China's Erroneous Juridical Title Claims in Paracel and Spratly Islands

JURIDICAL TITLE OF CHINA REGARDING THE XISHA AND THE NANSHA

By Luu Van Loi

After going back 2000 years in history, the Chinese authors could not demonstrate that their country had discovered - in the juridical meaning of the term - and occupied the Xisha and Nansha archipelagoes. They also made efforts to demonstrate that the Chinese government had long exercised its territorial authority over the said archipelagoes.

In 1932, China advanced the date 1909 as the beginning of the exercise of its territorial authority over the Xisha; this date being that of Admiral Li Zhun's landing on some islands of this archipelago. In 1956-59, when Chinese troops occupied the Eastern part of the Xisha archipelago, China pushed this date back to the XVth century. It pushed the date further back, to the Xth century, in 1975, then to the IVth century in 1988. What must surprise the public is that for the exercise of this double millenary sovereignty, the Chinese Ministry of Foreign Affairs has been able to produce only three facts, three troops of the Chinese administration on the islands of the Southern sea – in reality only three facts relating to the Xisha islands – while regarding the Nansha islands, it could not give a single fact. To fill in the gap, Han Zhenhua and Pan Zhiing added some activities of production and even some cultural vestiges on the island Song Tử Đông (North East Cay); for instance, the tombs of two Chinese fishermen of the Qing dynasty. Following are some proofs furnished by the Ministry of Foreign Affairs and the Chinese authors:

1. The Nansha archipelago has been linked with Hainan island since 789.

Annotating the section concerning Hainan island in the book Zhu Fan Zhi by Zhao Juguo, Han Zhenhua wrote: "Qianlichangsha and Wanlishitang already belonged to the Qiong district of Hainan as early as the Song dynasty, Guangnan Donglu, the islands of the Southern sea belonged to the administration of China as early as the 5th year Zheng Yoan of the Tang dynasty (789)". As for Pan Zhiing, he wrote: "The historical writings have shown that the most ancient date of the exercise of sovereignty on the Nansha may go back to the 5th year Zheng Yoan of the Tang. At that time, the Court placed the archipelago of Nansha under the administration of the district of Qiongzhou". In reality, Zhu Fan Zhi simply said that the Tang troops reorganized the administration of the districts of Hainan after the annexation and pacification of the island, separating Qiongsan from the district of Yazhou and creating the jun (military command). Such is history and there is no "linking up" the islands of the Southern sea with Hainan.

2. The Song dispatched its navy to patrol the Xisha archipelago

The documents of 1980 of the Chinese Ministry of Foreign Affairs (MFA) and Han Zhenhua also take recourse in this fact. As evidence, the MFA document quoted an excerpt of Wu Jing Zong Yao, a book on the military policy of the Song and prefaced by King Song Renzong (1023 - 1063):

"The Court of the Northern Song ordered the royal troops to hold garrison, to create posts of maritime patrol" in the Guangnan (presently Guangdong), "to construct keeled warships", "from Tunmensan to go with the East wind in the direction of South-west in seven days, one will reach Jiurulozhou". After this quotation, he

affirms that Jiurulozhou is the Xisha archipelago today. "This fact shows that the Court of the Northern Song placed the Xisha archipelago under its administration", that "the Chinese navy carried out patrols in the sea of the Xisha". In fact here is the in extenso excerpt from Wu Jing Zong Yao:

"The district of Nanhai of Guangzhou was previously the land of Hundred Yue inhabited by the Man, the Dan. From the Han on, it was placed under the military's command (jun). The Tang dynasty made it the Qing Hai Jun Jie Du. Our dynasty liquidated Liu Chang, then created an urban centre, took the armies in hands, pacified the sixteen zhou and kept under control the foreign countries, which are favourable for an influx of commercial boats, and the Man and the Han live without any discrimination."

"To order the royal troops to organize their garrisons, to create the posts of maritime patrol in the Guangnan (presently, Guangdong) the two ports in the East and the West, 280 trượng wide and 200 li away from Tunmensan" to "construct keeled warships". From this point in the South-east to the high sea, it is 40 li long, 420 li in the East is Hui Zhou, 240 li in the West is Toan Zhou, 750 li in the South is An Zhou, 250 li in the North is Tiao Zhou. The route to the South-east is 400 li; 20 li more and one arrives in Tunmensan, the water there is shallow, one can cover 50 li in one day, it is 200 li wide."

"From Tunmensan, by the East wind, one goes in the South-west direction, one will arrive in Jiurulozhou in seven days, in Pulaosan (the limits of Huanzhou) in three days more, then going 300 li more towards the South, one will arrive in Lingshandong (potable water is found there). Going in the South-west direction, one will reach the lands of Dashifu, Sizi, Qiangzhu. It is impossible to calculate the distances."

Comparing the excerpts of the MFA with the same in extensor passage of the Wu Jing Zong Yao, it is reasonable to say:

The creation of posts of maritime patrol at the two ports in the East and the West, a mere cutting and rearrangement, is related to the itinerary Jiurulozhou to conclude that "the Chinese navy carried out patrols in the sea of the Xisha" (Jiurulozhou is therefore assimilated to the Xisha). In fact, the original text does not say that the destination is Jiurulozhou. The itinerary in question is as follows: from Tunmensan to follow the coast until Vietnam, Champa and the countries of the Indian Ocean. But the last words are deleted to make one believe that the itinerary goes only to Jiurulozhou. So there is no story about the administration of Jiurulozhou (i.e. the Xisha) by the Nothern Song nor that of Chinese maritime patrols in the sea of the Xisha.

3. Under the Yuan, China made astronomical observations "beyond the Zhouya" (i.e. South of the Hainan island)

It is true that the Yuan Shi speaks of "astronomical observations" of the Yuan empire in these terms:

"The astronomical observations in the world have been carried out in 27 localities, in the East as far as Gaoli, in the West as far as Dianchi, in the South beyond Zhouya, in the North as far as Tiele; it is an action that ancient men had never accomplished".

The Chinese MFA considers this fact an act of exercising sovereignty. For his part, Han Zhenhua said that "the territory of the Yuan included the islands of the Southern sea; not only were mandarins sent there to make astronomical observations, but also astronomic observation base was even installed there in the exercise of Chinese sovereignty."

According to the map of the Yuan Empire in the book Li Dai Gang Yu Biao (Maps of the frontiers in successive epochs) drawn by Duan Changji, the Qing dynasty, the Yuan Empire went as far as the isiand of Liaodong in the East, the source of the Huang He river in the West, the Gobi desert in the North, and the island of Hainan in the South. Gaoli and Tiele were outside the Chinese frontiers at that time. This is in complete conformity with the report by Guo Shengjing to the Emperor saying that the territory was larger than what it had been under the Tang, Therefore, it is necessary to make astronomical observations from all four seas to amend the calendar. The "four seas" means what one has beyond the national frontiers . So these were not observations under the sky, that is to say in the country. In spite of the clarity of the texts, the Chinese authors are obstinate in affirming that the observations were carried out inside the Yuan Empire. To make observations under a programme of scientific activities does not confer a title of territorial sovereignty. From 1873 to 1876, the British oceanographic ship Challenger covered 69,000 miles across all the seas of the globe. If the Chinese reasoning is applied, all the seas thus covered would belong to Great Britain. Han Zhenhua goes further: he affirms that China during that epoch installed an astronomical observation post on the Xisha(1). It is wondered what the mandarins sent to that post would do: bring along a stick everyday to measure the shade or follow seismic tremors with the seismograph of Zhang Heng? When the truth is exaggerated, it may be only a lie.

4. Shi Bi of the Yuan went across the Qizhouyang and Wanlishitang.

The Yuan Shi writes as follows about the expedition conducted by Shi Bi in 1293 to attack Java:

"In the 12th month, Bi led 5,000 men, gathering the troops in Quanzhou; the wind was violent and the sea rough, the junks were violently shaken, and the troops could not eat for several days. After Qizhouyang, Wanlishitang they reached the border between Kiao Che and Champa.

In the 1st month of the following year (1294), they arrived in the islands of Dong Dong, Xi Dong, San Niu, then crossed the immense ocean and laid anchor at the islands of Kanlan, Karimata, Koulan to cut wood and to build canoes to penetrate the interior".

For the return to Quanzhou, Shi Bi spent 68 days and lost over 3,000 men. In 1975, Li Zhu recalled Shi Bi and considered it a proof that under the Song and the Yuan the seas near the islands of the Southern sea belonged to the maritime space of China. Thus the Shi Bi expedition was turned into a sea patrol. Pan Shiing also said that "since the time of the Yuan, the Chinese navy has placed the Nansha archipelago in the sphere of its patrols", and this general affirmation has no supporting evidence. He affirmed that Shi Bi had led his naval troops to Wanlichangsha.

With regard to the attempt of showing the itinerary followed by Shi Bi, it is simply useless since the Yuan Shi clearly says that this route passed by Qizhouyang, Wanlishitang then Kiao Che, Champa by following the coast. Han Zhenhua referred to the history of Shi Bi to affirm that Qizhouyang corresponds to the Xisha, and Wanlishitang to the Nansha.

5. General Wu Sheng patrolled the sea of the Xisha.

The Chinese MFA mentions the fact that General Wu Sheng carried out patrols in the Xisha sea, and Han Zhenhua again quoted it.

The Quan Zhou Fu Zhi writes:

"From Qiongya, General Wu Sheng passed by Tonggu, Qizhouyang, Sigensha, covering 3,000 li and himself made the patrols."

When he was deputy-commander of Guangdong from 1710 to 1712, general Wu Sheng created the post of commander of the regional navy. He tried to capture the sea pirates, and to repress the rebels in the region of Jinmen, Xiamen, Pescardores, and Formose. The above mentioned excerpt shows the patrol route that he carried out himself. The points he passed by lay in the coastal region of the island of Hainan and that patrol was, in fact, one around the island of Hainan. In his Geography of Guangdong published in 1909, Li Hanzhung writes more precisely:

"Today, the maritime frontiers are limited in the South by the island of Hainan, beyond this limit is the Qizhouyang. The Admiral commanding the navy of Guangdong stopped his patrol there and returned [to his base]."

6. In 1909, Admiral Li Zhun landed on the Woody island of the Xisha archipelago to affirm Chinese sovereignty.

By order of the Governor of the two Guang, Zhang Renjun, Admiral Li Zhun conducted three gunboats to the sea of the Xisha. On June 6, 1909, his vessels arrived in the archipelago, landed on the island Phú Lâm (Boisée island - Woody island), hoisted the flag, fired some salvoes, then visited some other islands before returning to Canton. At that time, the Qing were on the brink of collapse and under the increasing pressure of foreign powers which multiplied their demands. Internally, they were hard-pressed by the revolutionary movement which redoubled its activities to seize power. In 1907 the Japanese claimed the Dongsha archipelago (the Pratas). Li Zhun's lightning-demonstration of force against some islands of the Xisha was aimed at calming the popular anger which demanded a firmer attitude vis-a-vis foreign powers. Until the landing of Li Zhun, for several centuries, the Chinese government had tacitly acknowledged that the Hoàng Sa and the Trường Sa belonged to Vietnam. It even happened once that the authorities of the district of Wenchang had given assistance to the members of the Hoàng Sa Company on duty on the Hoang Sa in 1753, and had returned them to their country of origin with an official letter to the seigneurs Nguyễn in Phú Xuân. This sudden change of attitude vis-a-vis the Xisha manifested by the military expedition of Li Zhun was prompted by a long-term scheme of annexing the Xisha and the Nansha in favourable conditions. That was the moment of the withdrawal of France from Indochina and the tardy arrival of Vietnamese relief troops in the Eastern part of the Hoàng Sa archipelago. That was the moment of the signing of the Sino-American joint communique giving China a free hand to annex in 1974 the remaining part of the Hoàng Sa archipelago. That moment was 1988 when Vietnam had to cope with artillery war in the Northern part of the country and encirclement by hostile forces on an international scale, and China began its plans of expasion in the sea Biển Đông. The landing of Admiral Li Zhun on the Xisha was a violation of the sovereignty of Vietnam, since this archipelago had belonged to Vietnam for a long time.

7. The sovereignty of China over the Xisha and the Nansha has been widely recognized internationally.

The Chinese MFA estimates that the sovereignty of China over these two archipelagoes has been recognized by:

- Many governments (that of Vietnam included);

- Specialized international organizations(20);

- Many encyclopedias and maps of other countries.

It is not necessary to go more deeply into the question of recognition by the specialized international organizations, by encyclopedias and maps because this question is not a crucial one. The Regulations of these international organizations (ICAO, WHO, UIT..) stipulate that all their decisions cannot absolutely signify their recognition of the sovereignty with regard to one certain country or territory. As for the encyclopedias, if there are those which consider the Xisha and the Nansha as belonging to China, there are others which consider them as belonging to Vietnam or to no country. For the maps, lawyers take into consideration maps attached to treaties; other maps have but a minor value.

The present study is mainly aimed at examining the recognition by the concerned governments. Until 1939, the Hoàng Sa and Trường Sa archipelagoes were always administered by France on behalf of the Annam Empire. Sometimes, China claimed its rights, however it rejected all French proposals regarding a friendly solution or an arbitrated solution. From 1939 on, Japan occupied both of the archipelagoes until their evacuation.

During World War II, US President F. D. Roosevelt, the President of the USSR, J. Stalin, and the British Prime Minister, W. Churchill met three times in Teheran, Yalta, and Postdam to discuss the conduct of the war and their cooperation during and after the war. President Roosevelt, Prime Minister Churchill and Marshal Tchang Kaishek held a secret meeting in Cairo to discuss the efforts to put an end to the war against Japan and the settlement of the Asian territories occupied by Japan. These were extremely important summit conferences to fight fascism and to prepare the way for a better world.

For countries of North Eastern and South Eastern Asia, the particularly important question was that of the territories occupied by the Japanese. At the outcome of the discussion in Cairo, the representatives of the USA, Great Britain and China published a Declaration which reads in part:

"The objective of the three countries is to eliminate Japan from ail the territories of the Pacific that it has usurped or occupied since World War I in 1914 and all the territories that Japan has taken from China such as Mandchouria, Formosa, and the Pescadores, will be returned to the Republic of China".

Any observer can easily note that the Cairo Declaration makes no mention of the Paracels and the Spratly archipelagoes that China intendedly considered its own territory. Marshal Tchang Kaishek attended in person this summit and had discussions for four days with the American and British leaders without raising the problem of the Xisha and the Nansha in the chapter of territories occupied by Japan. In the said unanimously adopted declaration, there is no reservation or separate statement of the Chinese representative regarding the Paracels and the Spratly archipelagoes. This fact clearly shows that there was no question of giving back these two archipelagoes to China.

In the 26 July 1945 Postdam Declaration, the American, British, and Chinese leaders affirmed:" The clauses of the Cairo Declaration will be implemented". For its part, after declaring war against Japan, the USSR adhered to this Declaration. In his 4 December 1950 Declaration, the Minister of FA Zhou Enlai thought the principal foundations for a peace treaty with Japan were in the Cairo Declaration, the Yalta Agreement, the Postdam Proclamation and the essential measures regarding Japan since its surrender(3).

On 12 July 1951, the draft Anglo - American peace treaty with Japan was published. Neither the People s Republic of China nor Taiwan was invited to participate in the Conference in San Francisco. Chinese Minister of FA Zhou Enlai, after commenting pointby-point on the treaty, stated: The archipelagoes of Xisha, Nansha, Pratas, Zhungsha and the island of Nanwei (Spratly island - author) have always been in all times Chinese territories (4).

In San Francisco, 51 delegates representing the concerned States demanded the settlement of the question of the Paracels and Spratly archipelagoes in accordance with the Cairo Declaration, the Yalta Agreement and the Postdam Proclamation. The Soviet delegate, A.Gromyko, proposed the transfer of the Paracels and Spratly archipelagoes to China, but his motion was rejected by 46 votes and 1 abstention. The delegate of Vietnam, Prime Minister Trần Văn Hữu, stated: "The Hoàng Sa and Trường Sa archipelagoes have long been Vietnamese territories". There was no protest nor reservation on the part of other delegates. The peace treaty with Japan was finally signed on 8 September 1951 stipulating in Article 1, Paragraph 7:

"Japan renounces all rights, titles, and revendications regarding the Paracels and the Spratly".

In the Peace Treaty signed on 28 April 1952 between Japan and Taiwan, Article 2 says:

"The. two parties recognize that in conformity with Article 2 of the Peace Treaty signed in San Francisco on 8 September 1951 with Japan, the latter has renounced all rights, titles- revendications concerning Formosa, the Pescadores, as well as the Paracels and Spratly archipelagoes".

So, during and after World War II, all the most important international conferences, which had the purpose of resolving the question of the Asian territories captured or occupied by Japan and in which the highest representative of China participated, refused to hand the Paracels and Spratly archipelagoes to China. Consequently, these archipelagoes must return to France and Vietnam, which had always administered them until the occupation by Japan. It is clear that there is no such reality as "a large international recognition". It is precisely because the clauses of the Cairo Declaration are so explicit that the Chinese Minister of FA said nothing about it in his document of 30 January 1980. The same is true for the San Francisco Peace treaty, about which he could only recall the fact that the former Japanese Minister of FA, Otara Kissasuo, who did not signed the map attached to the Peace Treaty, did sign those of an atlas, to say the four archipelagoes were "Chinese territories".

* * *

The Chinese authorities have taken recourse to many ancient documents spreading across some 2000 years of history, including some official books, the remaining being books of geography or maritime navigation. The first result obtained is that they have

made a profound impression by the number and variety of the documents. However, they have not yet had a convincing effect on the readers. The following remarks can be made:

1. In a conflict on the sovereignty of lands having no owners, especially those disseminated on such large sea expanses as the Paracels and the Spratly, the identification of the toponyms and the locality of each archipelago, island, shoal, and reef are extremely necessary, but the historical writings and the conclusions of the

Chinese authors cannot provide any convincing conclusions.

2. The documents have given abundant information on the fact that the Chinese have known the sea and performed maritime navigation. But they are not able, however, to give solid and concrete proofs of the discovery by China in the juridical meaning of the term of the two archipelagoes or certain islands thereof, particularly of the occupation of the islands, the date and the manner of implementing this occupation.

3. The proofs given for the administration of the islands are essentially related to the Xisha: the "maritime patrols", "the exercise of territorial sovereignty" invoked as examples are but the result of falsification of the texts and have no value. With regard to the Nansha, there are only meaningless details.

4. The three international conferences held during and after World War II (the Cairo summit conference, the conferences at Postdam and San Francisco) systematically rejected the handing over of the Paracels and the Spratly to China.

5. The so-called "inspection" by Admiral Li Zhun in 1909, the occupation of the Hoàng Sa in 1956 and 1974 and a number of shoals and reefs of the Trường Sa archipelago in 1988, 1992, and 1993 are but acts stemming from the use of force in relations between states, contrary to international law and principles of the United Nations. Under international law presently effective, occupation by force does not confer the right to territorial authority.

(Source: Chaper II in LƯU VAN LII “THE SINO-VIETNAMESE DIFFERENCE ON THE HOANG SA AND TRUONG SA ARCHIPELAGOES” THẾ GIỚI PUBLISHERS, HANOI — 1996)

*Document made available by Truc Le.