ, and the dependent islets. On 21st December, 1933 the Governor of Cochinchina, M.J. Krautheimer signed a Decree joining the aforesaid islands and the dependent ones to the province of Bà Rịa. On 4th December, 1931 and on 24th April, 1932 the French Government lodged a protest against the Chinese Government for the fact that the then Government of Kouangtoung had the intention of putting out to tender the exploitation of guano on the Hoàng Sa. On 4th January, 1932 the French Government dispatched to the Chinese Legation in Paris a note affirming French sovereignty over the Paracels islands and proposed to China either a friendly settlement or an arbitrated solution. On 29th September, 1932 the Chinese Legation rejected the French point of view and refused the arbitration offer. On 24th July, 1933 the French Government informed Japan of the occupation by its naval forces the principal islands of the Spratly and Japan protested against that occupation. On 18th February, 1937 France sent a note to the Chinese Embassy in which it proposed again a friendly settlement of the difference or a solution by arbitration, China had no follow-up action. In October, 1937, the French authorities sent the principal engineer J. Gauthier to Hoàng Sa to study the site for the construction of a lighthouse, a base for hydroplanes, and the plan for the installation of a militia group.

On 30th March, 1938, Emperor Bảo Đại joined the Hoàng Sa archipelago to the province of Thừa Thiên (previously, they belonged to the province of Nam Ngãi). On 15th June, 1938 the Governor General of Indochina, Jules Brévié, created an administrative delegation for the Hoàng Sa islands. During the same year:

- Erection on the Hoang Sa island (Pattle) of a stele bearing the following inscription: "Republique francaise - Royaume d'Annam - Archipel des Paracels 1816 -ile de Pattle - 1938" (French Republic - Kingdom of Annam, Archipelago of the Paracels 1816 - island of Pattle - 1938).

- Construction of a lighthouse, of two meteorology posts on Pattle and Woody island (later inscribed by the World Meteorological Organization under the code number 48860 and 48859 respectively), of a TSF post on Pattle island of the Paracels, another TSF post on Ba Bình island (Itu Aba) of the Spratly island (Station Cochinchina).

- The dispatch in June of a militia unit to the Paracels. In 1939, Japan occupied the Spratly archipelago. On 4th April, 1939, the French Government protested against that occupation. On 5th May, 1939, Governor General Jules Brevie divided the Hoang Sa archipelago into two administrative delegations having their respective headquarters on the island Hoàng Sa (Pattle) and on the island Phú Lâm (Woody island). And the affair stopped here in view of the approach of the World War. The post-war period witnessed many incidents in Indochina and in the world that influenced the problem of the two archipelagoes:

- The Democratic Republic of Vietnam (DRVN) was founded;
- France recognized the DRVN and the Hồ Chí Minh Government; Later France made war against it and recognized the State of Vietnam and the Bao Dai Government.

• The Republic of China was designated to receive the surrender of Japan in Indochina north of the 16th parallel, but it handed this mission over to France by the 28th February, 1946 Tchoungking Accord, Since June, 1946, the Tchang Kaishek troops completely pulled out of Indochina.

- The troops of the Kouomingtang Government were defeated and Tchang Kaishek had to leave the continent to go to Taiwan. On 1st October, 1949, the Peoples Republic of China (PRC) was founded.

- On 8th September, 1951 the Peace Treaty with Japan was signed in San Francisco; it stipulated that Japan had to evacuate Mandchuria, Formosa, and the Pescadores without stipulating that the two archipelagoes (Paracels and Spratly) be returned to China. The Peace Treaty between Japan and the Republic of China signed on 28th April, 1952 also did not say anything about handing over the said archipelagoes to Taiwan.

France at that moment wanted to recuperate the two archipelagoes in question, which it had governed before the war, but it was in a weak position.

In the course of the 11th October, 1946 meeting, the Interministerial Committee on Indochina under the Provisional Government of France decided that it was important to affirm French sovereignty over the archipelago Hoàng Sa and to materialize their re-occupation by the construction of a meteorological post. General Juin, Chief of Staff of the National Defense, thought the construction of a military base on the Paracels useless: "On the contrary, it is in the greatest interest of France to prevent any ambition to occupy these islands by any foreign power, the islands that command access to the future Cam Ranh base, and guard the Cam Ranh-Canton-Shanghai maritime route"(34).

After the publication of the last draft of the Anglo-American Peace Treaty with Japan, on 12th July, 1951 the speaker of the French Ministry of Foreign Affairs welcomed the provisions of the draft and the refusal to give back the Hoàng Sa and Trường Sa archipelagoes to China.

"The Anglo-American draft Peace Treaty, and particularly the clauses relating to territories, corresponds completely to the French Government's point of view. The sovereign right of France over the Spratly islands and the Paracels has been determined"(35). In this spirit, from 20th to 27th May, 1946 on the order of Admiral Thierry d Argenlieu, High Commissioner in Indochina, the frigate Escarmouche made a reconnaissance of the island Pattle after the withdrawal of the Japanese, to assess the situation and to prepare for redress.

On 7th January, 1947, the Weikiaopou of Nankin announced that Chinese troops had retaken the Xisha; more precisely, the Woody island only. This occupation can in no way be interpreted as an act of reception of the Japanese surrender because after the conclusion of the 28th February, 1946 Accord signed in Tchoungking, the Chinese government had handed this task over to France. Moreover, by this date Japanese troops had all withdrawn from the archipelagoes Xisha and Spratly. By this occupation, China had encroached on the rights of Vietnam that France had to defend. On 17th January, 1947, the aviso Tonkinois was dispatched to Pattle island to demand the Chinese military pull out of Phú Lâm island (Woody island), but the latter refused. The French finally had to install themselves on Hoàng Sa island (Pattle).

In the meantime, Paris and Nankin negotiated to try to avoid a great confrontation, without obtaining positive results. On 4th July, 1947 the French MFA proposed to China either a friendly settlement or an arbitrated solution. China refused. For reason of failures in the
war against the communists, Taiwan also withdrew its small contingent from Phú Lâm island.
In April, 1949, prince Bửu Lộc, Head of the Office of Bảo Đại, affirmed at a lecture in Saigon the sovereignty of Vietnam vis-à-vis the Paracels(36).

During this period, though France always occupied the islands Hoàng Sa and Trường Sa, it felt it was in a delicate situation. Had there been a request of arbitration by the Hague Tribunal, the request would have been feared, which was logical, because the Bảo Đại Government would be a cosignatory to the request, which would be tantamount to the affirmation of its international personality. Moreover, France was afraid of the objective existence of the Việt Minh adversary, which could act upon the sentence of the Tribunal. As for China, it recognized the government of Taiwan, but also feared that the affair would some day lead to the participation of the Chinese communists, which would be tantamount to the recognition of the Mao Tsetung Government.

For all these reasons, during this period, Paris was hesitating and dared not take a firm attitude. In spite of that, it continued to occupy the Hoàng Sa and Trường Sa archipelagoes and to exercise its state activities.

After the signing of the Peace Treaty of 28th April, 1952 between Japan and Taiwan, the French Ambassador to Tokyo, Dejean, had contacts with a Vice-minister of FA, the Director of the Department of Treaties and particularly with M. Wajima, Deputy-chief of the Japanese delegation to the negotiations with that of Taiwan in preparing the draft treaty. All his Japanese interlocutors affirmed to him that Article 2 of the Japan-Taiwan Peace Treaty simply affirmed the renouncement of Japan already mentioned in the Treaty of San Francisco. Japan did not say anything about the juridical belonging then or in the future of these territories. If it had been so with regard to Formosa and the Pescadores, it was all the more reason for Japan's position with regard to the Paracels and the Spratly(37).

III. PERIOD FROM 1954 TO THE PRESENT DAY

According to the 1954 Geneva Agreement, the DRVN governs the zone north of the 17th parallel, while the State of Vietnam (later, the Republic of Vietnam - RVN) governs the zone south, including the two archipelagoes, Hoàng Sa and Trường Sa, pending the reunification of Vietnam through free elections. Withdrawing from Indochina to be relieved by the USA, France pulled out the totality of the French Expeditionary Corps, including the elements stationed in the Hoàng Sa. Before the arrival of the relief forces of Saigon, Peking occupied the eastern part of the Hoang Sa, and occupied the western part of the archipelago in 1974. Being conscious of their responsibilities vis-a-vis South Vietnam, the Government of Saigon, then the PRG (Provisional Revolutionary Government of South Vietnam) exercised all their state functions regarding the Hoàng Sa and the Trường Sa as well. In the Decree dated 22th October, 1956, making modifications to the territorial limits of the provinces and cities of South Vietnam, the President of the Republic of Vietnam (Saigon) joined the archipelago Trường Sa (Spratly) to the province of Phước Tuy. In his Decree dated 13th July, 1961, concerning the reorganization of Hoang Sa that belonged to province Thừa Thiên, he joined the Paracels to the province of Quang Nam and created here an administrative unit called commune Định Hải, district Hòa Vang, province Quảng Nam.

Under the 21st October, 1969 Decision of the Prime Minister of the Republic of Vietnam, the commune Định Hải is joined to the commune Hòa Long, district Hòa Vang, province Quảng Nam.
By Decision dated 6th September, 1973 of the Interior Minister of Saigon in implementation of a Decision of the Cabinet Council, the archipelago Trường Sa was joined to the commune of Phước Hải, district Đất Đỏ, province Phước Tuy.

By Decision dated 9th December, 1982 of the Council of Ministers of the Socialist Republic of Vietnam (SRVN), the territory of the archipelago Trường Sa belonging to district Đất Đỏ, province Phước Tuy was now called district Truong Sa of province Đồng Nai. On 28th December, 1982 the National Assembly of the SRVN decided to join the said district to the province of Phú Khánh (presently, Khánh Hoà).

On 9th December, 1982 the Council of Ministers of the SRVN raised the status of the archipelago Hoàng Sa and called it district Hoàng Sa belonging to Quảng Nam-Đà Nẵng province. In cases of violation of Vietnamese sovereignty on the two archipelagoes, the Government of the Republic of South Vietnam and the SRVN (from 1976 onward) opportunely raised their protestation and re-affirmed the sovereignty of Vietnam over these archipelagoes.

In April, 1956, the Government of Saigon sent troops to relieve those of France in the western part of the Hoàng Sa archipelago and condemned Peking for having occupied by force its eastern part. On 29th May, China declared to have rights to the Xisha, on 8th June, Minister for FA of the RVN (Saigon) Vũ Văn Mẫu rejected that declaration.

In 1959 South Vietnamese forces broke an attempt by Peking to land "armed fishermen" on Hữu Nhật island (Robert), Duy Mộng (Drumond), and Quang Hòa (Duncan) in the western part of the Hoang Sa, made "82 fishermen" prisoners and confiscated five armed junks.

In January, 1974, when the troops of Peking launched an important air and sea operation to occupy the western part, the Government of the RVN mounted an armed resistance on the islands Hữu Nhật (Robert), Quang Ánh (Money), Duy Mộng (Drumond), Hoàng Sa (Pattle) and immediately informed the President of the Security Council and the Secretary General of the United Nations as well as the governments with which it had established diplomatic relations, and the governments of the States having participated in the Paris Act on Vietnam dated 2nd March, 1973. It published, in addition, a white book about the historical and juridical titles of Vietnam regarding the Hoàng Sa archipelagoes.

At the 2nd session of the 3rd Conference on the Law of the sea in Caracas, the representative of the Saigon Government denounced the occupation of the Hoang Sa archipelago by the People's Republic of China. In March, 1974, at the Conference of ESCAP in Colombo, the Vietnamese representative re-affirmed the sovereignty of Vietnam over the Hoàng Sa and Trường Sa archipelagoes. At the Consultative Conference in La Celle-Saint-Cloud, the delegation of the RVN proposed to that of the Provisional Revolutionary Government of South Vietnam to issue a joint declaration to condemn the aggressive act of Peking, but the Provisional Revolutionary Government of South Vietnam wanted to make a separate declaration. And on 26th January, 1974, Võ Đông Giang, Deputychief of the delegation of the PRG to the Bilateral Military Commission in Saigon, made the following declaration regarding the occupation of the Hoàng Sa archipelago:

"Sovereignty and territorial integrity are sacred problems for every people.
With regard to the problem of frontiers and territories, there exist between neighbouring countries differences left behind by history. These differences, sometimes very complex, call for minute examination.

The countries concerned should examine this problem in a spirit of equality, mutual respect and as good neighbours, and should resolve it through negotiations"(38). In many international or regional conferences, the representatives of the Republic of Vietnam or the Republic of South Vietnam always defended the sovereignty of Vietnam over the Hoàng Sa and Trường Sa archipelagoes (Conference of WHO, ESCAP, UIT, ICAO, etc.). Since 1976 the SRVN has sent to the PRC note after note or made declarations to affirm the sovereign rights of Vietnam vis-a-vis the two archipelagoes.

In September, 1979, then in January, 1982 the MFA of the SRVN successively published two white books to reject the unfounded arguments of Peking regarding the two archipelagoes and to reaffirm Vietnamese sovereignty over the said archipelagoes. The SRVN also protested against the PRC, when the province of Hainan was created, for having included the Hoàng Sa and Trường Sa into that province.

Since 1988 after long preparation, Peking has begun with diligence its march on the Biển Đông. In February, 1988 a powerful naval force operated in the southern Bien Dong, beginning with the occupation of Đá Chữ Thập (the Fiery Cross Reef), then the seizure of other reefs of the Trường Sa archipelago, bringing about a confrontation with Vietnamese military forces and resulting in three Vietnamese transport means set aflame. A certain number of Vietnamese were killed or wounded, or taken prisoners.

Desiring at the same time to preserve these islands and shoals and to maintain security in the region, adopting an attitude of patience and constructiveness, the SRVN has three times proposed that the PRC find a negotiated solution to the conflict regarding the Trường Sa archipelago, the frontier questions, and the question of Hoàng Sa (Notes dated 17th and 23th March, 1988), and pending the negotiations, refrain from using force to settle the differences and to avoid any confrontation in order to prevent any aggravation of the situation (Note of 26th March, 1988).

It is regrettable that China has persisted in rejecting these proposals and has even permitted new acts of expansionism. It has attempted to enlarge the occupation in the Sea of Trường Sa and to construct steles on two new coral reefs in 1992. The facts are not limited here. In May, 1992 China s petroleum company (CNOC) - China National Off-shore Company - signed a contract with the US company Crestone Energy Corporation to authorize the latter to prospect in the Wan An Bei. According to the base lines for measuring the width of the territorial sea of Vietnam that the SRVN published on 12th November, 1982 and officially
informed the United Nations, what was called by Peking Wan An Bei was precisely the shoal Tư Chính (Vanguard Bank) situated on the continental shelf of Vietnam. Later on, the Chinese authorities explained that Wan An Bei was "the Chinese territory which formed an enclave in the Vietnamese continental shelf".

Thus, China has not only the conflict of the Hoàng Sa and certain islands of Trường Sa with Vietnam, but it has enlarged the conflict with the addition of this "enclave of Chinese territory" in the Vietnamese continental shelf.

From 1884 until today, in the region and the world, the political situations have witnessed profound changes. In Vietnam there have been two consecutive wars that have lasted 30 years. The American intervention followed the French colonisation, but France and the USA were in the same situation: having to defend the administration they created and supported, while being obliged to negotiate with the other belligerent party a solution to put an end to the war.

In view of the above recalled political and military factors, the struggle for the Hoàng Sa and Trường Sa archipelagoes has become more violent than ever and has experienced rapid developments since the 1980s.

1. Colonial period: France had the obligation of defending the sovereignty of the Hoàng Sa and Trường Sa archipelagoes on behalf of the Emperor of Annam. But it sometimes lacked dynamism, either because it wanted to take into account other interests in Franco-Chinese relations, or because it had become weakened after World War II in the Metropole, as well as in Indochina. It limited itself to defending its own interests, instead of taking care concur rently of the, defense of the interests of the Kingdom of Annam. However, in its hesitations, it always continued the occupation of the Hoàng Sa and Trường Sa archipelagoes and, more than once, publicly re-affirmed its rights regarding the said archipelagoes.

2. Post-colonial period: The Vietnamese governments, North ern or Southern, anti- or pro-French, anti- or pro-American have always been pre-occupied with the Hoàng Sa and Trường Sa archipelagoes and have manifested the same single position, even before the withdrawal of France from Vietnam. Having replaced France since 1956, the Government of the Republic of Vietnam, then together with the Provisional Revolutionary Government of the Republic of South Vietnam endeavoured to defend the sovereignty over the two archipelagoes, even after the occupation of the Hoàng Sa by China.

After the total liberation of Vietnam and its reunification, the Sino-Vietnamese relations increasingly deteriorated to become an armed conflict in February 1979, and a hostile policy lasting until the 1980s. This period was characterised by the consolidation of Vietnam's positions in the Trường Sa archipelago, and the intensified State activities by the SRVN while the PRC advanced in south of the Biển Đông and occupied part of the Trường Sa archipelago. The rivalry in the region of the Trường Sa fills the SEA States with anxiety because of the potential conflicts it is hatching.

3. China has produced many historical writings in an attempt to prove that the Xisha and the Nansha are Chinese territories. But its historical title is particularly weak, as none of these writings clearly show that China has occupied any island or shoal in either archipelagoes until the occupation by force of the Hoàng Sa and certain shoals of the Trường Sa. Its juridical title is unfounded and unconvincing for the simple reason that the absence of effective occupation cannot lead to the acquisition of sovereignty. On the Vietnamese side, since the occupation of Bãi Cát Vàng or the Hoàng Sa (comprising the Hoàng Sa and the Trường Sa presently) by the feudal State of Vietnam and the affirmation of its sovereign title, this title has been incessantly maintained and consolidated by the effective, continuous, and peaceful exercise of state functions.


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



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