By Luu Van Loi

From the comparative study of the Vietnamese and Chinese titles vis-a-vis the Hoang Sa and Truong Sa archipelagoes, the following conclusions can be drawn:

I. FROM ANTIQUITY TO 1909

The Chinese party has quoted many books, from the period of the Three Kingdoms (220-265) to contemporary times, particularly the books of the Song, Yuan dynasties and later. Only a few writings can be considered official, the remaining being works of voyage accounts, geography, monographs, etc. All these writings say that the Chinese in the distant past knew of the existence of the Jiuruluozhou, Shitang, Quanglishitang, Wanlishitang, Changsha, Quanglichangsha, and Wanlichangsha which correspond, according to the given explanations, to the Xisha, Nansha, Dongsha and Zhungsha of today, although the clear distinction between these four archipelagoes is not yet scientifically settled. In the case of the Palmas, a single island had four names and arbitrator Max Huber had to begin with its identification. Thus, given the present situation, when there are a great number of islands and names, the identification of these islands with their precise names cannot be neglected. If one only sees the land without taking any, even a symbolic one, of possession, or if one hears a land spoken about without taking any subsequent action, it cannot be a question of title of sovereignty. To create a title is not enough, the title must be maintained. To create a title and to maintain it are two different things. Suppose that the names invoked by China actually exist. It is not enough to have a title for, from the juridical point of view, knowledge cannot be confused with discovery followed by taking possession - the first elements for the creation of an original title. For the period from the Three Kingdoms to 1909, or more than 16 centuries, the Chinese party has been able to give only three facts proving its sovereignty: the so-called maritime patrols in the region of the Xisha, the astronomical observations of Guo Shoujing (1279), and the so-called patrols by General Wu Sheng (early 18th century) down to the Xisha. The first fact results from a falsification of the Wu Jing Zong Yao; this book only speaks of the itinerary from Canton to India via Jiurulouzhou for the requirement of the Xisha contention. Under the Yuan, the limits of the Chinese Empire stopped at the island of Hainan; the astronomical observations of Guo Shoujing carried out "beyond the island of Hainan" were then outside the Chinese territory. The third fact is simply the patrols carried out by General Wu Sheng around the island of Hainan, and not the patrols in the seas of the Xisha. It should be pointed out that, regarding the exercise of its jurisdiction in the Nansha, China has not been able to produce any valuable evidence; what is called "the sea patrol of the Nansha" was nothing but an expedition of a Mongolian General against Java. The three facts invoked are truly insufficient for so long a period; moreover, they only concern the Xisha. It can be affirmed that until 1909 China did not once protest against the occupation, exploitation and administration of the Hoang Sa by the Vietnamese feudal State: it had even tacitly recognized this state of affairs. The response of the authorities of Guangdong in the affair of the ships Bellona and Imezi Maru was a reflection of reality: the Xisha do not belong to China. Even before the principle of effectiveness stipulated in the General Act of Berlin, the acquisition of territorial sovereignty already included two elements: first, the material element (the corpus) i.e. the discovery, and the intentional element (the animus). The discovery must be the result of facts of a certain nature and emanate from specific authorities. Arbitrator Max Huber wrote:

"In the 19th century, considering the majority of the parties of the globe were under the sovereignty of the member States of the Community of Nations and the territories without owners had become relatively rare, international law took into consideration an existing tendency particularly developed ever since: to constitute a pretension to territorial sovereignty, occupation should be effective, i.e. offer certain guarantees to other states and their rationals"(45).

Of course, the required degree of effectiveness during this period was not so stringent as the clauses of the Act of Berlin. Discovery and following possession and the intention to be the sovereign are the three necessary elements to claim a title of sovereignty, and these are the three things that China does not have. At least, since the 17th century, the Vietnamese feudal State had discovered the Bãi Cát Vàng (i.e. the Hoang Sa) in the Biển Đông, had reclaimed it and had held it under its jurisdiction. The criteria required at that time to acquire sovereignty vis-a-vis a land res nullius were sufficient for Vietnam.

1. The archipelago was discovered, occupied, and administered by the Vietnamese feudal State through the creation of a State organization handling at the same time the tasks of exploiting and governing the islands. The sovereignty title of Vietnam vis-a-vis the Hoang Sa was affirmed, maintained and consolidated at least from

the period of the Seigneurs Nguyễn to the installation of the protectorate regime in 1884.

2. The Hoang Sa company was a form of state organization under the Seigneurs Nguyễn governed by rigorous principles of organiza tion and function. "Although continuous in principle, sovereignty cannot be exercised all the time all over the territory. Intermittence and discontinuity compatible with the maintenance oflaw necessarily varies, depending on the regions being inhabited or uninhabited, or regions surrounded by territories over which sovereignty is incontestably exercised, or in accessible regions, for instance, from the high seas"(46). Wherever there are no conditions for a continuous sojourn, like in the rigid boreal or austral regions, a continuous occupation is practically impossible. This fact was accepted in the affair or Eastern Greenland. J.P. Ferrier adds the factors of periodicity due to the succession of monsoons, the date of the contract, or the seasonal character: "Intervals of several years have not been considered incompatible with the maintenance of the sovereign right of the Netherlands over the island of Palmas"(47).

The continuity of the exercise of sovereignty by the Vietnamese feudal State until the colonial period must be understood not only as from one year to another, but for, at least, over two centuries.

1. The Hoang Sa have been placed in the Vietnamese territory, actually in the prefecture of Quảng Nghĩa transformed later to province, as indicated by books of history and geography, elaborated by the History Institute of the Court.

2. Under the plan aimed at establishing the "Địa bạ Gia Long" (Land register of Gia Long), from 1805 to 1836, the Nguyễn dynasty sent the Company to Hoang Sa for the establishment of maps and the measuring of maritime routes.

3. Conscious of the responsibilities of his country in the Community of Nations, in 1833, King Minh Mạng gave orders to the Hoàng Sa Company to plant a great number of trees on the Hoàng Sa to allow boats to see the islands from a distance and thereby elude wreckage. From the Seigneurs Nguyễn to the Kings Nguyễn, the Vietnamese feudal State repeatedly rescued endangered ships in Hoàng Sa by supplying food and medicine to survivors. As Huber says, they have thus "offered certain guarantees to other States and their nationals' .

4. For many centuries, there was no dispute whatsoever on the part of other countries, from immediate neighbours, first of all, from China, the Philippines or from Western powers then in quest of new lands and new markets, such as Portugal, Spain, the Netherlands. The fact that China has tacitly recognized the Hoàng Sa Company or declared that the Xisha are not Chinese is acknowledgement of the Vietnamese occupation and abandonment of its title. "Consolidation can be applied to territories the anterior appurtenance of which to another State cannot be established. It can be acquired not only by explicit acknowledgement, but more easily, by the sufficiently prolonged absence of opposition on the part of the States concerned in contesting the possession!"(49)

From 1884 on, with the signing of the Treaty establishing the French protectorate, the situation of the Vietnamese State underwent a fundamental change: France represented Vietnam in its external relations. The sovereignty of Vietnam vis-a-vis the Hoàng Sa and Trường Sa archipelagoes always existed with the only change that France then had to defend it "on behalf of the King of Vietnam". In brief, until 1909, the historical and juridical title of  Vietnam vis-a-vis the two archipelagoes is unquestionable; the Vietnamese sovereignty is real and effective.

II. FROM 1909 TO THE PRESENT DAY

In 1909, the lightning disembarkation of Admiral Li Zhun, implementing an order of the Governor of the two Guang, Zhung Renjun, on the island Phu Lam (Woody island) marked a sudden change of Chinese attitude regarding the Xisha archipelago: China wanted to affirm the so-called sovereignty over that archipelago,

which ten years before it considered non-Chinese land. This fact also marked the beginning of a sovereignty conflict with Vietnam.

1. Today, after 85 years, the conflict of the Hoàng Sa including the Trường Sa archipelago has developed in a complex manner and in a complex international background, after the two World Wars and the Cold War. If we examine only the facts related to the conflict of the archipelagoes, we shall see that the internal situation of the States concerned and the international situation have led to a succession of the States and change in the composition of the parties in conflict.

- The application of the provisions of the 1954 Geneva Agreement led to the division of responsibility between the Vietnamese regard ing the administration of the Hoàng Sa and Trường Sa archipela goes: the Democratic Republic of Vietnam, the Republic of Vietnam, the Republic of South Vietnam, and, finally, the Socialist Republic of Vietnam after its reunification.

- In China, three governments have succeeded each other: the Qing dynasty, the Republic of China, and the People's Republic of China. Taiwan continues to exist and maintains its claim relating to the Xisha and Nansha archipelagoes: it actually occupies the island Itu Aba, the largest island of the Nansha.

- Many parties to the conflict have put an end to their claims and retired from the conflict whereas new parties have emerged. Vietnam has recovered its total independence. Japan has evacuated the two archipelagoes, and has undertaken to renounce any right, any title and any pretention regarding the Paracels and the Spratly. Great Britain has declared its withdrawal from the conflict of the Spratly; on the other hand, since the 1970s the Philippines and Malaysia have occupied a number of islands and shoals in the Spratly. The Philippines reclaims all the Truong Sa archipelago, except the Spratly. The PRC has occupied the Xisha archipelago, and in its march southwards to the Bien Dong Sea, has occupied a number of reefs and shoals and a part of the maritime zones of the Spratly. The present situation is as follows:

The Hoàng Sa archipelago has become a bilateral question between Vietnam and China (including Taiwan).

The Trường Sa archipelago has become a multilateral question between Vietnam and three other countries: China (Taiwan included), the Philippines, and Malaysia.

2. From the above analysis, since 1909, the conflict of the Hoang Sa involved only France and Vietnam (which France represented as of 1884) and China, the only country contesting the rights of France and Vietnam. At that moment, the title of Vietnam regarding the Hoang Sa was achieved and the two archipelagoes became Vietnamese territories. The landing by Admiral Li Zhun on the island Phú Lâm (Woody island) can only be considered an encroachment on the sovereignty of Vietnam. Three times, in 1932, 1937 and 1947, the French Government proposed to the Chinese Government either a friendly settlement or an arbitrated solution, but the Chinese Government rejected the proposals.

The PRC used force to seize all of the Hoàng Sa archipelago in two phases, and recently occupied a number of reefs and shoals of the Spratly (from 1988 to 1993), bringing the development of the situation to a particularly serious turning point. The Charter of the United Nations prohibits the resort to threat or the use of force against the political and territorial independence of the States (Article 2 and relevant provisions). On the basis of the principle of forbidding the resort to force and the principle of the right of peoples to decide their own affairs, in 1970 the UN General Assembly approved the Declaration regarding the principles of international law concerning the friendly relations and cooperation among different States in accordance with the UN Charter:

"Any State must refrain from any action aimed at breaking partly or totally the territorial unity and integrity of another State or another country".

"The territory of a State cannot be the object of a military occupation resulting from the use of force at variance with the provisions of the UN Charter. The territory of a State cannot be the object of an acquisition by another State as the result of a resort to threat or a use of force; no territorial acquisition obtained by threat or the use of force will be recognized as legal".

"Any State has the obligation to refrain from resorting to threat or to the use of force to violate the existing international frontiers of another State or as a means for the settlement of international differences, including territorial differences and questions relating to the frontiers of States"(50).

The occupation of the Hoàng Sa archipelago and a number of reefs and shoals of the Trường Sa archipelago by force cannot be recognized as legal and cannot, in consequence, constitute territorial sovereignty.

3. During the period from 1909 to its withdrawal from Indochina in 1956, France proved to be hesitating while it was meeting with multiple difficulties in the pacification of Tonkin and had no force to seriously address the distant archipelagoes; and, above all, it did not yet understand the solidity of the Vietnamese titles. Therefore, it did not react in time in face of the Li Zhun's operation. But later, through patrols, reconnaissances, the creation of administrative units, and the installation of a garrison on the Hoàng Sa archipelago, the Indochinese authorities actually exercised the sovereign rights of Vietnam over this archipelago. In the Trường Sa archipelago, the

occupation of the principal islands and the dependent islets by French naval units with official notification to other States further strengthened the title of sovereignty of Vietnam vis-a-vis this archipelago.

On the Vietnamese side, the Government of the RVN, on which fell the administration of South Vietnam, south of the 17th parallel, energetically protested, by diplomatic action and by armed resistance, against the attack on the Hoàng Sa archipelago by the PRC. It is, however, an undeniable fact that the authorities of the two zones of Vietnam have not at any time renounced the title of sovereignty vis-a-vis the Hoàng Sa and the Trường Sa. The absence of reaction by the French authorities in the face of the operation of Admiral Li Zhun was, of course, negative, but the evident fact is that France had never renounced Vietnamese sovereignty vis-a-vis the Hoàng Sa and the Trường Sa archipelagoes and had always defended the Vietnamese rights over them until its withdrawal from Indochina. The French authorities did not at any time recognize the Chinese sovereignty; even when they kept silent in the face of such and such act of China, the sovereignty of Vietnam vis-a-vis the archipelagoes remained intact. When there were opportunities, responsible personalities of the Bảo Đại Government reaffirmed the rights of Vietnam over the Hoàng Sa archipelago: the War Minister Thân Trọng Huề; Prince Bửu Lộc, Chief of the Bảo Đại cabinet; the Prime Minister and Minister of Foreign Affairs Trần Văn Hữu. A territory can be considered abandoned only when the material and intentional elements which coincide to realize sovereignty are both lacking.

"In international law, the derelictio results from two elements: materially, the absence of effective administration on the territory in question, and psychologically, the intention of abandoning the territory"(51).

"It follows from these premises that the island of Clipperton was legitimately acquired by France on 17th November, 1858. There was no reason to think that France would subsequently lose its right by derelictio because it never had the animus to abandon the island, and the fact of failing to exercise its authority in a positive manner

does not imply the forfeiture of an acquisition already definitively achieved"(52).

"The fact of having not actually occupied the island has nothing against these titles because for the loss of sovereignty, the abandonment of possession does not suffice. There must be also a renouncement of the animus possidenti"(53).

Compared with the Chinese title, the Vietnamese title is obviously superior. The sovereignty of Vietnam over the Hoàng Sa and the Trường Sa archipelagoes has been legally acquired and effectively exercised in a peaceful manner for several consecutive centuries.

III. IT IS CLEAR THAT VIETNAM HAS UNDENIABLE RIGHTS OVER THE HOÀNG SA AND TRƯỜNG SA ARCHIPELAGOES

But it is also clear that there is conflict between Vietnam and China about the Hoàng Sa archipelago and between Vietnam, China, the Philippines and Malaysia regarding the Trường Sa archipelago. The UN Charter stipulates that the parties to an international dispute must find ways to settle it by peaceful negotiations, enquiry, mediation, conciliation, arbitration, judicial settlement, resorting to regional organisms and agreements or by any other peaceful means of their choice.

The consistent policy of the Government of the SRVN consists in peacefully settling any conflict or disagreement with other countries by peaceful means.

Prompted by this policy, the Government of the SRVN has many times - three times in 1988 alone -- proposed to the Government of the PRC that negotiations be pursued in a spirit of equality, mutual respect of independence, sovereignty and territorial integrity. In September, 1975 the leader of the CPC Deng Xiaoping said to the Vietnamese leader Lê Duẩn:

"The Chinese party has sufficient evidence to demonstrate that the Xisha and Nansha archipelagoes, from the distant past to the present, have been Chinese territories. But according to the principle of friendly negotiation to settle differences, I declare: it is possible to negotiate and to discuss"(54).

After many meetings, even at high levels, the two parties concurred that by late 1994, the experts of the two parties would meet to discuss the questions relating to Biển Đông Sea. Let's hope that the negotiations will take a favourable development. When the Biển Đông Sea becomes a place of confrontation of different geopolitical interests, a peaceful solution to the problem of the Hoàng Sa and Trường Sa archipelagoes will serve not only

the interests of the parties concerned but also those of peace, security, cooperation and development in SEA.

Hanoi, March 1994

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

Comments

Add New RSS

Write comment
Name:
Email:	do not notifynotify
Website:
Title:
UBBCode:	-color-aquablackbluefuchsiagraygreenlimemaroonnavyolivepurpleredsilvertealwhiteyellow -size-tinysmallmediumlargehuge
	Please input the anti-spam code that you can read in the image.

Powered by !JoomlaComment 3.23

3.23 Copyright (C) 2007 Alain Georgette / Copyright (C) 2006 Frantisek Hliva. All rights reserved."