Sovereignty over Paracel and Spratly Islands: Analyzing the Viewpoints of Vietnam and China

Tu Dang Minh Thu[1]
(Translated from Vietnamese by Le Duc)

Thoi Dai Moi
Journal of Research and Discussion

No. 11 – July 2007

When speaking of the Eastern Sea (South China Sea), no one does not think of two very beautiful names of Hoang Sa and Truong Sa. Unfortunately, these two names have become attached to things contrary to what is good, beautiful, harmonious, because these two distant archipelagos are the subject of a fierce conflict among the countries and territories in the region. The dispute has prolonged nearly a century but has not been resolved, but instead, intensifies day by day. It has now become a threat to peace in Southeast Asia.

At times explosive, other times calm, this dispute contains all forms of battle, from politics, diplomacy, to violence. The countries involved in the dispute also change depending on the time. At first, there was only France and China; after that, Japan and the Philippines also jumped in demanding their rights. After WWII, a defeated Japan withdrew from the dispute, France left Indochina, China had a change of government, the parties in the conflict now included South Vietnam, China, Taiwan, and the Philippines. After the reunification of Vietnam, the dispute continued between the Socialist Republic of Vietnam and the other three countries and territories. When the “new Law of the Sea” was born, the significance of the two archipelagos increased, as did the number of parties in the dispute. Malaysia, Brunei also demanded rights to the Truong Sa islands. With the new Convention on Law of the Sea, whichever country that controls these archipelagos not only controls the territorial waters around the islands but also the Exclusive Economic Zone and the Continental Shelf around the archipelagos. Therefore, the matter of determining sovereignty on the archipelagos of Hoang Sa and Truong Sa has become increasingly important.

I. The Progression of Dispute

The progression of the dispute will be outlined temporally through three periods [in Vietnamese history]: pre-French colonialism, French colonialism, and post-French colonialism.

1. Pre-French Colonialism

- Chinese and Vietnamese fishermen lived on the islands according to the season, but no one knows since what time.

- Beginning of 17th century: The Nguyen Lord organized exploitation of the islands. The Hoang Sa Company and the Bac Hai Company had the task of stationing on the two archipelagos 8 months each year to exploit the resources: catch fish, collect valuable resources on the islands, collect goods from sunken vessels.

- 1753: In Le Quy Don’s set of historical works Phu Bien Tap (Miscellanies on the government of the marches), it is told that there were 10 soldiers of the Bac Hai Company arriving on the Spratly Islands. 8 came on shore while 2 stayed on the boats to guard. Unexpectedly a storm arrived and the boats drifted to port Thanh Lan of China. The Chinese government investigated, and helped them to return home after finding out what happened.[2]

- 1816: Emperor Gia Long formally took possession of the islands, ordered for the flying of flag and taking geographical measurements.

- 1835: Emperor Minh Mang ordered building of shrine, placing of a stone tablet, staking the island, and planting trees. The Hoang Sa and Bac Hai companies were given more responsibilities: exploitation, patrolling, collecting taxes from people on the island, and guarding and defending the two archipelagos. The two companies continued their activities until France arrived to Indochina.

2. Era of French colonialism

- 1884: Hue Pact resulted in colonial rule of Vietnam.

- 9/6/1885: The French – Qing agreement was a friendship agreement, bringing an end to conflict between France and China.

- 26/6/1887: French – Qing agreement determined land borders between northern Vietnam and China.

- 1895 – 1896: La Bellona and Imeji Maru incident. The two ships La Bellona and Imeji Maru sunk near Hoang Sa, one sunk in 1895 and the other in 1896. Fishermen from Hainan collected bronze from these two sunken ships. The insurance companies of these two ships protested to China. Chinese government replied that they were not responsible, because Hoang Sa was not Chinese territory, and was also not An Nam’s.

- 1899: Indochinese governor Paul Doumer requested that France build a lighthouse but was not carried out because of the lack of fund.

- 5/1909: Chinese sent people to briefly survey the Hoang Sa archipelago before returning.

- 1920: Mitsui Busan Kaisha asked France for permission to exploit Hoang Sa. France denied the request.

- 1920: France controlled the islands and collected taxes there.

- 30/3/1921: South Chinese government declared the incorporation of Hoang Sa (which it called Tay Sa) into Hainan island. Since that time, dispute arose between France and China about juridical title over Hoang Sa. Dispute also arose since 1930 related to Truong Sa, which was French territory.

- 1925: Scientific explorations were made on the islands under the organization of Dr. Krempt, director of the Institute of Oceanography in Nha Trang.

- 8.3.1921: French Governor declared the two archipelagos of Hoang Sa and Truong Sa to be French territories.

- 1927: The ship De Lanessan docked on Truong Sa.

- 1930: Three French ships – La Malicieuse, L’Alerte, and L’Astrobale – took control of Truong Sa and flew the French flag on this archipelago.

- 1931: China ordered exploitation of bird fertilizer on Hoang Sa with the right being given to Anglo-Chinese Development Company. France protested.

- 1932: France formally declared An Nam had sovereignty over Hoang Sa. France incorporated Hoang Sa into Thua Thien province.

- 1933: Truong Sa was incorporated into Ba Ria province. France proposed to China to take the matter to international court, but China refused.

- 1938: France set up an ownership stele, built a lighthouse, meteorological station, and sent Vietnamese forces to protect Pattle Island.

- 1946: France withdrew after losing in WWII. France returned to Pattle, but withdrew because of engaging in war with Vietnam.

1946: Using the Cairo and Postdam declarations as a front, 4 Chinese warships came to the islands, and soldiers came ashore for the reason of disarming Japanese soldiers.

- 1947: China declared that it has taken Hoang Sa, but in fact, it had only taken over Woody Island. France protested and sent French-Vietnamese forces to the island. The two sides negotiated in Paris. France proposed an international arbitrator, but China refused.

- 1950: Chinese forces withdrew from Woody Island.

- 1951: At the San Francisco Conference, the Peace Agreement with Japan did not state clearly which country had sovereignty over the islands. The Vietnamese Prime Minister/Foreign Minister Tran Van Huu declared that Hoang Sa and Truong Sa were Vietnamese territories. None of the 51 countries participated protested. The USSR proposed that the two archipelagos be given to China, but it was rejected with 46 votes against, 3 votes for.

3. Post- French colonialism

- 4/1956: South Vietnam replaced France in controlling the islands. Only the two largest islands Phu Lam (Woody Is.) and Linh Con had been taken by China before South Vietnamese forces were able to send their troops to the islands, in accordance with the 1954 Geneva Accords.

Throughout this time, South Vietnam continued to assert Vietnamese sovereignty over the islands and carried out relevant administrative tasks vis-à-vis the archipelagos.

- 1/6/1956: Foreign Minister Vu Van Mau of S. Vietnam re-affirmed sovereignty of Vietnam over the two archipelagos.

- 1961: South Vietnam incorporated Hoang Sa into Quang Nam province.

- 1974: South Vietnam incorporated Truong Sa into the Phuoc Tuy province.

- 1974: China invaded Hoang Sa, took control of the islands, after overcoming S. Vietnamese naval forces.

- 1975: The Vietnam People’s Army replaced South Vietnam’s forces at Truong Sa.

- 1977: Vietnam declared its sea territories, including the archipelago.

During this time, a number of countries also took control of a number of islands on Truong Sa.

- 1988: China sent force to Truong Sa for the first time and a battle took place between Chinese and Vietnamese naval forces. Over 70 Vietnamese officers disappeared into the waters. China prevented the Red Cross from rescuing missing Vietnamese officers.

- 1989: China took another island.

- 1990: China proposed to collaborate in developing Hoang Sa.

- 1992: China seized more islands.

- 1994: A head-off took place between Vietnam and an exploration ship of China collaborating with Crestone Company

Presently, China controls all of Hoang Sa. As for Truong Sa, the dispute takes place among six countries and territories: Vietnam, China, Taiwan, the Philippines, Malaysia, and Brunei.

II. Analyzing Vietnamese and Chinese Claim

The claims that both Vietnam and China make are based on historical title, both asserting that they have exercised sovereignty since ancient times, as supported by historical evidence. In addition, China before, as Taiwan today, and other authors usually point to the French-Chinese Accord of 1887 to assert that the two archipelagos belong to China. Because China and Taiwan have agreed to speak with one voice in this dispute, it can be said that this is a reason given by China. Recently, since the dispute with the Socialist Republic of Vietnam, China has given a number of other arguments, which are pronouncements once made by the Democratic Republic of Vietnam. This paper will analyze the above three arguments.

1. Historical sovereignty

Both Vietnam and China claim that they discovered, occupied and exercised sovereignty since a long time ago. Let us attempt to analyze the arguments of both sides to determine whether they satisfy international criteria. First, we look at international law regarding possession of an unoccupied territory.

1.1. The possession of an unoccupied territory

Occupation of a territory, in order to be legal, must satisfy three criteria:

First is the criteria related to the territory being occupied: the territory must not have an owner (res nullius), or it has been abandoned (res derelicta).

Second, the possessor must be a country. Possession must be carried out by the government of a country or representative of the government of the country that desires to carry out the occupation. Private individuals cannot exercise possession.

Third is the method of occupation:

Occupation must take place over time. Before 1884, the right to occupation was decreed by the Pope. From the 8th to 15th century, the Pope divided land between Spain and Portugal. By the 16th century, when many other countries participated in the discovery of new land, the method of land division of the Pope was criticized, and a new method for dividing up territories was devised. Whichever country discovered a territory first had to right to take possession of it. Discovery here meant simply seeing the land, not necessarily setting foot on it; that was enough for ownership. Afterward, this criterion was seen as inadequate, and so another criteria was installed, which was symbolic possession. The country doing the possession must leave behind on the territory something symbolizing its desire to take possession: flag, stele, stakes, or anything that would symbolize the country’s possession. By the 18th century, this was again seen as inadequate to justify a country’s sovereignty. Consequently, by 1885, the Berlin Conference set out to resolve ways to divide up land in Africa, which included new more practical criteria for possession. In addition, the Berlin Conference also required that the country taking possession must inform other countries of its possession. The principle of true possession and exercise of sovereignty later became international convention and became the basis for modern international rules regarding possession of unoccupied territories. However, the factor of informing other countries is not an international practice, but only apply to cases in the confines of the Berlin Conference only.

Presently, according to international law, territorial possession must include factors both physical as well as non-physical. The physical factor is indicated through true possession and exercise of sovereignty on that territory. This means that the country taking possession must have regular presence on the territory possessed, and must have activities or behavior that contains national characteristic with regards to that territory. The exercise of sovereignty must be continuous. The non-physical factor means that the country must intend to truly possess that land. In order for the possession to be effective, both physical and non-physical criteria must be satisfied. The abandonment of territory also must satisfy two conditions: physical, which means there is no exercise of sovereignty over a long period of time, and non-physical, which is the intention to abandon that land. If the two conditions of physical and non-physical are met, then the territory may be seen as unoccupied territory.[4]

In addition to the method of occupation and effectivity, a country can gain possession through other methods such as secession, prescription, consolidation through historical title… The method of “consolidation through historical title” is applied if a country has made use of another territory for a long period of time without opposition from any other country.[5]

The above criteria have been applied regularly in international cases, such as in the disputes involved Palmas Island, Groenland Island, Minquier and Ecrehous Islands….

1.2 Historical sovereignty of Vietnam

It must be said that due to situation of war, many historical documents of Vietnam have been destroyed or missing. Vietnam has provided many historical and geographical documents to prove that it has discovered these two archipelagos for a long time, has occupied symbolically as well as truly, and exercised sovereignty over the two archipelagos through many emperors’ reigns through at least three centuries.

1.2.1 Discovered at least since the 15th century, and exercised sovereignty in the 17th century

Vietnamese fishermen lived on the islands and exploited them since ancient time. The earliest document that Vietnam has is Do Ba’s “Tuyen tap Thien Nam Tu Chi Lo do thu”, written in the 17th century. The term “Tuyen tap” (selected) indicates that these documents were collected from many previous sources. In this volume, Do Ba described these islands very accurately, and confirm that the Nguyen Lords established the Hoang Sa Company to exploi the islands since the 17th century. The description is as follows:
“At the village of Kim Ho, on both banks of the river, stand two mountains each containing a gold deposit exploited under government control. On the high sea, a 400-li long and 200-li wide archipelago (2) called "Bai Cat Vang" (Yellow sandbanks) emerges from the deep sea facing the coastline between the harbor of Dai Chiem and the harbor of Sa Vinh (3). During the South-West monsoon season, commercial ships from various countries sailing near the coasts often wreck on the insular territories. The same thing happens during the North-East monsoon season to those ships sailing on the high sea. All the people on board wrecked ships in this area would starve. Various kinds of wrecked cargoes are amassed on these islands.

Each year during the last month of winter, the Nguyen rulers send to the islands an 18-junk flotilla in order to salvage them. They obtain big quantities of gold, silver, coins, rifles and ammunitions. From the harbor of Dai Chiem the archipelago is reached after a journey of one-and-a-half day, while one day suffices if one embarks from Sa Ky.”[6]

According to historian Vo Long Te, even though Do Ba’s book was written in the 17th century (1686), the first paragraph of the two paragraphs above was quoted from Hong Duc’s volume Hong Duc Ban Do, which is the pen name of emperor Le Thanh Tong (1460-1497).[7] Consequently, Vietnam has discovered or known of these islands at least since the 15th century. The name of Bai Cat Vang indicates that these islands were known by Vietnamese who, though were not well educated, but knew much about the ocean and were able to exploit these islands long before the Nguyen Lords organized expeditions to exploit them. Vietnamese people had made their living on the islands for many centuries, and the government under the Nguyen Lord organized systematic exploitation of the islands since the 17th century. These factors, especially the exploitation by the government since the 17th century through many centuries, has established a historical title by Vietnam over these islands since that time.

1.2.2. Exercising Sovereignty in the 18th century: Le Quy Don’s historical work of Phu Bien Tap Luc (Miscellanies on the government of the marches)

Le Quy Don was a mandarin in the Le Dynasty, in charge of the Thuan Hoa, Quang Nam region. He wrote Phu Bien Tap Luc in 1776, in Quang Nam, and thus was able to make use of many documents of the Nguyen Lord government.[8] The following passage discusses about the Hoang Sa and Truong Sa archipelagos:

“…In the Quang Ngai Prefecture, beyond the harbor of An Vinh village, Binh Son district, there is a mountain called Re island, more than 30 dặm wide. In the front there is Tu Chinh ward, where people grow beans going towards the sea; beyond that, there is the Dai Truong Sa island, where there used to be many treasures. The Hoang Sa Company was set up to collect them. They must travel three days and nights in order to reach the islands, which is close to Bac Hai.”[9]

Another very long passage in Phu Bien Tap Luc needs to be cited because it provides many details related to how the Nguyen Lords organized systematic exploitation of the two archipelagos.

“…The village of An Vinh, Binh Son District, Quang Ngai Prefecture, is close to the sea. To the northeast (of the village) there are many islands and miscellaneous rock heads jutting out of the sea, totaling 130 altogether. From the rock heads out to the islands, it sometimes takes a day (by sea) or at least a few watches. On top of the rocks there sometimes are freshwater springs. Linking the islands is a vast strip of yellow sand of over 30 li in length, a flat and vast expanse where the water is clear and can be seen through to the bottom. On the islands there are countless swallows; the species of birds are in the thousands, and hang around even when they see people. On the banks there are many strange things. In terms of snails there are elephant mother-of-pearls which is as big as a mat, on its stomach there is a grain as large as the fingertip, the color is lucid, not like pearls. The shell can be made into ‘tam bai’, and can be used with lime to build houses. There is also ‘oc xa cu’….and ‘oc huong’. All these can be preserved and eaten…[more descriptions of other organisms on the islands].

Foreign vessels encountering storm take shelter on this island. In the past, the Nguyen had created a Hoang Sa Company of 70 men, made up of people from An Vinh village. Every year they take turns going out to the sea, setting out during the first month of the lunar calendar in order to receive instructions regarding their mission. Each man in the company is given six months worth of dry food. They row in five fishing boats and it takes them three days before they reach the islands. They are free to collect anything they want, to catch the birds as they see fit and to fish for food. They (sometimes) find the wreckage of vessels which yield such things as bronze swords and copper horses, silver decorations and money, silver rings and other copper products, tin ingots and lead, guns and ivory, golden bee-hive tallow, felt blankets, pottery and so forth. They also collect turtle shells, sea urchins and striped conches in huge quantities. This Hoang Sa Company does not come home until the eighth month of the year. They enter at Eo harbor, then go to Phu Xuan (present-day Hue) to turn in the goods they have collected in order to have them weighed and verified, then get an assessment before they can proceed to sell their striped conches, sea turtles and urchins. Only then is the Company issued a certificate with which they can go home. These annual collections sometimes can be very fruitful and at other times more disappointing, it depends on the year. It sometimes happens that the company can go out and return empty-handed. I have had the opportunity to check the records of the former Count of Thuyen Duc and found the following results: In the year of Nham Ngo (1702), the Hoang Sa Company collected 30 silver ingots. In the year of Giap Than (1704), 5,l00 catties of tin were brought in. In the year of At Dau (1704), 126 ingots of silver were collected. From the year of Ky Suu (1709) to the year of Quy Ti (1713) i.e. during five consecutive years, the company managed to collect only a few catties of tortoise shell and sea urchins. At one time, all they collected included a few bars of tin a few stone bowls and two bronze cannons.

The Nguyen Lords also established the Bac Hai Company. This company was not given a specific number of people; or how many people from Tu Chinh village and from Canh Dung village who were chosen to be part of the Bac Hai Company. Whoever volunteered to go will be given documents and instructions for their work.” [10]

This passage indicates that the exploitation activities by the Hoang Sa and Bac Hai Companies took lace from the 17th to the end of the 18th century. The activities of these companies were systematic, and on a regular basis, which was 8 months of each year. The sailors were recruited by the government, received benefits from the government, as well as work permits and instructions from the government.

Historical volumes such as Lich Trieu Hien Chuong Loai Chi, Dai Nam thuc Luc Tien Bien, Dai Nam Nhat Thong Chi, Hoang Viet Dia Du Chi, all have passages that relate that the Nguyen Lords organized the exploitation of the Hoang Sa and Truong Sa archipelagos, as well as other islands. The Thanh Chau Company were in charge of islands on the sea in the region of Quy Nhon, where they collected swallow nests. The Hai Mon Company carried out their activities on Phu Quy islands, while the Hoang Sa company were charged with going out to Hoang Sa islands. After that, the Bac Hai Company was established under the management of the Hoang Sa Company in order to work on the islands in the South, among which was the Truong Sa islands, Con Lon islands, and other islands in the Gulf of Siam that was under the sovereignty of Vietnam.”[11]

Especially important is the historical volumes entitled Lich Trieu Hien Chuong Loai Chi: Du Dia Chi (Settlements of matters by the successive dynasties )written by Phan Huy Chu (1782-1840). Phan Huy Chu’s works have been researched by Gaspardone. This historical collection was written at the beginning of the 18th century and consists of 49 books, now stored at the École Fransaise d’Extrême Orient.[12]

1.2.3 Official taking possession and exercise of sovereignty in the 19th century

Sovereignty continued to be exercised through the 19th century under the Nguyen Dynasty (which is the era following the rule of the Nguyen Lords).

The first Nguyen Emperor, Gia Long, affirmed historical authority of Vietnam even more by officially taking possession of the two archipelagos. In 1816, the emperor ordered the Hoang Sa Company and imperial naval officers to make explorations, take distance measurements, and planting flags on the Hoang Sa archipelago to symbolize the sovereignty of Vietnam. The following passage found in the volume Vietnam Thuc Luc Chinh Bien prove this point:

“In the year of Binh Ty, the 15th year of reign of Emperor Gia Long (1816), naval forces and the Hoang Sa Company made their ways up onto Hoang Sa in order to investigate and explore maritime distance.”

The taking possession of the archipelagos by the order of Emperor Gia Long was affirmed by Western documents.

M.A. Dubois de Jancigny wrote:

“…For over 34 years, the archipelago of Paracel, also known as Cat Vang or Hoang Sa, is a twisted group of islands composed of below and above water islands, which is very terrifying for maritime travelers, has been possessed by the Nam Ky people. We do not know whether they have erected buildings or not, but it is certain that Emperor Gia Long has decided to take this place as his own, because he himself has seen it necessary to take over this place, and in 1816, he has formally planted the flag of Nam Ky there.”[13]

Another article written by Jean Baptiste Chaigneau also noted the above matter:

“Nam Ky presently has an Emperor reigning over Nam Ky itself, Bac Ky, and a part of the Kingdom of Campuchia, a number of distant islands and the Paracel archipelago made up of uninhabited rocks both above and below water. It wasn’t until 1816 that the present Emperor took possession of those islands.”[14]

In 1833, the Emperor Minh Menh ordered a stele to be planted on Hoang Sa and a temple built. He also ordered for the planting of trees and stakes on the islands. In Dai Nam Thuc Luc Chinh Bien, Book 104, it is written:

“In the autumn month of August of year Quy Ty, the 14th year in the reign of Minh Menh (1833)…the Emperor declared: In the Quang Ngai Prefecture, there is an archipelago called Hoang Sa. From a distance, water and sky is of the same color; it’s impossible to tell whether it’s deep or shallow. Recently, vessels often wander into the shallow and meet calamity. Now, boats should be prepared so that by next year, there will be people to go there to erect shrine, plant stele, and plant many trees. Later on, the trees will grow tall and green, people will see clearly in order to avoid accidents. This is of benefit forever.”[15]

In the following year, Emperor Minh Menh ordered the Hoang Sa Company to go to the islands to make measurements for the task of map drawing. In Dai Nam Thuc Luc Chinh Bien (1834), book 122, it is noted:

“In the year of Giap Ngo, the 15th year of the reign of Emperor Minh Menh….the Emperor ordered the Company Commander Truong Phuc Si and over 20 sailors to go to Hoang Sa to make maps…”[16]

By 1835, the order of erecting shrine and stele was completed and was mentioned in Dai Nam Thuc Luc Chinh Bien, book 154:

“In the summer month of June, year At Mui, the 16th year of the reign if Minh Menh (1835)…A shrine was erected (on the islands of) Hoang Sa in Quang Ngai. Hoang Sa is a maritime territory of Quang Ngai. There is a place with white sand, filled with green trees. In the middle of the sandbank there is a well. In the South-West, there is a shrine, a tablet engraved with 4 words: “Van Ly Ba Binh”(1). As for Bach Sa, it has an area of 1,070 truong, formerly had the name of Phat Tu Son. On the east, west, and south bank, there are corals that stretch along the water surface. In the north, beside an island composed entirely of coral arising from the water, with area of 340 truong, 1 truong 3 meters high, on par with a sand bank, called Ban Than Thach. Last year, the Emperor ordered a shrine and stele to be erected there, but it could not be done due to strong waves and wind. Only now is the naval commander Phan Van Nguyen ordered to bring officers, workers, and sailors from the two provinces of Quang Ngai and Binh Dinh, transport materials out to erect the shrine (7 truong away from the older shrine). On the left side of the shrine a stele is erected; on the front side there is a windshield. The work must be completed in ten days.”[17]

The following passage in the same set of book indicates that the Nguyen Dynasty did not only concern about the exploitation of the islands, but also was conscious of the strategic position of the two archipelagos, and viewed them as defensive territories for Vietnam. As a result, a long-term plan was devised to reinforce these territories, as seen in the Dai Nam Thuc Luc Chinh Bien, book 165:

“In the year of Binh Than, the 17th year in the reign of Minh Menh (1836), spring, January 1…

Ministry of Public Work reported: the land of Hoang 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 Quang Nghia, and the two provinces of Quang Nghaa and Binh Dinh 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 commander of the navy, Pham Huu Nhat, 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 commander and overseer 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.” [18]

After that, the two archipelagos of Hoang Sa and Truong Sa were drawn into the maps of the kingdom of Emperor Minh Mang. The passages above prove that historical sovereignty continued to be maintained by Emperor Minh Menh. They also indicate that Vietnam’s sovereignty continue to be carried out by the Nguyen emperors. The Hoang Sa and Bac Hai companies were given more responsibilities: patrol, make measurements for the islands for map drawing, make explorations of the geography, draw maritime routes,…These companies also had the responsibility to collect taxes from people living temporarily on the islands. [19]

The two companies of Hoang Sa and Bac Hai were active until the period of France’s invasion of Vietnam. At least since the time of the Nguyen Lords in the 17th century (and perhaps since the 15th century or before), through the various reigns of Nguyen emperors over three centuries, these two companies carried out many activities of exploitation, administration and guarding the archipelagos. The Nguyens were also conscious of its international responsibility since that time and carried out plantation of trees on the islands to help vessels from being sunken and stuck in shallow waters. Clearly these are executions of sovereignty by a country on its own territories.

Therefore, Vietnamese sovereignty was established through two complementary methods: (1) historical title beginning with the use and possession of an unoccupied territory over a long period of time by the Nguyen Lords in the 17th and 18th century (consolidation par titre historique), and (2) sovereignty beginning with the formal possession and execution in a continuous manner under the Nguyen emperors in the 19th century (prise de possession, occupation et effectivite). In reality, establishment through the first method is sufficient to determine title by Vietnam, and therefore, Vietnam would have historical title since the 18th century. This title was then reinforced when the Nguyen emperors officially took possession of the islands. The Hoang Sa and Bac Hai companies did not stay constantly on the islands because the conditions did not permit such stay. However, international regulations have been lenient in this aspect, not requiring a constant stay on the islands by the country taking possession. In the Clipperton case, France only ordered a warship to investigate the island without placing any administrative agency to be active regularly. International Arbitrator decided that this was enough to be seen as executing sovereignty, because the conditions on the islands were not permissive of living on a constant basis on the islands. [20] In Vietnam’s case, even though not living on a constant basis on the islands, the Hoang Sa and Bac Hai companies remained on the islands 8 months of the year until the wind directions began to change, which was when the storm season arrived forcing them to return home for 4 months. They returned in the first month of the year and stayed for 8 months each year in this manner. With the conditions at that time, boats from other countries, including China were fearful of coming to the islands, while Vietnam ordered officers to be stationed at the islands 8 months each year. This is already surpassing the criteria determined by the Clipperton case, and more than sufficient to see that Vietnam had possessed the two archipelagos since the time of the Nguyen Lords (17th century).

1.2.4. China says that the islands in Vietnam’s maps (Map of Unified Dai Nam) is not Xisha and Nansha of China because the maps show the islands too close to the mainland. [21]

It must be said that the technology of measuring and drawing maps, and perception about distance and time in history are not the same as today. The Chinese authors themselves confirmed this aspect. [22] The matter of determining islands being disputed is not new, and has been presented in many cases. [23] This issue will also put forth by China in section 1.3 of this paper. In any case, in Vietnam’s situation, one only needs to look at the map to see that there is no confusion between Hoang Sa, Truong Sa, and other islands along the sea, when the islands are drawn, because the islands along the shore such is Re island, are also drawn on the map. They are drawn as close along the shore. Therefore, we can conclude that the islands in which the Vietnamese map indicates as Hoang Sa and Van Ly Truong Sa are Hoang Sa and Truong Sa. This method of thinking was applied in the Palmas case. The map drawer did not have accurate perception of distance and proportion needed when drawing on paper, leading to the distance being drawn shorter than in reality.

Even the distance between the two archipelagos of Hoang Sa and Van Ly Truong Sa was reduced, so that in the first look, one would think that these were but one archipelago. However, many things drawn from accounts in Vietnamese history as well as maps of that time, prove that these were not one archipelago.

(1) On the Map of Unified Dai Nam, there is clear notation of two archipelagos: Hoang Sa and Van Ly Truong Sa.

(2) The Vietnamese history and geography books mention up to 130 islands. This number is not consistent with the Hoang Sa archipelago, or Truong Sa archipelago, if accounting each individually. However, if we combine the two archipelagos, the number of 130 is accurate. [24]

(3) If we compare the maps: Map of Unified Dai Nam (no. 1), the magnified map taken from Map of Unified Dai Nam (no. 2), the Times Atlas of the World (abbreviated as Atlas, no. 3 and 6), the magnified modern map of Hoang Sa (no. 4), and map of Truong Sa (no. 7), we will see the following;

- The shape of the archipelago on Map 1 is not consistent with that of Hoang Sa in particular. The shape of the Hoang Sa archipelago is circular, comprising of two Crescent groups, as the name indicates. Behind the Crescent group is the Amphitrite group in an arch shape. In addition there are other scattered islands surrounding the two main groups (see map 3 and 4). In the meantime, if we see map 2, we will find that there is one archipelago in an elongated manner with the middle section being narrowed, which is completely not like the shape of Hoang Sa. The top part of this string of islands has a shape that looks like Hoang Sa (see section A to B on the map, marked by the author for clarity). But the bottom part of the string has an elongated shape spreading out (section B to C), which doesn’t look like any section of Hoang Sa as we can see in map 3 or map 4. This section is definitely not Hoang Sa. According to map 6, between Hoang Sa and Truong Sa there are no other islands, especially one that has an elongated string shape. Therefore, the bottom half of the string of islands drawn in map 2 is none other than Truong Sa.

- The Map of Unified Dai Nam (Map 1) indicates that the string of islands spread all the way from Quang Nam to Cam Ranh, the lowest island on the map is situated on the sea beyond Cam Ranh and Khanh Hoa. While the map of Atlas indicates that Hoang Sa is situated on the sea beyond Quang Nam, with the southern most island being Triton lies parallel to Quang Nam province. In Map 2, the southern most island to the west in the A-B group is parallel to Dai Cat (called Dai Chiem in Do Ba’s map), which lies parallel to Quang Nam. Therefore, the above mentioned island is Triton (indicated as X by the author in map 2). If that’s the case, then how do we explain the string of islands in the second half of Map of Unified Dai Nam, beginning in Quang Nghia (Quang Ngai on Atlas) and stretching to Cam Ranh? The Hoang Sa islands do not stretch to Khanh Hoa or Cam Ranh Bay. If we look at Atlas map, we will see that parallel of Phan Rang province, near Cam Ranh Bay (see Map 6), is the island of Thitu of the Truong Sa archipelago: Northeast Ca, Southeast Cay, South Reef, and West York Island, all are situated on the sea, similar to the distance between Khanh Hoa and Cam Ranh (see Map 7).

- Looking at the Map of Unified Dai Nam (map 1), there are 4 possible explanations:

a) The Hoang Sa and Bac Hai companies did not know of Truong Sa and only Hoang Sa was drawn.

b) The Hoang Sa and Bac Hai companies were active in Hoang Sa and Truong Sa. The map drawer wanted to draw both archipelagos of Hoang Sa and Truong Sa, but due to inadequate technology, the features were drawn closer than reality.

c) The Hoang Sa and Bac Hai companies were only active in the north part of Truong Sa, which is Northeast Cay, Southeast Cay, South Reef, and Thitu; and due to inadequate technology, the map drawer drew those islands as being close to Hoang Sa.

d) The Hoang Sa and Bac Hai companies were active in the above mentioned islands and the islands to the south, i.e. Xubi Reef, Loaia Island, Itu Aba Island, Great Discovery Reef, Spratly Island,… but due to inadequate technology, these islands were drawn as being close to Hoang Sa.

Based on mentioned data, the first explanation (a) may be eliminated first, because the number of islands, the shape of Hoang Sa, its location compared to mainland, all these details as drawn on Map 1 and 2 are not consistent with reality as seen in map 3 and 4. We cannot think that due to poor technology that the map drawer of Unified Dai Nam stretched Hoang Sa all the way down to Cam Ranh. In Dai Nam Thu Luc Chinh Bien, book 165, it was clearly said that the purpose of the expeditions of Hoang Sa and Bac Hai were to map the travel routes to each island, and determine the exact location of each island compared to the mainland provinces. “Must determine clearly which port is the way to each island. The way must be estimated in ‘dặm’.” [25] Therefore, the map drawer cannot be so mistaken as to think that the southernmost island of Hoang Sa is parallel to Cam Ranh. The third explanation (c) does not explain the shape of the string of islands on Map 1. The second (b) and fourth (d) explanations seem most accurate because they can explain the shape of the islands in Map 1, the position of the islands parallel to Khanh Hoa, Cam Ranh. The shape of the string of islands in the C-D_ section makes us lean towards explanation (d). However, explanation (c) may also be applied if we believe that the Hoang Sa and Bac Hai companies knew of all or most of the islands in the Truong Sa archipelago, but were able to draw of the Western islands when putting them onto the map. This way would be consistent with the number of 130 as mentioned in the above history books. In addition, Dai Nam Thuc Luc Chinh Bien also indicated in the Ministry of Public Works report that the archipelago was very vast, so only a limited number of islands were drawn. The report also admitted that the map was not drawn accurately.

“The Hoang Sa archipelago, on the frontiers of our country, is an important strategic point…Groups of people have been sent to take measurements and draw maps, but because the archipelago is extremely vast, only one island has been drawn on the map, and even that is not accurate and detailed as desired…” Therefore, the report suggested that the Emperor ordered for people to go to the islands annually: “We should send groups of people to the islands annually in order to investigate the archipelago thoroughly…” [26]

In the map, Truong Sa is drawn closer to Hoang Sa than in reality because technology at the time was poor, not able to make good proportions on paper. Chinese and Western maps of the time also had this defect. Moreover, the location of the archipelagos was on the same longitude of 111 degrees; [27] the Truong Sa archipelago lied a little more to the south east. Therefore, in reality, they were not so far apart. At that time, people did not have accurate perceptions of distance and proportion that must be adhered to when drawing maps. Therefore, it is understandable why the two archipelagos tended to be drawn closely together. Anyway, explanations (b), (c), or (d) all prove that at least Vietnam had sovereignty over the Truong Sa archipelago.

The ancient Western maps also did not distinguish between Hoang Sa and Truong Sa, and so drawn the two together as Hoang Sa. One example is the map of Van Langren, 1595, Les etablissement et point de penetration europeen en Extreme Orient au 18e siecle (Map 8 and 9).

Before the reign of Minh Mang, Hoang Sa and Truong Sa were considered a single archipelago, and thus was called Hoang Sa, sometimes called Van Ly Truong Sa. But after the expeditions were ordered by Emperor Minh Mang to take measurements and make investigations of the two archipelagos, maps drawn thereafter (i.e. Map of Unified Dai Nam), made clear notations of the two separate archipelagos. Looking at map 2, we will see the two groups A-B, and B-C separately with separate names (see Map 5).

Therefore, we can conclude that Vietnam executed sovereignty on both archipelagos of Hoang Sa and Truong Sa. This would explain the appearance of the Bac Hai company, which was ordered to exploit and administer Truong Sa, Con Lon, Ha Tien region,…(Phu Bien Tap Luc, book 2). One might wonder why the company would be called Bac Hai (North Sea) when its responsibility was in Truong Sa, Con Lon, Ha Tien, which were located in the south. Historian Vo Long Te explained that according to Sino-Vietnamese, Bac Hai can also mean “very distant”. Therefore, “Bac Hai” may be understood as a very distant sea. [28] A second way to explain the name of Bac Hai is that this company administered not only the islands to the north but also those in the south. In Phu Bien Tap Luc, it is said that the Bac Hai company were active “…in the North Sea, in the islands of Con Lon, Cu Lao, Ha Tien region and Con Tu…”. [29]

According to this theory, it may be understood that the Hoang Sa and Bac Hai companies complemented each other instead of dividing the sea between them. According to Phu Bien Tap Luc, the division has to do with the kinds of product exploited: the Bac Hai company seemed to collect only sea products, while the Hoang Sa company collected goods, gold, silver…from sunken vessels.

Another comment to be made is that Truong Sa lies near Con Lon island. If the Bac Hai company or Vietnamese fishermen had carried out activities on this island for a long time, would they have not known about Hoang Sa as well? This is the less probable since Vietnamese boats at that time were a powerful force and were praised by Western explorers. Gentil de la Barbinais noted in Nouveau voyage autour du monde (1738): “Even though Vietnam at this time attacked or defended mostly on the mainland, their use of naval force was more great, and can be said the most excellent. The Vietnamese king has 150 boats. In a recent exhibition of boats recently taking place in 1678, there were up to 131 boats….”

1.3 Historical Title argued by China

China also makes use of the argument of discovery and execution of sovereignty on the two archipelagos of Hoang Sa and Truong Sa.

1.3.1 Discovery

China asserted that it has discovered the two archipelagos at dispute since the Han Dynasty, in 206 B.C. However, there is a Chinese author that affirms that the earliest document recording Chinese activities on these islands took place during the Song Dynasty (13th century). [31]

China has supported its position with many passages taken from its history and geography books. However, the reality shows that what has been put forth by China, only describes the two archipelagos as things that lie along the travel route through the Eastern Sea only. Moreover, the passages that have been used as evidence before the 13th century do not state which islands, but only speak of the South China Sea. Only passages since the 13th century mention names of islands, but there is no passage that mentions the names Xisha and Nansha. Many points taken from the passages mentioned, moreover, indicates that Wanlishitang which China says is Nansha, in reality, is not Nansha but is another island.

a) History books before 13th century

- The book of Yi Wu Zhi (period of the three kingdoms) states as follow: [32]

“There are small islands, hidden rocks, and sandbanks in the South Sea; there, the water is shallow and filled with magnet stones…” These descriptions are very general, only mentioning that “there are small islands”, without stating clearly which islands.

- The book of Zuo Zhuan from the Spring and Autumn period records as follows: [33]

“The glorious reign of the Zhou Dynasty overcame the barbarians in order to make the South Sea (island) a possession of China…”

The word “island” was inserted in parenthesis by the author Jian-Ming to indicate that “South Sea” referred to “South Sea islands”. But the original text in Chinese only mentions “South Sea” not “South Sea island.”

b) History books since the 13th century

- The book of Chu Hien Chi (13th century) records: “In the East of South Sea is Thien Ly Truong Sa and Vạn Lý Thạch Đường, and beyond that is eternal ocean vastness…” [34]

- The book of On the Sea from the Ming Dynasty records: “Van Ly Truong Sa lies to the southeast of Vạn Lý Thạch Đường …” [35]

- Even the 19th century Chinese historical documents, in the reality of Vietnam’s Nguyen Lords’ possession and execution of sovereignty over the islands, only describe these islands as accidental things seen along the travel route through the Eastern Sea by Chinese vessels. Moreover, there are documents that admit in a matter of fact manner of a relationship between these archipelagos with Vietnam, if not to say that, they admit these islands as the frontier borders of An Nam. For example, the author of the book “On the Sea” (1829-1842) writes:

“The outer travel route is connected to the inner travel route by Van Ly Truong Sa located in the middle of the sea. The length of the archipelago is tens of thousands of “dặm” It is the curtain of outer defense of An Nam”. [36]

From this, we can make the following observations about the historical evidence about discovery rights of China:

There is no document that mentions the two names of Xisha and Nansha, and there is no book that speaks of China’s title over these two archipelagos. [37] The history and geography books of China mention a great number of names, including Qianlichangsha, Wanlishitang, Quianlishitang, Jiurulouzhou, Qizhouyang, Zishousan. Now, China says all these names refer to Xisha and Nansha. Therefore, in order to determine the validity of these historical evidence, there needs to be experts to examine and determine to see if these names in fact refer to Xisha and Nansha as China says.

1.3.2 Execution of sovereignty

Data that China and Chinese authors put forth to prove execution of sovereignty on the two archipelagos include: investigations, expeditions, and artifacts found on the islands.

Investigations and expeditions
The majority of the articles written about investigations and expeditions make assertions without providing any concrete historical documentation.

* Before the Yuan Dynasty

The following passage is taken not from any history book, but from a Chinese government official, professor Wang Hengjie of the Center of Ethnic Minority, in 1991, based on the artifacts dug up on Xisha to conclude that there were expeditions carried out by the Zhou Dynasty on these islands:

“The Zhou government during the Spring and Autumn period not only conquered the barbarians in the South, but also organized expeditions on the islands of the South Sea to make them land of China…” [38]

This is only the conclusion of a government official in 1991, not an objective history book. If there were indeed expeditions and other activities, why were they not recorded in Chinese history books, similar to what had been written in Vietnamese history books? China prided itself in having advanced culture and other ethnic groups were “barbarians”, then why didn’t it know to record activities of the government into history books, if such activities really took place?

Shen wrote in the book Hau Han Thu: Chen Mao was appointed top mandarin of Jiaozchi and there were “investigations on (the islands of) the South Sea”. He wrote in quotations the word “xing bu Zhanghai”.[39]

This passage indicates that there is no place that refers to Xisha and Nansha. Moreover, the word “island” is arbitrarily inserted by the author, since the original Chinese text which he put in quotation (xing bu Zhanghai) does not contain the word “island”, which means that investigations were made of Zhanghai, i.e. South Sea, only.

Shen also writes that the book of Nanzhou Yiwu Zhi tells of naval officers during the Han Dynasty making expeditions from Malaysia returning to China. Then he quotes from Nanzhou Yiwu Zhi: “going by boat to the north east, one encounters many small islands, hidden rocks, hidden sandbanks, making their clear appearance on the South Sea. Here there is shallow water and many magnet stones.” [40] Consequently, in Nanzhou Yiwu Zhi, we can see that there are no expeditions on the islands of Xisha and Nansha, or going about these islands. It is only stated generally that the boat goes through the Eastern Sea, and having expeditions on Malaysia, Borneo.

In another place, Shen writes that the local government under the Tang Dynasty executed sovereignty over Xisha and Nansha by sending vessels to patrol the sea around these islands. To prove this point, the author made use of the General Record of Quangdong written by Hao Yu-lin. Here it is written that by the order of the mandarin responsible for South Sea matters at that time, patrols and investigations made of South Sea (xing bu ru hai). [41] Here as above, Shen does not quote any passage from the General Record of Quangdong that recorded these events, and therefore, we do not know what exactly these passages said.

Only four words were quoted “xing bu ru hai”. If this is quoted from the history book, it only states that there were investigations made on the South Sea (if in fact the South Sea, because we are not sure whether this is the South Sea or some other sea).

Even if these investigations did take place, it is only stated generally to had taken place in the South Sea, not specifically around that of Xisha and Nansha. And if in fact, it was the South Sea, this is a vast region. How can we be sure if they took place in the area of Xisha and Nansha? And if it did take place, was the purpose to make investigations as a territory possessor or to generally investigate the sea? Does the original text of the book referred to by Shen mention patrols or in fact simply going through these areas?

In another place, Shen affirmed that the two archipelagos were placed under the administration of Qiongzhou municipality (Hainan today), but does not provide any historical evidence, only a footnote that refers to a Chinese government document in 1992. [42] Nevertheless, even if China incorporated the two archipelagos into Hainan, this act is not sufficient to establish juridical title according to international law.

China also espouses that the fact that artifacts were found on the islands indicate that Chinese people had lived on these islands. Artifacts dug up from Xisha such as pottery, vases, and other artifacts indicate that since the 5th century, Chinese people have lived and made their living on the South Sea. [43] From this, China concludes that because there were Chinese living there, China has sovereignty.

However, international law does not accept sovereignty simply because there are people living on the land. On the islands there are many groups of people living depending on the season, including Vietnamese people, not just Chinese. Moreover, private individuals do not have the right to possess territories.

* From the Yuan Dynasty until the present

China argues that it has sent an astronomer to the island to observe and take measurements. [44]

- The expeditions mentioned during this period were in fact trips to other regions such as Java, and not Xisha or Nansha.

- The passage used to prove of trips to Xisha and Nansha are taken from Yuan Shi as follows:

“…The boat goes through Qihou Yang and Wanlishitang, parallel with Jiaozhi and Zhangcheng,…they stepped onto the islands such as Hundun, Dayang, Ganlan, Jialimada, and Julan. They stationed here and cut down trees to make small boats…”

The author explains that Qizhou Yang and Wanlishitang are Xisha and Nansha, and Jialimada as Borneo today [45]. However, this point contradicts with the passage quoted from Hai Lu:

“Van Ly Truong Sa lies to the southeast of Vạn Lý Thạch Đường.” [46]

Based on this quote from Hai Lu, if we were to accept the two names as referring to Nansha and Xisha, then Van Ly Truong Sa has to be Nansha, while Vạn Lý Thạch Đường has to be Xisha. However, the book of Yuan Shi states that Vạn Lý Thạch Đường (Wanlishitang) is Nansha, and Qizhou Yang is Xisha. In the end, we do not know which is Nansha, which is Xisha. If we combine the two quotes above: “To the east of the South Sea is Van Ly Truong Sa and Vạn Lý Thạch Đường,” then Vạn Lý Thạch Đường is perhaps Macclesfield Bank. Marwyn Samuels also thinks this way (see Marwyn Samuels 18-19, Note 31).

Another point that perhaps points to Wanlishitang as in fact Macclesfield Bank, is that the passage taken from Yuan Shi: “…The boat goes through Qizhou Yang and Wanlishitang, parallel with Jiaozhi and Zhangcheng,…”. If we look at the order of the travel route, Wanlishitang cannot be Nansha, but is Macclesfield Bank because the boat cannot go through Nansha before going by Jiaozhi. Moreover, this passage indicates that the boat only goes through Quizho Yang and Wanlishitang; there is no place stating that they stepped onto Xisha and Nansha (assuming we accept Qizhou Yang and Wanlishitang as Xisha and Nansha).

Another passage taken from the Abridged Records of Islands and Barbarians by Wang Da Yuan which the author asserts as a famous seafarer during the Yuan dynasty states:

“The beginning of Shitang is in Chaozhou. It is twisted like a long snake lying on the sea, stretching close to many countries; it is called by the people as Wanlishitang. In my estimate, it is under 10,000 li…We have been able to determine its branches. A branch stretches to Java, another to Boni and Gulidimen, and another stretches to the western side of the sea, to Kunlun…If one desires safety, it is better to avoid it, because it is very dangerous here.” [48]

This passage also says nothing about China making patrols around the islands or making expeditions onto the islands. On the contrary, the archipelago is described as a beast, some of which is terrible and should be feared and avoided. If one was describing one’s own territories, such strange and unfamiliar words would never be used.

China also assert that under the Ming dynasty in the 15th century, an explorer Cheng Ho went through the sea 7 times, and upon his return, put Hoang Sa and Truong Sa onto the map. [49]

However, these trips did not have any act of taking possession of the above mentioned archipelagos.[50] These trips were not expeditions meant to take possession but to explore in order to know the geography, look for economic means, and show off China’s might with countries in the region which were vassals of China.[51]

Samuels concluded that even then, the islands were not paid attention to by China. [52]

In order to conclude the section of “historical title of China”, we can say that the passages written before the 13th century only proves that Chinese boats went through the South Sea. These documents do not mention the names of any of the two archipelagos. The first documents that mention names were written towards the end of the Yuan Dynasty and during the Song Dynasty (13th century). However, the documents mention Thien Ly Truong Sa and van Ly Thach Duong – no one is sure if these are Xisha and Nansha or not, especially Van Ly Thach Duong which is said to lie to the east of Hainan island. This is certainly not Nansha, but perhaps Macclesfield Bank. Either way, these documents only prove that the Chinese boats did pass by and coincidentally saw these islands on its route through the Eastern Sea. There is no word that indicates that China ordered boats to make patrols around the islands as owner of the islands in order to guard it as national borders. There are also no statements to prove that China organized expeditions on the two archipelagos of Xisha and Nansha, but only mentioned of conquering JiaoZhi, making expeditions in Malaysia, Borneo, and Java.

According to international law of ancient time, seeing the islands without stepping onto them is enough basis for title due to discovery. However, this criteria was applied to Western countries in history who went out to explore new land. China, however, only passed by, coincidentally saw the islands, never took possession, never saw the islands as its territory, only centuries later, after another country had possessed it, turned to claim that it had discovered the territory. In this case, can the act of coincidentally seeing the land without thinking to possess it be seen as discovery in legal terms? How can one claim discovery right when the non-physical factor which is the will to discover new land and the desire to occupy that land does not exist? The case of China is that it “knew” of the land not that it discovered the land.[53]

Supposing that China had discovery rights, this would only be initial rights (inchoate title), because after that China never possessed the islands, even symbolically, never stepped onto the islands, and never executed sovereignty. In short, China never saw the islands as its own. International courts has judged numerous times that the discovery rights must be completed by the act of possession over a reasonable period in order for it to be effective. [54]

Professor Marwyn Samuels analyzed the attitude of China at that time. According to Samuels, Chinese policy at the end of the Ming Dynasty and during the Qing Dynasty did not concern much with the sea but with guarding its mainland, the region of SinKiang, Mongolia and the northern borders. Therefore, its naval forces was very poor. [55] Under the Yuan Dynasty, the naval force was strong (14th century), but even then, China did not pay attention to the Eastern Sea, and did not intend to possess the islands. [56] On the contrary, the boats even feared them and avoided them for fear for rocks and shallow water which had sunken many vessels of other countries. Chinese sailors of that era had a proverb that was passed down from generation to generation: “Going out one fears That Chau (which China calls Xisha today), on the way back one fears Colon.” [57]

With this mentality at that time, how can China see these islands as its own and would explore and patrol against enemies? This is proven by China’s silence upon Vietnam’s execution of sovereignty over the islands, even though China knew of the activities of the Hoang Sa and Bac Hai companies. It is also further proven by the incident of the sunken vessels La Bellona and Imeji Maru (see section I of this paper). All these data indicate that China not only did not execute sovereignty, did not see these islands as belonging to China, but also knowingly and unknowingly admit Vietnam’s sovereignty over the islands.

2. The 1887 Agreement

China used to cite the French-Chinese agreement of 1887 to affirm that Hoang Sa and Truong Sa belonged to China. Many of its spokespeople continued to make use of this agreement to assert likewise.

In reality, this agreement was not an agreement with the purpose of dividing up the islands in the high seas between Vietnam and China, but only served to determine the border between North Vietnam and China. Today, in negotiations, China does not refer to this agreement anymore. However, even today, there are no few authors, the majority of whom are Chinese living over seas, when writing on the issue, continue to cite the 1887 Agreement as an official reason to prove that the two islands belonged to China. A number of Western writers, perhaps due to chain effect, make use of these papers in order to conclude that the Agreement effectively handed the disputed islands over to China. [58] Therefore, it is important to clarify this misunderstanding to stop the chain effect in international thinking.

A number of authors quote the following passage from the Agreement in order to affirm Chinese sovereignty:

“From Quangdong, the disputed points from the east to the north west of Mong Cai, outside the borders determined by the two sides, may be seen as belonging to China. The islands to the east of the longitude Paris 105*43’, which is the longitude going through the eastern point at the Tch’a Kou or Ouan-Chan (Tra Co) island becoming the border, also belong to China. The islands of Go-tho and other islands to the west of the longitude belong to An Nam.”

The authors argue that Hoang Sa and Truong Sa lie to the east of the longitude Paris 105*43’, and therefore, belong to China. [59]

There are authors who maintain that the Agreement must be interpreted according to the exact meanings of the words. [60] In reality, if interpreting strictly according to the words, it must be understood that the 1887 Agreement was an agreement for dividing the borders between Northern Vietnam and China only, and not related to the islands on the high seas that did not belong to northern Vietnam. By simply looking at the name of the Agreement, one can see this point. The name of the Agreement is “Convention relative a la delimitation de la frontiere entre la Chine et le Tonkin.” [61]

Moreover, the Vienna Convention on international agreements determine that an agreement must be interpreted strictly according to its words; however, if this methods leads to something absurd or unreasonable, other documents and agreements that are related to this agreement may be used in order to search for the purpose of the agreement in order to resolve points that are not clear. [62]

Based on the Vienna Convention, we can judge the 1887 Agreement by three methods: 1) strict interpretation of the words in the Agreement, 2) interpret the Agreement as a whole, and 3) look for the purpose of the Agreement.

2.1. This act is quite simple in the 1887 Agreement. As stated above, we only have to look at the name of the Agreement in original French to see that it had to do with the border between northern Vietnam and China. The French referred to northern Vietnam as “Tonkin.” During colonial era, France divided Vietnam into three regions; the North was called Tonkin, the Central region was called An Nam, and the South was called Cochinchine. The authors mentioned above thought that Tonkin was the entire country of Vietnam.

The word “frontiere” in Article 2 of the Agreement indicates clearly that the longitude Paris 105*43’ is the sea border, but only that in northern Vietnam (Tonkin), not the border of other islands on the high seas, in the region of Central and South Vietnam. The Agreement explicitly determined the direction of the border to be north-south, passing through the eastern corner of Tra Co island. Because this is the border between Tonkin and China, it must be understood that the border ends at the place where France formerly determined to be Tokin and Annam (which is the border between north and central Vietnam).

The task of determining the border between northern Vietnam and China is easy to understand if one looks at the way France divided and administered Vietnam at that time. In order to implement the policy of “divide and conquer,” France divided Vietnam into three regions with three different governments. The North was under the form of a protectorate government; the Central self-governed because the imperial system based in Hue was still functioning (even though only symbolically); and the South was under a colonial government. The three regions were considered as virtually three different entities. Therefore, the matter of determining borders as only between Tonkin (northern Vietnam) and China, and not concerning the Central or the South, is something quite easy to understand with respect to the colonial policy of Fance at that time. In short, using the method of interpretation according to the text indicates that “Tonkin” and “frontière” refer clearly to the border between northern Vietnam and China. It included both land border as well as water border in the Gulf of Tonkin. [63]

2.2. Judge the Agreement as whole

The entire Agreement does not mention Hoang Sa and Truong Sa. The document only speaks of the border between northern Vietnam and China, and determine the points where the committee on borders of France and China do not agree, which is the area between Van Nam and Quangdong.

The above authors only cite the part related to the border of Quangdong. However, before that, the Agreement states: “The points that the Committee of both sides do not agree upon, and amendments planned in Article 3 of the 9 June 1885 Agreement are determined as follows: in Quangdong, points of disputes…”

After the section on Quangdong is the part that determines the border of Van Nam: “On the border region of Van Nam, the border is determined as follows:….”[64]

Following Chinese argument, if all the islands lying to the east of longitude Paris 105*43’ belonged to China, not only Hoang Sa, Truong Sa, but all the islands along Vietnamese shore to the east of this longitude would belong to China as well. This interpretation leads to something “unreasonable or absurd”, precisely as stated in the Vienna Convention. Therefore, we can look for the purpose of the 1887 Agreement in order to take into account documents and agreements related to the 1887 Agreement.

2.3. The purpose of the 1887 Agreement

If one reads the report made by Dureau de Vaulcomte to the French Foreign Ministry explaining the 1887 Agreement, we would see even more clearly that the purpose of the Agreement was to draw the border being disputed between northern Vietnam and China. [65] The 1887 Agreement was to follow up on Article 3 of the 1885 Agreement, which was a friendship agreement between France and China. After France sent forces to Vietnam, the governors of Quangdong, Quang Tay, and Van Nam sent forces over the borders between northern Vietnam and China. Therefore, in order to cease this situation and restore the former border, France agreed with China in Article 3 of the 1885 Agreement that the two sides would establish a Committee to draw the border comprised of experts from both sides. The 1885 Agreement also determined that if there were disagreements on any point related to drawing the borders, they would refer the matter to respective governments to decide. [66] The drawing of the borders was divided into three areas: the border at Quang Tay, the border at Quang Dong, and the border at Van Nam. The determination of border at Quang Tay went smoothly, but disagreements occurred when it came to Quang Dong and Van Nam. As a result, the 1887 Agreement was needed to resolve the two regions mentioned above.

In Quang Dong, the disagreement revolved around the Paklung region and surrounding islands. Because of the presence of Chinese forces in this region, France decided to send forces to occupy the area. China then protested saying that this area belonged to China. As a result, a dispute was born. [67]

Therefore, the dispute was not related to Hoang Sa and Truong Sa. At that time, China did not pay attention to these two archipelagos, and France also did not know that Vietnam already had sovereignty over these islands. Therefore, at that time there were no dispute involving these archipelagos. Consequently, when France and China signed the 1887 Agreement, these islands did not enter their mind. In summary, the purpose of the 1887 Agreement was to draw the border in the region of Quang Dong and Van Nam; and the border in accordance with Article 2 of the 1887 Agreement only pertained to northern Vietnam and the Gulf of Tonkin.

On the one hand, China says that the 1887 Agreement applies to Hoang Sa and Truong Sa, which are islands on the high seas, but when discussing about the Gulf of Tonkin, China asserts that the Agreement only divides “the islands in the Gulf of Tonkin”, not the sea border. On 12 May 1973, the Vice Foreign Minister of China, Han Nian Long, declared the above mentioned point. If so, China contradicts itself. [68]

3. Declarations made by the Democratic Republic of Vietnam

China says that Vietnam has admitted Chinese sovereignty over the archipelago of Hoang Sa due to the following facts:

- On 16 June 1956, the Vice Foreign Minister of the Democratic Republic of Vietnam said, “According to Vietnamese documents, historically speaking, Xisha and Nansha are Chinese territories.”

- On 4 September 1958, during the Cold War, when the U.S. began to interfere into Vietnam, fight against China, and the American forces made patrols on the Taiwan Strait, China decided to declare its territorial waters of 12 nautical miles. In this occasion, Prime Minister Pham Van Dong sent the following diplomatic note to Zhou En Lai as follows:

"Comrade Prime Minister,

We have the honour to bring to your knowledge that the Government of the DRVN acknowledges and approves the declaration dated 4th September, 1958 of the Government of the PRO fixing the width of the Chinese territorial waters. The Government of the DRVN respects this decision and will give instructions to its State bodies to respect the 12-mile width of the territorial waters of China in all their relations in the maritime field with the PRC. I address to you, comrade Prime Minister, the assurance of my distinguished consideration". [69]

- On 9 May 1965, when the U.S. was escalating the war in Vietnam and determined points of strategic conflict, the Democratic Republic of Vietnam declared that Xisha belonged to China.

The above declaration is not valid because before 1975, the Democratic Republic of Vietnam (North Vietnam) did not control these islands. At that time, these islands were under the control of the Republic of Vietnam (South Vietnam) who always asserted Vietnamese sovereignty over these two archipelagos. The Provisional Revolutionary Government of the Republic of Vietnam also made no declaration that jeopardized this sovereignty. According to the lawyer and author Monique Chemillier-Gendreau:

“In this context, declarations or any viewpoints given by the North Vietnamese government is not effective when it comes to sovereignty. This was not a government that had authority over these archipelagos. One may not renounce what one has no authority over….”[70]

A second reason from a legal perspective is that at that time North Vietnam was not a party in the conflict. Before 1975, the countries and territories involved in the conflict included: China, Taiwan, South Vietnam, and the Philippines. Therefore, declarations made by North Vietnam may be seen as declarations of a third party, which had no effect on the conflict itself.

Supposing that the Democratic Republic of Vietnam (North) and the Republic of Vietnam (South) were one country, then based on international law, this declaration is also invalid. However, some has espoused the doctrine of “estoppels” in order to argue that this declaration has validity and Vietnam cannot go back on its words.[71]

According to international law, there is no other legal bar that creates obligation for those who make unilateral declaration other than “estoppels”. Estoppels is a principle in which a country cannot say or do in contrast to what was said or done before. In other words, “one cannot at the same time blow hot and cold.”[72] However, estoppels does not mean that a country is obligated to whatever it declares.

The estoppels doctrine had its beginning in English law, and was later brought into international law. The main purpose is to prevent countries from benefiting from its dishonest actions, and hurting other countries.[73] Therefore, estoppels must meet the following criteria:

1. The declaration or action must be taken by a representative of a country in a clear and unequivocal manner.[74]

2. The country that claims “estoppels” must prove that based on that declaration or action, there are actions or inactions being carried out by that country which constitutes “reliance”, as is called in English and American law.

3. The country claiming “estoppels” also has to prove that based on the declaration of the other country, it has suffered damage, or that the other country has benefited when making that declaration.[75]

4. Some judgments demand that this declaration must be made in a continuous manner over time. For example, the case of the Gulf of Maine, the military and semi-military activities in Nicaragua, the case of Preah Vihear…[76]

In addition, if the declaration has the characteristic of a promise, which means that the country declares that it will or will not do something, it must have true intention of wanting to be obligated by that promise, and truly wants to execute that promise.[77]

The estoppels doctrine has many precedents in international courts and countries who have made certain declarations have found to not be obligated to follow them because not all the conditions are met.

In the judgment on the case “Military and semi-military activities in Nicaragua” between Nicaragua and the U.S., the court decided that: “… ‘Estoppels’ may be deduced from an attitude, a declaration by a country, in order to accept a particular situation; the attitude and declaration not only has to be made explicitly and continuously, but also has to cause one or many countries to base on them to change their activities, and consequently suffer damage”. [78]

Applying these criteria of estoppels to the declaration of the Democratic Republic of Vietnam, we can see that conditions 2 and 3 are missing. In the years 1956, 1958, and 1965, China did not have any attitude or make any changes in its attitude based on North Vietnam’s declaration. China also cannot prove that it suffered damage for relying on that declaration. North Vietnam did not benefit in any way from making that declaration. At that time, Vietnam and China saw themselves as close comrades and friends. The declaration made by PM Pham Van Dong was based on that friendship.[79] Moreover, the wording of the declaration does not clearly and unequivocally affirm Chinese ownership of the Paracel Islands. The letter only states: “The government of the Democratic Republic of Vietnam respects this decision (the decision to determine the 12 nautical mile territorial waters of China), and will direct the proper government agencies to respect absolutely the 12 nautical mile territorial waters of China….”

The declaration of PM Pham Van Dong may also be understood as a unilateral promise, a declaration of intention. In fact, this is a promise to respect the decision of China in its determination of sea territories, and a promise to order national agencies to respect Chinese territories.

If it is a mere promise, then it is even more difficult to obligate a country to follow that promise. The International Court has provided one more condition to make a promise obligatory: the true intention of the country making that promise. That is, whether that country really wants to be obligated to its promise or not. In order to determine this intention, the court examines every event surrounding the declaration, to see in what context and circumstances was the declaration made. Moreover, if the court sees that the country can obligate itself through signing agreements with the other country, then the declaration is not needed, and the court will conclude that the country making the declaration does not truly want to be obligated to that declaration. Therefore, the declaration does not have an obligatory characteristic.

In the judgment in the case of “Nuclear experiments” between Australia/New Zealand and France, France declared that it would stop carrying out nuclear experiments. The court decided that France was obligated to this promise because France did intend to be held to that promise. [80]

In Vietnam’s case, when PM Pham Van Dong declared that Vietnam will respect Chinese sea territories, he did not intend to speak of ownership of the Paracel and Spratly Islands. He made this declaration in urgent circumstances, in which the war with the United States was escalating, American Fleet 7 was carrying out activities on the Taiwan Strait threatening China. He had to immediately voice support of China in order to counter against American threat.

The 1965 declaration of the Democratic Republic of Vietnam was in the same manner. The motivation for that declaration was an urgent situation of danger in Vietnam. This is a declaration that has political not legal characteristics.

Even the condition of making declaration continuously and over time is not satisfied when it comes to the three declarations of North Vietnam. Estoppels doctrine is only applied if we consider North Vietnam and The Socialist Republic of Vietnam as one; and even France during the colonial period, and the Republic of Vietnam (South Vietnam) as the same entity as the present Vietnam. If we consider the Democratic Republic of Vietnam (North Vietnam) as a separate country, then estoppels cannot be applied because, as stated above, the declaration will be seen as a declaration made by a country that does not have authority over territories being disputed. Therefore, if Vietnam is seen as one single entity from history until the present, then the three declarations made by North Vietnam are only statements that carry political meaning during wartimes, compared to the attitude and viewpoint of Vietnam in general from the 17th century until the present.

In summary, the declaration that we are analyzing is missing many factors that allow for estoppels to be applied. The factors of reliance and intention are very significant. If the reliance factor does not exist in order to limit the application of estoppels, countries will be prevented in making their foreign policies. They will be forced to follow out-dated ways to execute their foreign policies. When conditions change, the foreign policy of the other country changes, the foreign policy of this country must also change. It is normal for countries to be friends one moment and then turn into enemies the next.

As for unilateral promises without true intention of following, they are no more than empty promises, similar to those of politicians and candidates in political elections. In the international arena, the principle of sovereignty is very important. Outside international procedures and the articles of Jus Congens, there is no law that obligates a country contrary to its wishes, when it is not causing damage to another country. Therefore, the intention of the country has a decisive role in determining obligation of a unilateral promise.

III. Conclusion

The above analyses demonstrate that Vietnam’s arguments are stronger than those of China, because Vietnam made use of the islands continuously over three centuries, in a harmonious manner without protest from any country, including China. Not only that, but Chinese history books even admit that these archipelagos constitute the defense borders of Vietnam, and through its attitude at that time, China had also implicitly admitted Vietnamese sovereignty over these islands. If the Nguyen Lords began to exploit the islands since the beginning of the 17th century, after nearly 100 years, that historical title was completed. That historical title was reinforced further because the act of taking possession by the Emperor Gia Long and Minh Mang. At the same time, the sovereignty was executed continuously through the exploitation and administration of the Hoang Sa and Bac Hai companies, which were entities of the government.

China also put forth many documentation to prove that it was the first to discover and executed sovereignty over the islands. However, these documents demonstrate that Chinese vessels at the time traveled through the Eastern Sea, and on their way, they coincidentally saw islands with various names, but none of which were called Xisha or Nansha. Supposing China discovered these islands, it still did not execute sovereignty over them. The appearance of fishermen is not sufficient to say execution of sovereignty by the government. Therefore, the historical title which China says it has, is very weak. The majority of international law experts, with the exception of Chinese authors, all agree on this point. [84] Comparing the historical title between the two sides, we can conclude that between Vietnam and China, Vietnam is the one to have rightful sovereignty over the two archipelagos. Analysis also demonstrates that the historical title of Vietnam was completed since the 17th century, under the Nguyen Lords.

The 1887 Agreement between France and China does not hand over the two archipelagos of Hoang Sa and Truong Sa to China because this agreement only determined the borders between northern Vietnam and China. Therefore, it only determined the border in the regions of Van Nam, Quang Dong, and the Gulf of Tonkin.

The declarations made by the Democratic Republic of Vietnam pertaining to the two archipelagos are not valid because before 1975, these two archipelagos were not under control of the DRV, but belonged to the Republic of Vietnam. The DRV at that time was not involved in the dispute; therefore, any declarations made can only be seen as those of a third unrelated party. Moreover, even if the DRV were not considered a third country, “estoppels” can also not be applied in this case, since China did not suffer damage, and the DRV also did not benefit through these declarations. The declaration made by PM Pham Van Dong was only a promise brought about by the situation of war. In the end, if the three declarations are seen as that of Vietnam in general, they also lack the characteristic of continuity through expanse of time which would make Vietnam lose its sovereignty over the islands, which it has exercised uniformly and persistently over three centuries.

In reality, China has now totally controlled Hoang Sa. It has carried out many infrastructural constructions in order to reinforce its illegal occupation. An illegal occupation, through time, if no protest comes from the other country, and if are admitted by third countries, will eventually establish sovereignty for the country doing the occupying. Because time and acceptance will “erase all sins”.[85]

In the present situation, in order to ensure that Chinese occupation does not result in sovereignty, Vietnam has to voice protest and assert its sovereignty in regards to Hoang Sa (as well as Truong Sa). Vietnam also should publicly suggest that China agree to take the matter to International Court. If China really believes that it has a strong legal basis for sovereignty on these archipelagos, there is no reason for China to refuse a legal resolution to the dispute.

As for Truong Sa, it is presently being disputed by 6 countries: Philippines, Vietnam, Taiwan, China, Malaysia, and Brunei. All the countries claim complete or partial ownership of the archipelago. Up to now, the problem has not only been unresolved, but seem to become more intense.

In 1988, China invaded and took over a number of islands in Truong Sa for the first time. Even though Vietnam’s boat was sunken, China prevented the Red Cross boat from making humanitarian rescues. This is a fundamental violation of the rules of war. Therefore, we can deduce that China will not hesitate to continue to use force. Since that time, China would make further invasions from time to time. On the one hand, China continues to espouse the act of following international law, call for bilateral negotiation, but words do not go along with action. [86] Therefore, it is not possible to base on the words of China to think that it will not use force. The prospect of China using violence to take over all of the islands in Truong Sa is even more probable now that the U.S. and Russia have both withdrawn from the Eastern Sea, leaving a gaping political and military hole in this region, and leaving China as the dominating party in the Eastern Sea. [87] This is a very worrisome situation. China controlling both the Hoang Sa and Truong Sa archipelagos means that China controls virtually all of the Eastern Sea, which is a very important route for ships from Russia, the U.S., Japan and other countries in the world.[88]

The method of bilateral negotiation between China and other countries in the dispute cannot be implemented in a fair manner because of the difference in power between the two sides, in which China is, of course, the stronger side. It is due to this reason that up until now, China has only accepted bilateral negotiation. China wants to do this in order to force the other country to negotiate in the way that China wants. If not, China would resort to force. [89] This is only a strategy for China to buy more time to reinforce its position vis-à-vis the two archipelagos. The longer it takes, the more China benefits.

The method of joint development cannot be carried out when the issue of sovereignty has not been resolved. Therefore, as time goes on, it would reinforce the illegal occupation, and the victims will be the country that has the proper juridical title.

The most practical method presently is for the matter to be taken to ASEAN or the United Nations to resolve. The U.N. is a way that may bring about more results, because the U.N. is broader, involving the U.S., Russia, Japan and other countries. Moreover, in the case that the U.N. cannot come to a resolution or encounter some problems in the process of resolution, it still can bring the matter to International Court asking for its opinion without having to receive consent from any particular country. The consultative opinion of the International Court is not effective like a true judgment, but it still can strongly affect world opinion. The dispute in the Western Sahara also received the opinion from the court sought by the United Nations. [90]

The dispute involving the archipelagos of Hoang Sa and Truong Sa need to be resolved the sooner the better. The longer time drags on, the more it threatens peace in Southeast Asia and possibly, world peace.

* This paper was presented at the Summer Conference “The Dispute in the South China Sea” in New York City, 15-16 August 1998.

[1] Doctor of Law, Sorbonne University, France.
[2] Lê Quý Đôn: Phủ biên tạp lục. Taken from Võ Long Tê, Les archipels de Hoang Sa et de Truong Sa selon les anciens ouvrages viêtnamiens d’histoire et de geographie, Sài Gòn, 1974, p. 62.
[3] Eveil economique de l’Indochine, no. 741.
[4] Nguyễn Quốc Định: Droit International Public, LIbrarie Générale de Droit et de Jurisprudence, Paris, 1975. pp. 401-402.
[5] Robert Jennings: The acquisition of territory in international law (New York, 1963), quote Charles de Visscher. Charles de Visscher wrote about the method of consolidations as follows:
“… Le long usage établi, qui en est le fondement, ne fait que traduire un ensemble d’interêts et de relations qui tendent par eux meme à rattacher un territoire ou un espace maritime à un état determine… elle peut être repute acquise… par une absence d’opposition suffisemment prolongée…”, see Jennings, p. 25, NB p.2.
[6] Võ Long Tê, Kes archipels de Hoàng Sa et de Trường Sa selon les anciens ouvrages viêtnamiens d’histoire et de geographie, Sài Gòn, 1974, pp. 39 and 40.
[7] Ibid., pp. 34-35.
[8] Ibid. tr. 48.
[9] Lê Quý Đôn: Phủ biên tạp lục, 1776. Bureau of Information and Newspaper of the Vietnamese Foreign Ministry quote: Vietnamese Sovereignty on the two archipelagos of Hoang Sa and Truong Sa, Hà Nội, 1979, p. 13.
[10] Ibid., pp. 14-15.
[11] Quần đảo Hoàng Sa và quần đảo Trường Sa, bộ phận lãnh thổ của Việt Nam, Sự thật publisher, Hà Nội, 1982, p. 13 and 14.
[12] Võ Long Tê, Ibid. p. 69.
[13] M.A. Dubois de Jancigny: Thế giới, lịch sử và sự mô tả các dân tộc, các tôn giáo của họ, Ceylan, (1830). Cited by Võ Long Tê, p. 168.
[14] J. B. Chaigneau (1769-1825): Notice sur la Cochinchine, 1820. Cited by Võ Long Tê, Ibid. p. 168.
[15] Vụ Thông tin và Báo chí Bộ Ngoại giao, p. 21.
[16] Võ Long Tê, p. 100.
[17] Vụ Thông tin và Báo chí Bộ Ngoại giao, p. 21.
[18] Ibid. p. 25.
[19] Gutzlaff: Geography of the Cochinchinese Empire in Journal of the Geographical Society of London, 1849, book XIX. Cited by Sự thật publisher, p. 16, Gutzlaff writes:
“The Annam government sees that the act of collecting taxes brings about benefit, thus established a small garrison here (i.e. Paracel Islands, which the author referred to as KatVang), in order to collect taxes from anyone who comes here….”
[20] The Clipperton case: Recueil des Sentences Arbitrales, Second edition.
[21] Teh-Kuang Chang: China’s claim of sovereignty over Spratley and Paracel Islands: a historical and legal perspective, Case Western Reserve Journal of International Law, vol. 23 (1991), p. 418.
[22] Jian-Ming Shen: International law rules and historical evidence supporting China’s title to the South China Sea islands, Hastings International and Comparative Law Review, vol. 21 (1997), p. 22 & 23.
[23] The case of Palmas Island: Receuil des Sentences Arbitrales, Second editon, pp. 859-860.
[24] Monique Chemillier-Gendreau: La souveraineté sur les Paracels et Spratleys. L’Harmatan, Paris, 1996, p. 71.
[25] Võ Long Tê, p. 111.
[26] Ibid. p. 110.
[27] Gendreau, pp. 21, 23.
[28] Võ Long Tê, p. 134.
[29] Võ Long Tê, p. 61.
[30] Ibid. p. 157.
[31] Tao Cheng: The dispute over the South China Sea Islands, Texas International Law Journal, vol. 10 (1975), p. 272.
[32] Jian-Ming Shen, p.. 18.
[33] Ibid. p. 17.
[34] Elizabeth van Wie Davis: China and the Law of the Sea Convention, Follow the Sea, New York, 1995, p. 154.
See also Marwyn Samuels: Contest for the South China Sea, New York/London, 1982, p. 16.
and Shen, p. 21.
[35] Van Wie Davis,
See also Shen, p. 31.
See also Hungdah Chiu & Choon-ho Park: Legal status of the Paracels and Spratly Islands, Ocean Development and International Law Journal, 3 (1975), p. 43.
[36] Samuels, note 31, p. 38.
[37] Lưu Văn Lợi: Cuộc tranh chấp Việt-Trung về hai quần đảo Hoàng Sa và Trường Sa, Công an nhân dân publisher, Hà Nội, 1995, p. 10.
[38] Shen, p. 15.
[39] Ibid. p.18.
[40] Ibid. p. 19.
[41] Ibid. p. 20.
[42] Ibid. p. 21.
[43] Ibid. p. 20 and 21. See also Teh Kuang Chang, p. 400, and Hungdah Chiu, NB. p.32, 463 and 465.
[44] Shen, p. 27.
[45] Ibid.
[46] See note 2 on p. 361, Chiu, NB p.32.
[47] “… guo Qizhou Yang, Wanlishitang…”. The word “guo” in Chinese means “through”.
[48] Shen, p. 28.
[49] Hungdah, p. 463.
[50] Lưu Văn Lợi, p. 17.
[51] Samuels, p. 21 and 22.
[52] Ibid. p. 23.
[53] Gendreau, p. 57 and 58. See also Lưu Văn Lợi, p. 14.
[54] The case of Palmas Island, p. 846. “Inchoate title must be completed within a reasonable time by effective occupation of the region…”.
[55] Samuels, pp. 30-31, 42.
[56] Ibid. p. 20.
[57] Ibid. p. 17 and 21.
[58] At least the following authors cite the 1887 Agreement:
- Hungdah, p. 464 and 467.
- Shen, p.. 119.
- Tao Cheng, p. 274.
- John Chao: South China Sea: boundary problems relating to the Nansha and Xisha Islands, Chinese Yearbook of International Law, 9 (1989-1990): p. 119ff.
- Steve Kuan Tsy Yu, Who owns the Paracel and Spratlys? An evaluation of the nature and legal basis of the conflicting territorial claims, Chinese Yearbook of International Law, vol. 9 (1989-1990): p. 5, 7 and 8.
- Choon-ho Park, The South China Sea dispute: Who owns the islands and the natural resources? Ocean Development and International Law Journal, vol. 5 (1978): p. 34.
- Marwyn Samuels, pp. 52-53.
- Brian Murphy, Dangerous ground: the Spratly Islands and international law, Ocean and Coastal Law Journal, vol. 1 (1994), p. 201.
- Elizabeth van De Wie, Sđd, tr. 52-53.
- Michael Bennet, The PRC and the use of international law in the Spratly Islands dispute, Stanford Journal of International Law, vol. 28 (1992), p. 446.
[59] Hungdah, p. 464.
[60] Shen, supra, p. 120.
[61] Receuil des Traités de la France, Tome 17 (1886- 1887). Duran & Pedone (Paris), 1891, p. 387.
[62] Convention de Vienne sur le Droit des Traités, 1969, Art. 32.
[63] Some authors argue that the 1887 Agreement does not determine sea borders, see Elizabeth van De Wie, p. 156. However, close reading of Article 2 of the Agreement indicates clearly that the longitude Paris 105*43’ is the border between northern Vietnam and China.
“Les Iles qui sont à l’est du meridien de Paris 105°43’, … c’est à dire de la ligne Nord-Sud passant par le point oriental de l’èle de Tra Co, et formant la frontière…”
[64] Receuil des Traités, p. 387 and 388.
[65] Ibid. Rapport Vaulcomte, p. 187.
[66] Traité de Paix, d’Amitié et de Commerce conclu à Tien-Tsin le 9/6/1885 entre la France et la Chine, trong Receuil des Traités de la France, Tome 16, p. 496.
[67] Rapport Vaulcomte, p. 189-191.
[68] Shen, p. 123.
[69] Lưu Văn Lợi, p. 105.
[70] Gendreau, p. 123.
[71] Shen, p. 57.
[72] Charles Vallée: Quelqques observations sur l’estoppel en Droit des gens, Revue Générale de Droit International Publie (1973), p. 951, note 7.
[73] D. W. Bowett: Estoppel before International Tribunals and its relation to acquiescence, Bristish Yearbook of International Law, vol. 33 (1957), p. 177.
[74] Antoine Martin: L’Estoppel en droit international public Précédé d’un apercu de la théorie de l’estoppel en droit anglais, Revue Générale de Droit International Publie, vol. 32 (1979), p. 274.
[75] Ibid. pp. 286-300.
[76] Délimitation de la frontière maritime dans la region du Golfe de Maine, Cour Internationale de Justice Receuil, 1984, pp. 309-310.
- Activités militaires et para-militaires au Ncarague et contre celui-ci, Cour Internationale de Justice Receuil, 1984. pp. 414-415.
- Affaire du Temple Préah Vihear, Cour Internationale de Justice Receuil, 1962, pp. 22-23, 32.
[77] Brigitte Bollecker-Stern: L’Affaire des essays nucléaires francais devant la Cour Internationale de Justice, Annuaire Francais de Droit International (1974), p. 329.
See also Megan Wagner: Jurisdiction by Estoppel in the International Court of Justice, California Law Review, vol. 74, p. 1792.
[78] Cour Internationale de Justice Receuil 1984, p. 414.
[79] Lưu Văn Lợi, p. 75.
[80] Cour Internationale de Justice Receuil, 1974, p. 267 and 269.
[81] Lưu Văn Lợi, pp. 104-110.
[82] Megan Wagner, note 64, p. 1780.
[83] Bollecker – Stern, p. 331.
[84] Among Western authors who conclude that the Chinese arguments for historical title is weak include at least the following:
- Bennett, p. 446;
- Murphy, p. 201;
- Roque Jr., p. 203;
- Chemillier – Gendreau, p. 66;
- Jean Pierre Ferrieer, see p. 182;
- Samuels, p. 40. Giáo sư Samuels does not discuss the issue of sovereignty, but analyzes the history involving China and the islands in the Eastern Sea. He writes that up until the 19th century, there is no evidence that the Qing Dynasty possessed any island:
“By the mid-19th Century, the literari cognitive map of the South China Sea had become more elaborate, but still barely touched upon the islands of the sea… There is no evidence here that the Ching State had in any sense absorbed the islands into the imperial domain.”
[85] Jean Pierre Ferrier: Le conflit des iles Paracels et le problème de la souveraineté sur les iles inhabités, Annuảie Francais de Droit International (1975), p. 178: “… quoi qu’il en soit la conquête militaire des iles par la Chine ne peut résoudre le problème juridique: pour qu’une telle occupation, ellegale dans son principe, puisse avoir des effets juridiques, il faut que la reconnaissance par les autres états intervienne et ‘purge juridiquement de ses vices’ l’annexion ainsi réalisée.”
[86] Mark Valencia: China and the South China Sea disputes, Oxford University Press, London, 1995, p. 7.
[87] Bennett, p. 427.
[88] Jeannette Greenfield: China’s practice in the Law of the Sea, Clarendon Press, Oxford, 1992, p. 13.
[89] Mark Valencia, p. 6 and 7. See also Murphy, p. 209 and 210.
[90] The case of Sahara Occidental, see Avis Consultatif, Cour Internationale de Justice Receuil, 1975, pp. 21-28. In these pages, the Court speaks of the authority to give opinion in accordance with Article 65, paragraph 1 in the Court Regulations.


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If you are interested in any aspect of coastal law, this site links to not only sites about Texas Coastal Law, but also sites about American Coastal Law. Cheers!

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Oes Tsetnoc | Semangat Mengembalikan Jati Diri Bangsa said...

This won't actually have success, I think so.