Chapter I Background Information on The Paracels and Spratlys

In order to clarify the vexed question of international law, the central issues of which have just been outlined, it is essential to provide a geographical description of the territories, a breakdown of the various elements comprising the legal issues and the main strands of the chronology of events on which the legal argument may be based. GEOGRAPHICAL BACKGROUND The island territories of the South China Sea are not all concerned by the current disputes, which relate to only two archipelagos, now easily identifiable on nautical charts. The factual information collated here will be set forth separately for the Paracels and for the Spratlys. The enormous difficulty of precisely identifying all the elements comprising these complex geographical configurations must be underlined. In addition to the main islands, there are any number of rocks, sandbanks, atolls, and coral reefs, some of them tiny. The topography is obscured by the coexistence of different systems for naming the islands. Chinese, Filipino, Vietnamese, French and English names have been superimposed on each other, without any clear correspondence between them. Referring to one system of names rather than another is not without symbolic significance. In this book we shall therefore use the English names, the least suspect since they do no not correspond to any particular claim.

General facts
Both archipelagos form part of four groups of coral islands scattered over the South China Sea.1
1

The use in this book of this name, still widely used in geography textbooks although nowadays contested by Vietnam, obviously does not imply any support for Chinese claims regarding delimitation.

16

Chapter I

The other two (Pratas Island and Macclesfield Bank) are not the subject of any dispute over sovereignty. The archipelagos sprawl over a sea bounded by many territories. China, Vietnam, Malaysia, Brunei and the Philippines form a crown around it. These lands have little in the way of a continental shelf. The exceptions are China, and to a lesser extent Vietnam, especially south-west Vietnam. The Paracels and Spratlys, however, lie well beyond the geological continental shelf, in the middle of a maritime zone which reaches a depth of over 1,000 metres close to the Paracels and around 3,000 metres north-east of the Spratlys. From the legal standpoint, such facts are important, since no neighbouring State is able to claim rights over the archipelagos on the grounds that they belong, in geomorphological terms, to the continental shelf of any particular country. The islands and islets do not emerge from a zone of deep ocean floor which may be considered to be the natural prolongation of the land territory of a particular State. This argument, as will be seen in the following chapters, is however immaterial, since sovereignty over an island formation is independent of the links between that formation and the subsoil of the sea. A few facts will underline the islands' geopolitical or geostrategic importance, which stems from the major role played by this maritime zone in global navigation. To the south-west, the South China Sea connects with the Indian Ocean via the Straits of Malacca and Singapore, to the north-east it meets the East China Sea, which in turn connects with the Sea of Japan via the Strait of Korea. No global maritime power can afford to ignore this sea. A glance at the map reveals that all maritime traffic traversing this sea is obliged to pass between the two archipelagos. The importance of sovereignty and consequently strategic control over these groups of islands therefore needs no emphasis. Lastly, the islands are uninhabited. Their small size has never allowed any human development. Traditionally they have served as outposts for seasonal fishermen. That aside, they have harboured only garrisons or, very recently in the Paracels, a population of administrative origin, part of the enormous drive to develop an infrastructure.

Background Information The Paracels

17

Essentially, the Paracels lie between latitude 16° and 17° north and longitude 111° and 113° east. They consist of two main groups: the Amphitrites and the Crescent group, which lie some 70 kilometres from one another.2 Added to these are a number of islands and isolated rocks. In the west, the Crescent Group consists of 5 main islands: Robert Island (0.32 square kilometres), Duncan Island (0.48 square kilometres), Palm Island (0.09 square kilometres), Drummond Island (0.41 square kilometres), on which there are 5 tombs, and Pattle Island (0.3 square kilometres), which displays the remains of a landing stage and a channel. Some 12 kilometres away lies Money Island (0.5 square kilometres), then further south, Triton Island. Each island has its own coral reef, with openings enabling shallow-bottomed craft to beach. In the west, the Amphitrite group consists of Woody Island, Rocky Island, South Island, Middle Island, North Island, Tree Island, and to the east of this group, Lincoln Island. The largest of them is Woody Island, which is no more than 4 kilometres long and 2 to 3 kilometres wide.3 Apart from the two groups of islands mentioned above, the archipelago as a whole consists of over 30 islets, sandbanks or reefs and occupies some 15,000 square kilometres of the ocean surface, which explains the extremely dangerous nature of navigation in this vicinity, a fact borne out, travellers say, by the number of wrecks. It is the wrecks that signal the danger, in particular the steam kettles, which last longer thanks to their weight and which, owing to their size, can be spied from a long way off, surprising the uninitiated, who are thus at first at a loss to explain the nature of these protuberances on the reefs.4 Geologically speaking, the scientific studies undertaken during the period of French colonization by the da Lanessan, the results of which were collated in the notes published by Doctor A. Krempf, Director of the Oceanographic Service, indicate that the submarine shelf from which the reefs and islets of

2 3 4

See map in Annex 3. See list of islands and islets in Annex 4. P.A. Lapicque, A propos des lies Paracels (Saigon, Les editions d'Extreme-Asie), p. 3.

18

Chapter I

the Paracels emerge lies at a depth ranging from 40 to 100 metres, and is enveloped in a layer of coral. This is a surface which was formed in the period of glaciation and which, once again flooded by sea water after the glaciers retreated, constantly provided optimum conditions for the development of coral. At present, it is uniformly covered in living coral, sand and coral gravel. (Notes by Doctor Krempf). The climate is hot and humid, with abundant rainfall. There are frequent mists. The islands are swept by winds (which give rise to currents, further complicating navigation) and the area is frequently subject to typhoons. There is vegetation on all the islands: phosphorite growths, trees, short grass and bushes. On some of the islands there are freshwater springs. There are vast numbers of birds and a great many turtles. The economic resources can be divided into three groups: - The resource of the future is obviously the offshore petroleum deposits. The area is said to be promising, though as yet no precise data on actual expectations have been published. - The resource which has long been coveted and indeed still is and which has been exploited to some extent is the phosphate deposits. This is what the ground is made of in all the islands in the archipelago which are high enough above sea level for vegetation to have developed. These deposits have been formed from an originally calcium carbonate soil (coral). This soil has been covered by birdlime containing phosphoric acid and the humid climatic conditions have transformed it into phosphates. The layer of phosphates which varies in content (23 to 25 per cent in some places, 42 per cent in others) is frequently over 1 metre thick. This phosphate was mined between 1924 and 1926 by Japanese companies (and in some cases the deposits have been completely depleted, Robert Island being an example). The damage done at that time seems to have been substantial (trees felled, vegetation destroyed). In 1956, the Saigon administration authorized a Vietnamese industrialist, Mr Le Van Cang, to mine the phosphates in the Paracels. The Vietnamese Fertilizer Company was to continue this process from 1960 to 1963. The most recent detailed data available before the advent of Chinese control are those given by an engineer, Tran Huu Chan (August 1973), on the occasion of a mission undertaken at the initiative of the Saigon administration by Japanese and Vietnamese experts.5 This mission, which was concerned only with the Amphitrites (the Crescent group having been
5

See the report of this mission in 'Les archipels Hoang Sa et Truong Sa', Le Courrier du Vietnam, Hanoi, 1984, pp. 52 et seq.

The third . . though the conditions for mining them depended on a more detailed examination of the samples taken. cut off from any mainland or major island territory by ocean trenches up to several thousand metres deep.6 The Spratlys Once again we encounter a vast underwater platform in the middle of the South China Sea. The Case of the South China Sea Islands (London. and the total surface area encompasses almost 160. p. Routledge. though much further south than the Paracels. the only one with a surface area sufficient to support costly infrastructures. the hope that there might be pearl oysters. and particularly from 1974 onwards. However. the resulting income providing no more than a living for the fishermen's families. fishing for turtles has long been undertaken both by Chinese fishermen from a number of ports in the south of Hainan and by Vietnamese fishermen.000 square kilometres of water (over ten times bigger than the Paracels).Background Information 19 occupied by China since 1956) found that there were still major phosphate reserves left. However. does not seem to have been borne out. There are over one hundred of them. And a harbour was built by the Chinese Navy on Triton Island in 1982. and many rocky outcrops and sandbanks of varying size. islets. See the list of islands in Annex 4. Woody Island. It is not easy to identify the archipelago clearly (even less so than in the case of the Paracels) because the region includes widely scattered islands. named in several languages. Various documents and nautical charts reveal the existence of 26 main islands or islets. banks and rocks. has been equipped with an airstrip and an enlarged harbour.7 The respective claims will be studied and 6 7 See Chi Kin Lo. Its northern limit is latitude 12° north and its eastern limit longitude 111° east. Chinese activities throughout the archipelago have intensified. not an industrial one. On the other hand. 1989). 118. China's Position Towards Territorial Disputes.and renewable .resource (except in the case of uncontrolled exploitation which would lead to the local disappearance of certain species) is that of the marine fauna. . about which there had been much talk before World War II. Trawl fishing (which would offer a high return) hardly seems possible owing to the chaotic and jagged coral seabed. Since the full-scale Chinese occupation of the archipelago. when the Chinese occupied the western part of the islands (the Crescent group). this is carried out on a small scale.

313. the largest of which measures about 1 by 1. 'Treasure Islands'.8 As in the Paracels. identified on charts. 24 December 1984. When they administered the islands (between the two World Wars) the French noted the sporadic presence of a few Chinese fisherman from Hainan. A report by the Vietnamese exploratory expedition of 1973 stated that some islands were swarming with mosquitoes and rats. North-East Cay. at least such crops as withstand the heavily saline soil. comprising two main islands and three reefs. some a few coconut palms.20 Chapter I examined later. 15 May 1978. Malaysia. During the dry season. The distance from terra firma might cause problems (albeit not insurmountable) were large-scale fishing to be carried out.5 kilometres. The islands do not have and have never had a native population. a small island 0. According to Chinese sources. Lys Shoal. Newsweek. including Itu Aba Island which measures 1 by 0. Taiwan. and for the same reasons. Itu Aba is the most important island. having vegetation and fresh water. We shall merely note at this point that not all the islands are occupied. If wells are sunk. it is possible to find fresh water and to cultivate crops. having wells sunk by 8 9 See 'Inoccupation d'ilots de la mer de Chine' (1933) Asie Fmncaise no. a coveted resource. a coral ring. Others have a few bushes. Trident Shoal.3 kilometre long surrounded by extensive shallows. Loai Ta Island. Fishery resources appear to be considerable throughout the archipelago. Tizard Bank. comprising 4 islets (North Reef. measuring approximately 14 by 11 kilometre. which remain above the water at high tide. Some are bare of vegetation.000 tonnes. and one which was mined by the Japanese prior to World War II. covered only by sand and guano. the climate is torrid. . 266. There are two annual monsoons. Some are occupied by the Philippines. Subi Reef. one of which is about one kilometre long. Observers note that the islands are more reminiscent of Oceania than of East Asia. The reserves of phosphorus are currently estimated at 370. All the States which have staked claims currently maintain garrisons on one island or another. South-West Cay and South Reef).4 kilometre. The promise of oil is repeatedly mentioned in the international press and appears to have a solid foundation. China Daily. China and Vietnam respectively. the islands have seen a build-up of guano. The archipelago also includes seven groups of rocks. at p.9 The main islands and rocks are: North Danger Group. The islands are small. Thi Tu Island made up of two atolls. the Spratlys are thought to harbour a reserve of 25 billion cubic metres of gas and 105 billion barrels of oil.

the group of banks and reefs known as James Shoal is thought to be the site of a substantial reserve of gas and oil. and vegetation. roads and a helicopter hangar have all been constructed. Amboyna Cay is covered with vegetation and guano. The People's Republic of China. a late arrival (1988-1989) in this archipelago so far from its coast. Rifleman Bank is a large bank 56 by 24 kilometres. . Discovery Great Reef is ring-shaped. Further south. Spratly Island is a small island 0. despite the fact that this thankless spot lies under 50 centimetres of water during exceptionally high tides. and visited by fishermen of the region.75 by 0. then consider the applicable law for settling the dispute on a satisfactory basis. based on available documentation.5 kilometre long. THE LEGAL ISSUE In order to clarify the issue of title to sovereignty over the two groups of islands. near the Malaysian coast. its principal power base in the area. has been obliged to found its claims on mere sandbanks which are not always above sea level at high tide. The States competing to annex these minute outcrops have all gained a foothold here or there. The Philippines are present on Thi Tu Island and Loai Ta Island. although it does not normally stand clear of the water. Nam Yit Island is 0. although few of them would support facilities. of the archipelagos so hotly disputed and so stridently claimed by various States. Vietnam controls Spratly Island. The centre of the archipelago is 'dangerous ground'. forming a semi-open lagoon containing some higher reefs. we need to ask a first set of questions on the nature of the disputed territories and the nature of the dispute. This completes our brief review. so dangerous that most vessels will not go near it. coral formations having been dynamited and the ground level raised over a sufficiently large area.4 kilometre. The Taiwanese Navy maintains a garrison of almost one thousand men on Itu Aba Island. for exampie. London Reef complex comprises 4 shoals. with water and vegetation. Major construction work has been carried out on Fiery Cross Reef.Background Information 21 the Japanese. Fiery Cross Reef is an area of shallows approximately 26 kilometres long. A wharf. It is also a source of guano and a breeding ground for turtles.

I (Paris. 1953. coral reefs and rocks. See Gilbert Gidel. since the life of the oceans and geological movement within the earth's crust may trigger off abrupt or gradual upheavals perhaps obliterating certain territories which used to protrude above the water. 'a naturally formed area of land'. I I . Article 121 of the Montego Bay Convention of 10 December 1982 uses a geological criterion. the reply would not seem to be in doubt for either archipelago. vol. However.10 For scholarly opinion. 137-278. .' l2 There is also a hydrographic criterion: protruding above the high-water line. silt. It needs to be asked.11 The debates at the Third United Nations Conference on the Law of the Sea revealed the great complexity of the problem. The concept of land which is capable of appropriation was raised before the International Court of Justice in the Minquiers and Ecrehos case. Although the status of certain fringes is doubtful. 12 Laurent Lucchini and Michel Voelckel. at pp. nor whether it includes exceptional tides. etc. However it does not resolve the difficulty of defining high water. 331. Droit de la mer. Reports. at pp. 49 and 53. there is no doubt that the main islands. 'La mer territoriale et la zone contigue" (1934) Recueil des Cows de I'Academie de Droit International. On the other hand. 48.22 Chapter I Category of territory and identification of the dispute The nature of the disputed territories Examining the nature of the territories means asking two questions: a) Do they constitute lands which are capable of appropriation? The question is all the more relevant in that the archipelagos are composed of a sprinkling of banks. but also islets. p. vol. Artificial islands are thus excluded. The fringes are then seen as accessories to the main islands. coral. among which there are a few proper islands. madrepore.. to be capable of appropriation an island territory must apparently present at high tide a surface of land clear of the water which is large enough to be habitable in practice. sand. Both archipelagos contain many islands. Some authors add that the islands must also be shown on geographical maps. This distinguishes islands from low-tide elevations. 1990). clearly identified on nautical charts. are capable of appropriation. sandbanks. islets and rocks. anything makes an island. 'Mud. 10 11 International Court of Justice. Pedone. the nature of the area of land matters little. rocks.

however. This is the crux of the current dispute. whether the annexation of the archipelagos. The appetite of States for maritime territory is growing in line with the role of fisheries in national economies. the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory. Article 121. states: Except as provided for in paragraph 3. . Strategies are hesitant.Background Information 23 Therefore the dispute indeed concerns lands which are capable of appropriation. of the United Nations Convention on the Law of the Sea is applicable to these islands. is a prerequisite. despite the fact that the protagonists hesitate as to the best attitude to adopt in order to serve their own interests. each attempts to persuade all the partners that all the islands are habitable. paragraph 2. and the importance of finite oil and mineral resources in certain key industries. international law allows for delimitation between States with adjacent or opposite coastlines. The titleholder must be established before identifying the resultant rights to adjacent waters and the States between which the delimitation will be effected.e. Each State claims possession of the land and international recognition of what it considers to be an ancient title. b) Are these territories the kind which entail the attribution of extensive maritime zones to the State which has sovereignty over them? This question is tantamount to asking whether Article 121. It could be argued that these are rocks calling for the application of paragraph 3 of the same article: Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.the decisive issue is control of the resources of the sea.our strict focus here . the contiguous zone. In order to decide between competing desires for maritime space. Hoping for a favourable outcome. islets and rocks. in itself. Sovereignty. the territorial sea. Looming behind the question of title to sovereignty . gives exclusive rights to the living resources of the sea or the resources of its subsoil within the limit of 200 nautical miles around the land in question. paragraph 2. thus multiplying the maritime areas which would fall under its national control. i.

since taking military control. navigators and geographers described inhospitable lands occupied only by seasonal fishermen. 14 . pp. The Maritime Political Boundaries of the World (London.24 Chapter I However. Pending settlement of the conflict . when it comes to the claims of others.14 Do fishing or the mining of guano constitute adequate activities? For a reply to these questions. In the Paracels particularly. until the end of World War II. For example. 1985). since the text does not say 'uninhabited rocks' but 'rocks which cannot sustain human habitation'. In places where. 72 el seq. airstrips. this is also found. Prescott.R. All this has made the words 'sustain human habitation' lose their original meaning. Therefore cases where the islands serve as outposts for activities which in fact are based in another territory cannot be taken into account. the interpretation of the wording 'rocks which cannot sustain human habitation' becomes more punctilious. we must interpret Article 121. The rocks must sustain human habitation. This has been encouraged because the above-mentioned paragraphs of the United Nations Convention on the Law of the Sea. The various States which have occupied islands in the Spratlys have also expended a great deal of energy on similar schemes. the Chinese have carried out spectacular development projects. Ibid. left several difficulties unresolved.certain parties have not hesitated to change the original reality. eliminating the hypothesis that they might be equipped to make them suitable for this.V. then that is found on the main islands in both the Paracels and the Spratlys. Similarly. sustained by a feat of military logistics.which steadily recedes as positions harden . in an endeavour to curtail the number of islands which would give rise to broad rights over the adjacent waters. The wording of the text indicates that artifice must be eliminated. New York. of the Montego Bay Convention. Once again. Methuen. How to distinguish between an island and a rock? Under what conditions are human habitation on an island or an economic life of its own feasible? 13 The last paragraph of Article 121 leaves a great deal to interpretation. The alternative to that condition is the possibility for an island to have an economic life of its own. if the criterion for human habitation is the presence of fresh water. mention is made of an economic life of their own. itself the fruit of complex compromises. there is substantial imprecision. roads and fortifications or other facilities have appeared. harbours. swept by typhoons or racked by oppressive heat. 13 See on this subject J. If it is the presence of vegetation. paragraph 3.

See van Dyke and Bennett. by fishermen from various neighbouring countries who 'lived' there without making the islets their usual abode. similarly. Independence in regard to a portion of the globe is the 15 16 See Jon M. then since ancient times some islets have been visited for several months of the year. . Let us recall that: Sovereignty in the relations between States signifies independence. Without doubt. mimeographed paper. i. the overwhelming majority of these sprinklings of land come under paragraph 3 of Article 121. China's Practice in the Law of the Sea (Oxford. p.. 1992). Bennett. Islands and the Delimitation of Ocean Space in the South China Sea. are designed to change the odds. with a certain autonomy. 13 March 1989. since it is well known that such developments.15 Were both archipelagos able to do so from the beginning? No account must be taken of the presence of garrisons. If the human habitation mentioned in the Convention is seasonal. land above the water. So it is noteworthy that most authors have tended to conclude that these islands might well have a territorial sea but that they do not provide entitlement to an exclusive economic zone. widespread after the dispute has arisen.16 To make progress on the main issue . The status of some of the larger islets is debatable. op. 164. Jeanette Greenfield. continuously maintained titles. in the dry season. cit. p. nor of any population maintained there by means of costly infrastructure and facilities. The legal nature of the dispute Several States have irreconcilable positions regarding these archipelagos. Clarendon Press.e. 41. must be capable of supporting naturally a relatively stable community of people. however insubstantial. maintained only with military support.the validity of the titles claimed the exact nature of the dispute must be identified. or than others.Background Information 25 To sum up. van Dyke and Dale L. has ever been possible for these lands. particularly Woody Island in the Paracels. However no economic life of their own. It is therefore necessary to go back to the state of the islands as described by navigators or visitors before the conflict caused transformations. on the grounds of ancient. which demands recognition? Vietnam asserts that it has territorial State sovereignty over both archipelagos. What then is the legal foundation of the claims of the various governments? Does any one of them have a better title than another.

18 Matters are different in the Spratlys. . Is this a dispute relating to the acquisition of sovereignty over terra nutlius? Or. 838. to the exclusion of any other State.26 Chapter I right to exercise therein. of 17 18 19 Max Huber. Reports of International Arbitral Awards. and its control over the main islands of the archipelago. and that their title has always been maintained and was never lost.17 China counters the Vietnamese claim to the Paracels with a claim of its own. more recently by Malaysian and Chinese (1988) ones. at pp. become a valid. the functions of a State. International Court of Justice. The assertion of sovereignty by the Vietnamese Government (subsequent to the affirmation of French sovereignty). in 1956 for part of the archipelago and in 1974 for the rest. Minquiers and Ecrehos case. These factual data prompt us (and even make it imperative) to examine the nature of the dispute. and has not been for a long time. the Chinese claim being accompanied by the military occupation of several islets after violent incidents. Contemporary international law (Charter of the United Nations. Island of Palmas. II. So a military occupation denounced as such cannot ever. since there are certain similarities between the situation studied here and the Minquiers and Ecrehos case. Reports. paragraph 4) prohibits the use of force against the territorial integrity of a State. It has backed its claim by a military occupation which ousted the previous Vietnamese presence. vol. Arbitral Award. were countered by Filipino and Taiwanese claims and occupations. 'La declaration des Nations Unies sur le renforcement de 1'efficacite du principe de non-recours a la force' (1987) Annuaire Francais de droit international. The present case does not therefore present the characteristics of a dispute concerning the acquisition of sovereignty over terra nullius. Article 2.' 19 These words may be transposed to the case of the archipelagos in the South China Sea. recognized title. 4 April 1928. 379 et seq. 1953. Both parties contend that they have respectively an ancient or original title to the Ecrehos and the Minquiers. is it a territorial dispute between two States which both claim title to sovereignty? The first possibility must be disregarded. See Tullio Treves. at p. Two possibilities must be considered in turn. at p. It is no longer a question. in any way. 53.

Apart from the fact that it is an isolated case. Rather the dispute will be settled only by resolving a territorial dispute between several States. in the event of conflict.20 In the Island of Palmas case. The argument of geographical contiguity This argument must be jettisoned from the outset. Although States have in certain circumstances maintained that islands relatively close to their shores belonged to them in virtue of their geographical situation. to rule in favour of the State whose territory lies closest to the disputed islands. the arbiter remarks that this island 'is adjacent to the mainland and so near to it that animals cross at tow water'. Here contiguity occurs in such special conditions as to be unique. In the history of claims of sovereignty over island territories. it has never been recognized as constituting a rule of international law making it possible. Judge Max Huber considered this argument at length. However. Not only would it seem that there are no precedents sufficiently frequent and sufficiently precise in their bearing to establish 20 The case of the Island of Bulama on the coast of West Africa (Ulysses Grant Arbitration of 21 April 1878) cannot serve as a precedent. His reasoning deserves to be quoted in extenso: In the last place there remains to be considered title arising out of contiguity. . which occupy or have occupied the same lands over very different time scales and on the basis of very different titles. the question which then arises is: what law will be applicable? The norms of international law applicable to a settlement of the dispute What legal approach can be adopted which might permit a conclusion as to the merits of one claim against another? The concept of one single argument will have to be abandoned in favour of a method which takes account of the rhythms of time in relations with the law.Background Information 27 attributing sovereignty over terra nullius to a State which seeks to acquire title. the argument based on geographical proximity has been used many times by one State or another (the Argentine claim to the Falkland Islands for instance). it is impossible to show the existence of a rule of positive international law to the effect that islands situated outside territorial waters should belong to a State from the mere fact that its territory forms the terra firma (nearest continent or island of considerable size). The dispute having been characterized.

Droit international public positif'(Paris. 4 April 1928. The principle of contiguity. 1972. The question whether these archipelagos are situated in the exclusive economic zone of one or other riparian State of this sea is neither here nor there.21 Although dating back to the period prior to World War II.. They mean that one argument devoid of legal value can be eliminated from the field of consideration. in the words of Louis Cavare. at pp. p. this principle would be in conflict with what has been said as to territorial sovereignty and as to the necessary relation between the right to exclude other States from a region and the duty to display therein the activities of a State. 1962). . may not be out of place when it is a question of allotting them to one State rather than another. at p. it is not the fact that an island is situated within 21 22 23 Max Huber. In international law. these comments are still just as pertinent today.' 22 Hence.28 Chapter I such a rule of international law. op. but the alleged principle itself is by its very nature so uncertain and contested that even Governments of the same State have on different occasions maintained contradictory opinions as to its soundness. Nor is this principle of contiguity admissible as a legal method of deciding questions of territorial sovereignty. 'It is impossible to accept that proximity can serve as basis for the creation of a genuine right. the fact that. the closest point in these islands to Vietnam lies some 170 nautical miles from Da Nang and 156 nautical miles from the coast of Hainan. and one can but conclude. in regard to islands. have no bearing on the legal substance. where the Paracels are concerned. Revue generate de droit international public. cit. It is surprising to note the persistence of this argument among a handful of authors such as Charles Rousseau.23 The legal substance must be weighed up in relation to a process of acquisition of title and maintenance of title which consists of a lot more than mere geographical data. Island of Palmas. 597. either by agreement between the Parties. but as a rule establishing ipso jure the presumption of sovereignty in favour of a particular State. 835. or by a decision not necessarily based on law. for it is wholly lacking in precision and would in its application lead to arbitrary results. Pedone. 854-855. Louis Cavare. Arbitral Award. while that archipelago lies some 522 nautical miles from Hainan. or that the distance separating the closest point in the Spratlys from the coast of Vietnam (Cam Ranh) is 250 nautical miles.

in this respect the Spratlys are in a very different geographical position. under the terms of the 1982 Convention on the Law of the Sea. The first period is the one when. leads. On the other hand. under certain conditions examined above. of an exclusive economic zone. However. can claim rights up to 200 nautical miles. The legal system has evolved over centuries of history woven between human societies and territories.Background Information 29 the exclusive economic zone which has any bearing on whether the island belongs to one State or another. some of the islands in this vast archipelago are closer to Malaysia or the Philippines. and noting only the major turning points (which appear as such to us but in reality were slow to emerge). sovereignty over the archipelagos is not governed by the maritime delimitation. in which case the title recognized will affect the actual data of the delimitation themselves. territorial discovery served as acquisition of title. On the contrary. Confirming the Latin dictum ubi societas. presided over the acquisition of a title of sovereignty were gradually transformed. it is the title of sovereignty to an island which. since they lie outside the zones that either State (China or Vietnam) can claim as continental shelf or exclusive economic zone. and in this respect. By virtue of their land mass. as the case may be. preliminary question. it is a separate. which would include the Paracels in an area controlled by one or other of the two States. to the attribution to this island of a territorial sea and. when it has been determined. three stages can be identified. ibi jus. Yet this period was also . the Paracels lie in an area where the potential rights of the two States overlap. the law adapted to the evolution of societies and to the values which they developed. provided it was accompanied by an affirmation of sovereignty. both China and Vietnam. at a given period. Intertemporal law consists in comparing the particulars of the legal system at the different periods of its development with the specific facts of the situation which constitute the basis of the dispute. whose outcome has a bearing on the delimitation. It is the delimitation between them which will determine their maritime boundary. However. The machinery of intertemporal law How in international law are the titles of acquisition to an uninhabited territory constituted? How are these titles maintained? The answer to these questions is provided by a subtle legal argument denoted by the name intertemporal law. The rules which. If one goes back to the period of the great discoveries. for islands which were said to be terra nullius.

The effects of an act produced as giving access to the title (cession. From that time onwards. Mohammed Bedjaoui. . A dispute over sovereignty between two States was settled by the finding that one of the States concerned had greater title than the other. This first system of law only changed under the influence of inter-Power rivalry during the 19th century. The Hague.30 Chapter 1 characterized by the fact that the sovereignty of the State included the right of conquest. conquest. supported by numerous arbitral awards or legal decisions. 24 See in this connection 'Terra Nullius. the manifestations of that display might be more tenuous than in lands with more developed civilization. These were the requirement that lands allegedly acquired should actually be occupied and the requirement that other States should be notified of this effective possession. the word conquest could be omitted. 16 and 29 July 1975. as terrae nullius. international law with respect to territorial acquisition became consolidated and widely accepted.24 By this means. which had developed their own non-western systems of social organization. in particular through the magisterial award of Judge Max Huber in the Island of Palmas case. 1975. Further. and showing complete disregard for the populations. the Great Powers had treated many lands inhabited by peoples unknown to them. The relevant acts must have been performed in sovereignty and could not therefore have been performed by private individuals acting on their own behalf. Oral statements made before the International Court of Justice in the case concerning Western Sahara on 14 May and 14. And if the initial title had been obtained without the display of authority throughout the territory. being replaced by the much simpler expression of 'discovery'. However. "droits" historiques et auto-determination'. maintenance of the title could only stem from the generalization of such display. The change in the law was crystallized at the Congress of Berlin and in the precise terms of its General Act of 1885. Africa being essentially the field of application. the initial title had to be backed up by the continuous. where uninhabited. peaceful exercise of the authority of the State active in the territory. it was accepted that. A distinction was drawn between creation of the title to the territory and the maintenance of this title in continuity. However. 15. remote lands were concerned. Two new rules were admitted by the signatories. and not on the basis of the law in force at the time when the dispute arose. discovery or occupation) must be weighed up in the context of the law in force when that act was performed.

the United Nations Charter also contained another principle which lay at the root of considerable upheavals in international law. the founding States introduced a vitally important element. Not until 1960 and the dawn of the great decade of decolonization was what had hitherto been the law completely overturned. paragraph 2. but was an element which reinforced the position of the State exercising the authority. namely. The Law of the Sea and Maritime Boundary Delimitation in South-East Asia (Oxford University Press. the inclusion of this principle among those which moulded the initial aims of the United Nations was not sufficient in itself to ensure that it produced its full effect. . However. paragraph 4). 1987).Background Information 31 Lastly. 25 See. which laid the foundations of a universal. of the Charter). However. the recognition or acquiescence of third States could not serve as basis of the title itself. Concerned as they were to attain the objective of the maintenance of peace. This element constitutes a truly revolutionary change in international law with the prohibition of the use of force against the national integrity of a State (Article 2. Conquest by force entails a situation of military occupation which is always illegal and which. cannot be transformed into law. and the integrity of their national territory shall be respected. on these points. 140 el seq.25 Such was the state of the law from the close of the 19th century until the first half of the 20th century. Wars of conquest. as a source of new sovereignty over a territory. are now prohibited. Kriangsak Kittichaisaree. international legal order. failing an agreement concluded between the States concerned. even with the passage of time. A number of fundamentally important and radically innovative elements were introduced with the Charter of the United Nations. It was then that the law of peoples attained its fullest expression with the Declaration on the Granting of Independence to Colonial Countries and Peoples (United Nations General Assembly Resolution 1514 of 14 December 1960). Paragraph 4 of the Declaration is especially noteworthy in relation to the legal principles enumerated here for their usefulness in illuminating the case under consideration: All armed action or repressive measures of all kinds directed against dependent peoples shall cease in order to enable them to exercise peacefully and freely their right to complete independence. pp. the right of peoples to self-determination (Article 1.

the elaboration of law and the gradual modifications through which it passes are slow processes in which the part played by custom. the law has developed within a certain continuum. As a rule. The Manila Declaration of 15 November 1982 on the Peaceful Settlement of International Disputes crowns this edifice and defines the principles which must in all circumstances take the place of violence. had been heralded by the provisions of the League of Nations Charter and the BriandKellogg Pact. envelops the text of the dated treaty or convention (should there be one) and. Against the backdrop of this long evolution of the legal principles over three periods sufficiently distinct for them to be specifically identified. less precise and radical though those provisions may admittedly have been. the history of the two archipelagos must be examined in relation to the troubled history of Vietnam and to that . The law has been transformed step by step with the various historical epochs. and extended in 1970 by a particular resolution which has sometimes been compared to a constitutional development of the Charter. clarified. One of the major difficulties of this case is the necessity to correlate two totally different historical rhythms. have formed the corpus of positive international law. It highlights the fact that the difficult transition of a colonized people to an independent people. Even the most salient one. This is resolution 2625 of 24 October 1970. Lastly. social evolution causing each period characterized as new to engender different norms. must never involve any encroachment on its territory. whose gestation had been perceptible during the preceding period. levels out the temporal unevenness by absorbing it into a more blurred landscape. by successive stages. prohibition of the use of force. itself permeated by the slow development of attitudes. the Charter was strengthened. today Vietnam's principal rival for these lands.of China. Even if certain dates have the appearance of watersheds (1885 or 1945). . General Assembly resolution 3710 .27 This is the set of rules which. The changes have never occurred abruptly.more uniform but nevertheless not free from complications .26 This text reiterates the prohibition of the use of force as a means of settling territorial disputes and also the fact that no territorial acquisition resulting from the threat or use of force will be recognized as legal.32 Chapter I The last phrase is crucially important. which often takes place in political conditions marked by confusion and disorder. as it were. 26 27 Known as Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations .

Background Information 33 It is against this background that the principal fault lines in the history of Vietnam should be seen. Certain episodes in the history of China must also be taken into consideration. what was the value of the sometimes quite contradictory acts or declarations by one party or another? In the long. what was the impact on his actions on the alleged vassalage with respect to China? When France. ignorant of a great deal of the history of the people thus colonized. From 1949 onwards. . and even for a long period. North and South. when the officials of its colonial administration were divided over what attitude to take to the archipelagos. the actual protectorate regime beginning in 1884. were riven by a war. The consequences of this state of affairs for the legal case were heavy. having conquered Vietnam with arms. it is very difficult to assemble the sort of incontrovertible documents which constitute evidence and are the material on the basis on which the law can be established. when France was slow to assert its rights as a continuation of Vietnamese rights in face of Chinese appetites. Thus. as were a number of other powers. during which this people experienced a mutually hostile dual representation. The Democratic Republic of Vietnam was created on 2 September 1945. conflict-ridden. Not counting the period of partition. despised. the Vietnamese people was 'under supervision' for long decades of its history. what was the significance of the French diplomatic and political correspondence and how was it to be evaluated? When the two parts of Vietnam. France concluded agreements whose practical consequences at the time were the creation of two Vietnamese States. resisted or endured. appeared hesitant. At the beginning of the 20th century. there were two Chinas. the Government of Kwangtung was not recognized by Peking. In July 1954. A State of Vietnam within the framework of the French Union was officially set up under the Agreements of 8 March 1949. Reunification was to come in 1975 after further hostilities. uncertain. was throwing all its weight. putting an end to the hostilities with the Democratic Republic of Vietnam. despite its fierce and legendary independence. chaotic. the mightiest power in the world. nor by third States. When the Emperor of Annam acted as sovereign at the beginning of the 19th century. dramatic history of this part of the world. a situation which persists to this day. And the rightful holder of the sovereignty (the people) found itself lumbered with spokesmen who were variously suffered. The first French protectorate over this sovereign State (even though it was tied by vassalage to China) was in 1874. themselves considerably diminished by the Japanese threat in the region. into which a foreign power.

in the realm of society. 'Only the Falkland Islands is a more complex case than that of the Paracets' 29 A chronology of the important facts is the first essential step. Other acts. yet seemingly not impossible. certain archive material is missing. Herve Couteau-Begarie. Some acts were carried out by representatives of States. . however. 229. The aim is simply to present and clarify the case. Economica. in a legal issue the chronology meets another need. therefore. 1987).28 This is not decisive to the case. are indispensable if we are to state the rules of international law under which each fact or series of facts must be assessed. Certain acts or declarations must be interpreted in the political context which was theirs. CHRONOLOGY Identifying the succession of events over the course of time is always necessary when there are many facts. jurists must strive to build up objectivity. Admittedly. They may have some value in the legal argument. and to determine which took place first. Geostrategie du Pacifique (Paris. accurate dating.34 Chapter I It is particularly hard for the claimants to the title to demonstrate the complete continuity of the national will in the display of the maintenance of the law. Yet through their rigour. However. The established pre-existence of a fact may indeed have decisive legal effects. that of dating a certain number of events in order to situate them in relation to each other. some of them old. The first task in trying to overcome these difficulties is to identify with care the authors of the acts. as well as the order of events over time. although never having the same authority as acts of the State. There are still many difficulties in establishing a chronology. which is inevitable whatever the system of law applied. At this juncture. but in complex cases of division. There is thus room for a degree of subjectivity. were carried out by private individuals or population groups. 28 29 This needs to be viewed in the light of the awkward problem of the succession of archives in the case of States issuing from decolonization. it is necessary to identify the State concerned with great accuracy. p. Lastly. let us turn to our analysis of a case of which it has been said. It is difficult. superimposition and rivalry between the powers of States.

Background Information

35

Lastly, certain instances of conduct on the part of third States can and must be taken into consideration and consequently included in the chronology. Our chronology will be constructed around two major events which concerned not only the protagonists but all the States in the area: the arrival of a colonial power and World War II. Before colonization During this period a distinction can be made between discovery not followed by the taking of possession or by occupation, and actual occupation. Awareness of the existence of the archipelagos, as revealed by numerous references to them in historical works, certainly dates back to ancient times. However, awareness of their existence, as a result of their discovery by various navigators, was something mentioned in accounts of journeys, or came from the study of maps, and prior to the 18th century it was not accompanied by any measure having legal ramifications.30 Fishermen from various neighbouring countries visited the islands over the centuries. Navigators from more distant climes (Indians, Persians, Arabs, Portuguese, Spaniards, Dutchmen) knew of them and spoke of them long ago. Among them were some French navigators who set sail for the Far East from the port of La Rochelle on 7 March 1568, with Jesuit scholars on board. They were to reach the Paracels.31 The islands became notorious in maritime history with the wreck of the Amphitrite, sailing from France to China in the reign of Louis XIV (1698).32 Old Chinese texts dating back to various periods before the 18th century mention the existence of the islands, of which Chinese navigators had long been aware. However, until the 18th century, no major events having effects on the status of the islands occurred. Under the Nguyen dynasty, the rulers of Annam in the early 18th century, a company was formed to exploit and protect the islands. In 1816, Emperor Gia Long solemnly confirmed the sovereignty of the Emperors of Annam over the archipelagos.
30

31

32

The legal discussion of the titles of discovery advanced by the various parties will be presented, document by document, in the following chapter. Le Thanh Khe, L'affaire des iles Paracels et Spratleys devant le droit international, Institut International d'Etudes et de Recherches Diplomatiques, 1958. Claudius Madrolle, 'La question de Hainan et des Paracels' (1939) Revue Politique Etrangere.

36

Chapter I

The Minh Mang dynasty which succeeded Emperor Gia Long pursued his work. - 1833-1834 The order was given to erect a monument and to make a map. - 1835—1836 - Various works on the islands were taken forward under the administration of the Emperor. - 1847-1848 - The administration of the islands was maintained, its purpose being geographical, for better reconnaissance of maritime routes, as well as fiscal, to levy taxes on the fishermen of the region. The period of French colonization up to the end of World War II French domination began with a first Treaty of Protectorate signed in Saigon on 15 March 1874. This was confirmed by a protectorate definitively established under the Treaty of Hue (called the Patenotre Treaty) of 6 June 1884, which gave France substantial powers in a large number of fields. The French controlled Tonkin and Annam. All the points in the territory of the Empire were accessible to the French troops. On 17 October 1887 the Indochinese Union was created, transformed under Governor General Paul Doumer into a true colonial administration. In essence, imperial power then passed into the hands of the Chief Resident. The facts relating to either or both of the archipelagos during this period were as follows: - 1881-1884 - The Germans proceeded systematically to map the waters of the Paracels (as they were doing throughout the South China Sea) without making any claim to sovereignty. - 1887 - On 26 June, France and China concluded a Convention delimiting the frontier between Tonkin and China. Inter alia, the text states: In Kwangtung, it is agreed that the disputed points which lie east and north-east of Monkai, beyond the frontier as determined by the Delimitation Commission, are allocated to China. The islands which are east of the Paris meridian 105°43'E, i.e. east of the north-south line passing through the eastern point of the island of Tcha's Kou, or Ouan Chan (Tra Co), which forms the boundary, are also allocated to China. The island of Gotho and other islands west of this meridian belong to Annam. - 1895-1896 - Two shipwrecks in the Paracels, that of the German vessel Bellona and that of the Japanese vessel Imezi Maru, caused disputes. Both

Background Information

37

vessels were carrying copper insured with British companies. It proved impossible to save the cargo and it was abandoned where it lay. Chinese fishermen looted it and carried it away to Hainan by junk or sampan to resell it to shipbuilders. The insurance companies sought redress against those responsible, a protest being lodged by the representative of Great Britain in Peking, and by the Consul in Hoihow. The local Chinese authorities (the Governor of Liang Guang) then protested, disclaiming any responsibility on the grounds that, for them, the Paracels were abandoned islands which belonged no more to China than to Annam, that they were not administratively attached to any district of Hainan and that 'no special authority was responsible for policing them'.33 - In 1899, Governor General Paul Doumer ordered a lighthouse to be built on the Paracels. A study was carried out by the colony's technical services. The lighthouse was not built because of lack of funds.34 - In 1909, on 6 June, the Viceroy Governor of Liang Guang (the Chinese provinces of Kwangtung and Kwangsi) sent two small gunboats under Admiral Li Zhun to debark for a short time (24 hours) on some islands in the Paracels. France made no protest. - In 1920 a Japanese company, Mitsui-Bussan Kaisha, mined phosphates on some islands, after seeking French authorization. - From 1920 onwards France exercised maritime and customs super vision over the Paracels. - 30 March 1921 - The civilian Governor of Kwangtung announced that the military Government of the south had decided administratively to incorporate the Paracels into the sub-prefecture of Yai Hien (Hainan Island). France made no protest (the Kwangtung Government being recognized neither by the central Government of China nor by the Great Powers). - From 1925 onwards a scientific study of the Paracels was carried out by a team under Dr A. Krempf, Director of the Oceanographic Service, on board the trawler de Lanessan. The same specially equipped vessel surveyed the Spratlys in July 1927. - On 8 March 1925 the Governor General of Indochina declared the Paracels and Spratlys to be French territory.

33

34

Statement reported by the Governor General of Indochina to the Minister for the Colonies, 20 March 1930, Annex 5. Same correspondence.

38

Chapter I

- 1927, the Consul General of Japan, Mr Kurosawa, asked the French authorities in Indochina for information on the territorial status of the Spratlys. - November 1928 - The New Phosphates Company of Tonkin applied to the Governor of Cochin China for a permit to prospect for mineral deposits on Spratly Island. - July 1927 - The Spratlys were officially visited by the vessel de Lanessan. - 1929 - 15 June - The Governor General of Cochin China requested the Commander of the Navy in Indochina to undertake a voyage to Spratly or Storm Island, which was administratively attached to the province of Ba Ria (Cochin China). - 1930 - 13 April - The Governor General of Indochina sent the adviceboat Malicieuse to the Spratlys. The members of the expedition raised the French flag on a hill. Communique of 23 September 1930 notifying the other Great Powers that France had occupied the Spratlys. - 1931 - A contract for the mining of guano deposits in the Paracels was awarded by China. The French Government claimed the islands in a Note handed to the Legation of China in Paris on 4 December 1931. - 1932 - 29 April - Explicit protest by the French Government, relying on Annam's historic titles and the evidence of the occupation by Annam and subsequently by France. In the same year, France proposed bringing the case before an international tribunal, and China opposed this. - 1933 - 13 April - A flotilla detached from the French naval forces of the Far East, under the command of Post Lieutenant Delattre, sailed from Saigon to Spratly Island (the advice-boat Malicieuse, the gunboat Alerte and the hydrographic vessels Astrobale and de Lanessan). Taking of possession according to the time-honoured ceremony. A written document was signed by the captains in 11 copies. Each island received its own document, encased in a bottle itself sealed into a boundary-marker permanently fixed on the ground. The French flag was raised and the clarion sounded on each island. 1933 By a decree of 26 July the French Government proclaimed the occupation of the Spratlys archipelago by the French Navy. (The islands were listed individually). Furthermore, by a decree of 21 December of the same year, the Governor of Cochin China, Mr J. Krautheimer, officially incorporated the Truong Sa archipelago into Ba Ria Province. - In 1937 - the head of public works, Mr Gauthier, went on an official mission to the Paracels, on behalf of the French colonial administration, to

Background Information

39

study the potential for maritime and air traffic facilities, and to build a lighthouse on Pattle Island. - 1938-1939 - As a follow-up to the mission, France sent detachments of the civil guards to the islands. By a decree dated 15 June 1938, the Governor General of Indochina, Jules Brevie, created an administrative delegation in the Paracels (Emperor Bao Dai having signed an order transferring the Paracels from Nam Ngai Province to Thua Thien Province). - On 5 May 1939 the same Governor General of Indochina, Jules Brevie, amended the previous decree to create two administrative delegations in the Paracels. A marker had been erected on Pattle Island (Paracels) in 1938, bearing the inscription: "French Republic - Kingdom of Annam - Paracels Archipelago 1816 - Pattle Island 1938: A lighthouse, a meteorological station and a radio station were installed on Pattle Island in the Paracels, and on Itu Aba Island in the Spratlys. - 1939 - 31 March - In a Note to the Ambassador of France, stating that Japan had been the first to explore the islands in 1917, the Japanese Govern ment (Foreign Ministry) announced that it controlled the Spratlys. Japan noted the absence of a local administrative authority, viewing this as a situation prejudicial to Japanese interests. On 4 April the same year, France lodged a protest. Among third States, it is interesting to note the position of the United Kingdom, which was defined in the course of a debate in the House of Commons on 5 April, when the representative of the Foreign Office stated that the Spratlys were 'claimed in full sovereignty by the French Government '. - 1943 - 1 December - Communique of the Anglo-American-Chinese Conference in Cairo affirming its will to strip Japan of the territories it had stolen (Manchuria, Formosa, Pescadores) and restore them to the Republic of China. - 1945 - on 9 March the Indochinese detachment on duty in the Paracels was taken prisoner by the Japanese Navy. The Japanese did not leave the Paracels until 1946, being replaced in May of that year by a French infantry platoon which landed from the Savorgnan de Brazza and stayed only a few months. Chiang Kai-shek landed troops on both archipelagos, on the pretext of disarming the Japanese, landing in the Paracels in November 1946 and on one island in the Spratlys in December 1946. - 1945 - 2 August - Potsdam Declaration.

40

Chapter I The period after World War II

- 1945 - on 15 August Japan capitulated. On 19 August the Viet Minh seized power in Hanoi. Ho Chi Minh formed a provisional government on 22 August. On 25 August Emperor Bao Dai abdicated. On 2 September Ho Chi Minh proclaimed the independence of Vietnam and the Democratic Republic of Vietnam came into being. France was determined to regain control of Indochina. - 1946 - 28 February - A Franco-Chinese agreement was signed at Chung King, enabling France to succeed China as the military presence in Tonkin. The Government of Ho Chi Minh and the representatives of France signed the Agreements of 6 March 1946. Under the Agreements, France recognized the Democratic Republic of Vietnam as a member of the French Union. - The application of the Agreements of 6 March 1946 was fraught with difficulties. From December 1946, there was conflict on all fronts. However, since France had chosen to back a 'nationalist' Vietnamese State, the creation of a second Vietnamese Government was encouraged and endorsed by the Agreements of 8 March 1949, and the Agreements of 1954 enshrined the existence of two Vietnams, bringing the war in Indochina to an end. It was followed, however, by the Vietnam war, which lasted until the reunification of the two Vietnams in 1975. - In 1947 (7 January or 13 January, depending on the source) China again landed troops on Woody Island (Paracels), taking advantage of the fact that the French authorities were not occupying the islands. The French Government lodged an official protest against this illegal occupation and sent a detachment of French and Vietnamese soldiers to establish a garrison on Pattle Island. The Chinese Government protested in its turn and negotiations opened in Paris, from 25 February to 4 July 1947. The Chinese Government rejected the French suggestion to take the matter to arbitration. On 1 December 1947, Chiang Kai-shek signed a decree giving both archipelagos Chinese names and including them in Chinese territory. - 1948, for China, was marked by events which diverted attention from the situation in the archipelagos. The advent of the People's Republic of China in 1949 considerably changed the international context of the dispute. - 1949 - April - At a speech given in Saigon, Prince Buu Loc, chef de cabinet in the Government of Emperor Bao Dai, publicly reaffirmed Vietnam's rights to the Paracels.

Background Information 41 - 1950 - In April the garrison established by Nationalist China on Woody Island was evacuated. The French detachment on Pattle Island was maintained. On 14 October the French Government officially transferred control of the archipelagos to the Government of Bao Dai. The Governor of Central Vietnam presided over the handover ceremony in the Paracels. It does not appear that there was any military presence whatsoever in the Spratlys at that time. - 1951 - The Spratlys were the subject of claims expressed at diplomatic level. President Quirino of the Philippines claimed them for his country (on 17 May) on grounds of proximity. On 24 August the New China News Agency disputed both the rights of France and the claims of the Philippines, asserting China's rights in emphatic terms. From summer 1951, the idea of a peace treaty with Japan began to take shape. This treaty was signed on 8 September 1951. Article 2, paragraph 7, of the Treaty stated that: Japan relinquishes all rights, titles and claims to the Paracels and Spratlys. Learning of the draft treaty, the Foreign Minister of the People's Republic of China, Chou en-Lai, on 15 August 1951 made public a declaration reaffirming the permanence of China's rights over the archipelagos. - 1951 - September - Opening of the San Francisco Conference. China was not represented.35 Mr Gromyko at the plenary meeting of 5 September proposed 13 amendments. The first of these envisaged the recognition by Japan of the sovereignty of the Chinese People's Republic over the Paracels and other islands further south. This amendment was rejected by 48 votes to 3. On 7 September, the Prime Minister and Minister for Foreign Affairs of the Vietnamese Government of Bao Dai solemnly declared that the two archipelagos fell within Vietnamese territory. This declaration elicited no comment from any delegate. There was thus no precise attribution of the islands by agreement at the end of this Conference. - 1952 - Debate in the Assembly of the French Union, asked to express its opinion on the Peace Treaty with Japan. A number of statements were made, some of them contradictory:

35

Mr Gorse, speaking in the Assembly of the French Union on 25 March 1952, referred to the absence of China, of both Chinas, at this Conference as regrettable (Official Gazette of the Assembly of the French Union, 25 March 1952, p. 367).

42

Chapter I

- Mr Nguyen Khac Su, Rapporteur of the Foreign Relations Committee, remarked that Japan relinquished all rights to the archipelagos but that there was no mention whatever in the text of their future destination. He added: ...these islands have long formed part of the territory of Vietnam. We venture to hope that, in the future negotiations which cannot come too soon, their legal restitution will be effected in a spirit of friendly understanding. In the same debate, Mr Gorse said that although the Treaty excluded Japan from these territories, it did not settle the problem of definitive devolution and Mr Buu Kinh recalled Vietnam's rights, after Maurice Schumann, Secretary of State in the Ministry of Foreign Affairs had stated: It is quite true that the Spratlys and Paracels form part of the dominion of the French Union. There was a marked contradiction between these comments and those made the following day, i.e. 26 March 1952, by Maurice Faure, Rapporteur for the act of ratification of the Treaty. He considered that the islands had become terrae derelictae. - In October 1955, the International Civil Aviation Organization held a conference in Manila. By resolution 24, the Taiwanese authorities were requested to step up their meteorological observation work in the Nansha Islands (Spratlys). No objections or reservations were forthcoming (according to Chinese sources). - 1956 - April - The French Expeditionary Force withdrew from Indochina. The South Vietnamese administration sent in armed troops to relieve the French garrison on Pattle Island (Paracels). However, the Chinese People's Republic landed troops which, with the utmost discretion, occupied the eastern part of the Paracels (Amphitrites). From 1956 onwards, the eastern Paracels were thus under military occupation by the People's Republic of China and the western Paracels by the troops of the South Vietnamese administration, which arranged hydrologic studies there and authorized the mining of phosphates. The same year, Tomas Cloma, a national of the Philippines, landed on some of the Spratly Islands on 15 March. In a private capacity, he and a few companions took possession of certain islands which he baptized 'Freedomland', claiming the right of discovery and occupation. He informed the Ministry of Foreign Affairs of the Philippines of this on 15 May. At a press conference held in Manila on 19 May, the Ministry reiterated the argument of proximity with a view to promoting the idea of the rights of

The declaration specified that this stipulation applied to the archipelagos. On 31 May. erected a monument and hoisted the flag. On 22 October 1956 . . the representative of the Philippines declared that. stated: The Government of the Democratic Republic of Vietnam recognizes and endorses the declaration made on 4 September 1958 by the Government of the Chinese People's Republic on the decision taken regarding China's territorial sea. On 4 September 1958. the Government of the People's Republic of China published a declaration announcing that the breadth of the territorial sea was 12 nautical miles. the Minister for Foreign Affairs of the administration of South Vietnam. Vu Van Man. the Prime Minister of the Vietnamese Government. reaffirmed the rights of Vietnam over the two archipelagos.A Vietnamese decree incorporating the Paracels into Phuoc Tuy Province was published. the Beijing Government issued a press communique stating that no infringement of the Republic of China's rights over the Spratlys would be tolerated. And a garrison of the Republic of China was then dispatched to Itu Aba. The Government of the Democratic Republic of Vietnam respects that decision. on 1 June 1956. Thomas Cloma having asked the Government of the Philippines to grant the status of protectorate to the administration he had set up. However. However. organ of the Central Committee of the Vietnamese Workers' Party. where it has been maintained since that date. This information was disseminated on 6 September 1958 by the daily Nhan Dan.1958 . The following day. the armed forces of Saigon's Navy landed on the main island of the Spratlys. the Taiwanese ambassador in Manila asserted the rights of China dating back to the 15th century. on behalf of Nationalist China. It was not challenged. the Taiwanese Navy moved in against Tomas Cloma. In October the same year. numerous Chinese fishermen tried in vain to settle in the western Paracels. On 14 September the same year. .In February.Background Information 43 the Philippines to the Spratlys. France reminded the Government of the Philippines of the rights it had acquired since 1933. apart from the seven islands bearing the international denomination of the Spratlys. all other parts of the archipelago were res nullius. in a Note to the Chinese premier. However. On 22 August.

the New China News Agency condemned the occupation of certain of the Spratlys by the Philippines and reasserted the Chinese claims to the archipelago. present in Manila.1973 . the People's Republic of China landed troops on the western Paracels (Crescent group).1965 . . and during the following days backed up its action with a strong naval presence.13 May . On 11 January 1974. Beijing said it saw this as an encroachment on Chinese territory and reaffirmed its claims to the two archipelagos.44 Chapter 1 . as well as part of Chinese territorial waters adjacent to the Xisha Islands belonging to the Chinese People's Republic. hitherto occupied by Vietnam. despite the fact that Filipino soldiers had taken up position on certain islands. On 15 January. but did not voice any claim to the archipelago by the Philippines. modified the administrative attachment of the Spratlys (from now on to be part of Phuoc Tuy Province). Mr Tran Van Lam.The Vietnamese daily Nhan Dan. . 11 July 1971 . On 18 January. a US military plane penetrated Chinese air space.In response to the delimitation by the United States Government of the "combat zone" for United States armed personnel in Vietnam. the Government of the Democratic Republic of Vietnam declared: United States President Lyndon Johnson has designated all Vietnam and adjacent waters extending to a distance of 100 nautical miles from the Vietnamese coast.9 May . The same day.1969 . above Yong Xing and Dong dao. On 19 and 20 January. the People's Republic of China shelled the islands and landed its troops on them after violent clashes with Vietnamese forces. in the Chinese Province of Guang dong (Chinese source). A press communique of 13 July indicated that talks were in progress between Taiwan and the Philippines concerning this archipelago. the Minister for the Interior of the South Vietnamese administration. two of the Xisha Islands.Despite the Paris International Conference of March 1973. published the following information: On 10 May. on 6 September 1973.The President of the Philippines revealed that Nationalist Chinese forces had occupied and fortified Itu Aba in the Spratlys. . as a 'combat zone' for United States armed personnel in Vietnam (Chinese source). recalled the Vietnamese claim and the titles on which it was based. On 16 July the same year. Saigon's Minister for Foreign Affairs. the Ambassador of Taiwan in Saigon reaffirmed Nationalist China's claim by a diplomatic memorandum.

. It called for a special session of the Security Council. . it was stated that the islands and archipelagos forming part of Vietnamese territory and lying beyond the territorial sea had their own maritime territory. .1977 On 12 May. considering the complex nature of the problem. it needed to be examined on the basis of the principles of equality.1979 . By diplomatic Note addressed to all the signatory States of the Paris Agreements of 2 March 1973.2 July.1978 . mutual respect.The Vietnamese People's Navy seized back control of the Spratlys from the Saigonese troops. the administration of South Vietnam recalled that a guarantee of the territorial integrity of Vietnam had been given.In June. Deng Xiaoping. friendship and good neighbourliness and settled by negotiation. The delegate of South Vietnam made a statement to the United Nations Conference on the Law of the Sea reaffirming Vietnamese sover eignty over the archipelagos. On 10 September. the President of the Philippines said that he regarded virtually all the Spratlys as being under the sovereignty of the Philippines (with the exception of Spratly Island itself).On 2 March. on the occasion of a visit to China by a delegation from Vietnam. The Saigon administration decided to strengthen the defence of the Spratlys.1982 . announced: 'This problem will naturally form the subject of discussions in the future. Asked to intervene by the administration of South Vietnam. . In paragraph 5. the Pentagon decided not to get involved in the conflict.5 and 6 May . .By a decree issued in February.' . the Government of the Socialist Republic of Vietnam made an official pronouncement on the question of its rights in maritime matters (territorial sea. Chinese Deputy Premier. contiguous zone. . On 24 September. thus eliciting a protest from the Philippines. exclusive economic zone and continental shelf). the New China News Agency announced the development of a large harbour in the Paracels. the People's Republic of China dispatched a memorandum to the Democratic Republic of Vietnam asserting that the two archipelagos had always formed part of Chinese territory.Background Information 45 The Vietnamese observer to the United Nations called upon the Security Council to consider the matter. The Provisional Revolutionary Government of South Vietnam made public its position that. the Philippine armed forces took possession of an island in the Spratlys (Lankian Cay) in addition to the ones they had already occupied.1975 .

the Socialist Republic of Vietnam published a declaration concerning the baselines used for measuring the breadth of its territorial sea and included the archipelagos in this operation. . according to Vietnamese sources. Protest from Vietnam. an international conference was held in Bandung between the States of the region concerning the Spratly archipelago.15-18 July . Collins Reef and London Reef. In April the same year.1989 .1983 .1991 . On 9 December the same year. Malaysian troops were dispatched to the Island of Hoa Lau. there was a naval incident in the vicinity of Johnson South Reef. the Chinese Navy continued to hamper supply operations by Vietnamese ships. . On 14 March.1984 . . Both parties protested. the People's Republic of China dispatched troops to some of the islands in the Spratlys and made a military show of strength. In June the same year.23 February . thus conferring a more solid administrative basis on this claim to the islands. proposed the joint exploration of the area around the Spratlys. The Vietnamese Government issued a protest. After these incidents. since that date things have remained as they were. The final press communique advocated dialogue and negotiation.1988 . However.February .1990 . The Chinese warships used heavy artillery.The Chinese Prime Minister. 74 Vietnamese sailors were listed missing. A number of Vietnamese vessels were damaged. .46 Chapter I On 12 November.For the first time.Malaysia raised the issue of its sovereignty over three of the islands in the Spratlys. modifications were made to the administrative attachment of the archipelagos to Vietnam.The Chinese Parliament decided to create a special administrative zone including the island of Hainan and the two archipelagos.August . where they embarked on major building work.China occupied a further island. And the Chinese vessels prevented Vietnamese rescue ships bearing the insignia of the Red Cross from carrying out salvage operations. the Government of the Philippines had a mayor elected as head of the municipality set up on those of the Spratly Islands which it controlled (administrative centre .May .At the initiative of Indonesia. .Thitu). Li Peng. . In August 1989. Vietnam embarked on the construction of an economic and scientific complex in the Spratlys. On 25 March. .2 June . the Vietnamese Ministry of Foreign Affairs disputed the fact that Malaysia had any rights over these islands and islets.

. The Chinese vessel apparently refused. . China reiterated its proposal to set aside the territorial dispute and to harness the resources by means of joint exploration. a legal analysis of the different claims will need to be made.1994 . the press (Far Eastern Economic Review of 13 October) reported a naval incident involving a confrontation between a Chinese vessel carrying out seismic research for Crestone and Vietnamese vessels ordering it to quit an area considered by them to be under Vietnamese jurisdiction.9 February . an area which the Hanoi Government claimed as its exclusive economic zone. 36 See map.1995 . . Annex 6.1992 .36 In the case of both archipelagos therefore. Five States currently share the effective occupation of the Spratlys. China being the only occupant of the Paracels since the military incidents in 1974.On several occasions.25 February .The Philippines protested against the People's Republic of China for having occupied a small island in the Spratlys (Panganaban) claimed by the Manila Government and for having embarked on the construction of a shelter for boats. China granted the American Company Crestone Energy a concession for petroleum exploration in the South China Sea in a sector lying 300 kilometres from the coast of Vietnam.Background Information 47 . On 23 June 1994. On 8 July the same year.The People's Republic of China adopted a new law with a very extensive definition of its territorial waters and including the archipelagos in them as Chinese territories. In May. China seized possession of a number of additional reefs in the Spratlys. In April 1994. the Vietnamese National Assembly authorized the Government in Hanoi to ratify the United Nations Convention on the Law of the Sea.

2 In Sections II and III. the Paracels and the Spratlys will be considered separately. an original title was created. 15.1 For this period. cit. Punctuated here and there by a number of arbitral awards or theoretical works. it will be possible to establish whether. down the centuries. 839. at p. in respect of one or other of the protagonists. By comparing the claims of the different parties. and in the light of this norm which will first be analysed and clarified (I). whether one of the States possesses 'a title superior to that which (he other State might possibly bring forward against it'. op. a State could. in a customary fashion. above all since the era which saw the development of navigation and the great discoveries. it did not undergo 1 2 See Chapter 1. the question of how there was first knowledge of the archipelagos without that knowledge entailing a discovery with legal effects needs to be examined (II). in other words. by virtue of discovery accompanied by the assertion of sovereignty.. 4 April 1928. p.Chapter II Acquisition of the Original Title The rules of intertemporal law outlined in Chapter I suggest that the major periods of international law (and the norms which in each of them governed the acquisition of territory) need to be correlated with the events relating to the archipelagos during each of these periods. It has been observed that. until the latter half of the 19th century. THE NORMS OF INTERNATIONAL LAW REGARDING THE ACQUISITION OF TERRITORIES UNTIL THE LATTER HALF OF THE 19TH CENTURY The corpus of rules examined here is what has gradually emerged. the related evidence and the antecedence of some with respect to others will then be considered (III). Island Of Palmas Award. Max Huber. . acquire sovereignty over an inhabited land. The actual acts of sovereignty effected by the various States.

Whether they are truly universal. or was originally. ICJ Reports 1933. . There are elements which are physical. leaving the matter of the possibility of a change in the holder of the sovereignty for the following chapter..3 Hence. 45 {territory disputed between Denmark and Norway). a territory and a population. or rather was during the long period referred to here. in other words. for uninhabited territories hitherto ownerless: . The case of the Paracel and Spratly archipelagos is. it was specifically a matter of terra nullius owing to the genuine absence of a settled population (as the comings and goings of a seasonal population did not warrant the status of inhabited land).. The general principle of these rules is. In the context of international law of western origin. Advisory Opinion regarding Eastern Greenland. will also need to be examined. what the rules in force were during the periods concerned in other parts of the world. involves two elements each of which must be shown to exist: the intention and will to act as sovereign. material (corpus). a matter of the establishment of a new sovereignty. in other words. It is this point which needs to be examined here. that. acquisition of territories means either the assertion of a new sovereignty where there was none hitherto or a sovereignty modified by a change in the holder of it. the local population was ignored and the territory reduced by a fiction to the status of res nullius. and some actual exercise or display of such authority. In the colonial conquests (the particular case of the protectorate apart).50 Chapter II any significant change until the 1884 Congress of Berlin. It is the rules relating to this case (or to this series of cases) that need to be clearly identified. These are inadequate without an element of intent (animus). It is a well-known fact that (sovereign) State power usually derives from a triangular relationship between a government. The rules which are reviewed here are now held to be general ones based on a very European concept of international relations. p.a claim to sovereignty based not upon some particular act or title such as a treaty of cession but merely upon continued display of authority. this artifice enabling the western powers to act as though affirming a new sovereignty. But in other cases. 3 Permanent Court of International Justice. two sorts of elements must be shown to exist for the acquisition of sovereignty to be accepted under international law. the clearly expressed will to act as sovereign.

See also Beatrice Orent and Patricia Reinsch. 'Sovereignty over Islands in the Pacific'. 49. 'the intention to appropriate the territory discovered must be accompanied by actual possession.6 Two groups of alternate elements may be identified here: a factual element: discovery. Paris. followed. Award of 30 June 1865 between the Netherlands and Venezuela.4 This was the doctrine expressed in the middle of the last century and confirmed by arbitral case-law and diplomatic practice. reinforcement of the factual element. then the element of intent. 417-418. Award of 21 April 1870 between Great Britain and Portugal. Historical Note. pp. Politis. in the 17th century. A. II. provided an inchoate title which actual possession of the island in the 19th century had completed.5 There is no shortage of varied expressions of the same view. refined this requirement. 1941. at pp. as it is enough to enable its possessor to supplement it by actual occupation. vol. 1851. to make it complete and definitive. but not indefinitely. . Recueil des Arbitrages Intemationaux. in other words. lastly. the country must be completely under the control of the party concerned and it must have undertaken works which constitute settlement'. the indispensable public affirmation of sovereignty and. American Journal of International Law. on which occasions the arbiters. p. To improve the title. 443 et seq. or the scholarly opinion through the medium of the commentaries on the decisions. Case concerning the Island of Bulama. by a public affirmation of sovereignty. It may be summarized as follows: discovery in the 15 th century. that cannot be a substitute for it.Acquisition of the Original Title 51 The 19th century is strewn with major arbitral awards. Aves Islands case. de la Pradelle and N. the concrete facts fall into two categories. Des moyens d 'acquerir le domaine international. 4 5 6 Eugene Ortolan. during the time necessary for its development through occupation. The material element As the above quotations show. Discovery accompanied by a public affirmation of sovereignty creates no more than an inchoate title capable of removing third States from the territory to which it applies.

of intentionality. . It should not be overlooked that only from 1884-85 onwards has there been a specific requirement of actual occupation (Article 35 of the Berlin Act). uninterrupted and permanent. We will revert below to the issue of how confusion often arises (sometimes with ill intent) between knowledge of a territory and its 'discovery'. 7 Paul Fauchille. long before the Berlin Act. it is nevertheless true that the first stage in the discovery must subsequently be reinforced. 'Le conflit de limites entre le Bresil et la Grande-Bretagne' (1905) Revue generale de droit international public. For to require of the acquisition of sovereignty by occupation an active taking of possession. However. The latter can only derive from facts of a certain nature issuing from specific authorities. 135.7 However. A territory. the declarations of that Conference cannot have retroactive effect. Matters are often more prosaic. which falls in the domain. is to apply to acts dating from the 18th century and the early 19th century a principle of law not proclaimed until 1885 by the Berlin Conference.. Paris. and especially an island or an archipelago. it was accepted and required that occupation should materially amount to more than symbolic acts. 'Mere discovery has never constituted sufficient basis for a claim to terra nullius'. at p. It relates to a whole mythology surrounding terra incognita. that this requirement cannot have retroactive effect and that to consider it as so having would be to make an error of law. (discussed in the following paragraph) is met. The notion of taking possession The law of the period under consideration here must not be confused with the law in force since the Berlin Congress.. yet at the same time never have formed the object of any 'discovery' producing legal effects. to geographers keen to extend their work to include all territories regardless of who owns them.52 Chapter II Mere knowledge of the territory Little can be said about man's first encounter with an unknown territory. supposing this condition. can easily have been known from time immemorial to navigators frequenting those parts.

43. pp. such as the granting of a lease. and that territories without a master had become relatively few. took account of a tendency already existing and especially developed since the middle of the 18th century. 117. Island of Palmas. that the degree of effectiveness of the occupation required during this period had none of the rigour or scope required of occupations under the Berlin regime: Territorial sovereignty could be acquired in the past in conditions which would not suffice today. (.. PUF. that in all ages it has been necessary to adapt the requirement of effectiveness (regardless of the legal degree of it required) to the circumstances of the place and the topography of the territory. .11 8 9 10 11 Beatrice Orent and Patricia Reinsch. Arbitral Award.Acquisition of the Original Title 53 The symbolic ceremonies were generally supplemented by some exercise of administrative authority. pp. cit. Droit international public (Paris. it will be noted: First. 443 et seq. and some actual exercise or display of such authority. that is. 'very little in the way of actual exercise of sovereign rights might be sufficient in the absence of a competing claim'. must be effective.9 However.. to constitute a claim to territorial sovereignty. 845-846.. in the case of claims to sovereignty over areas in thinly populated or unsettled countries.10 Second. Advisory Opinion concerning Western Sahara. offer certain guarantees to other States and their nationals. Max Huber. 'Sovereignty over Islands in the Pacific' (1941) American Journal of International Law. the Permanent Court recognized that. A claim to sovereignty based upon continued display of authority involves two elements. p. International Court of Justice. International law in the 19th century.8 It was a matter of the legal relations between States. each of which must be shown to exist: the intention and will to act as sovereign. having regard to the fact that most parts of the globe were under the sovereignty of States members of the community of nations. or by lodgement of private citizens. Paul Reuter. op. and laid down the principle that occupation. p. ICJ Reports 1975.) True.).. 1968 Ed.. .

Such acts could lead to the acquisition of rights which could be invoked against third States only if there was an intention (animus) to act as sovereign. The debate is of long standing. 5037 (original Spanish). cannot found the right of sovereignty. a Dutch possession. Venezuela). this practice. 1953. the fact that the Jersey courts had exercised criminal jurisdiction in respect of the Ecrehos. 65. that fishermen living on and fishing from the Ecrehos had been entered in the register of fishing boats for the port of Jersey. It was pursued by the parties in the Aves Island case (Netherlands v. and that contracts of sale relating to real property on the islets of the Ecrehos had been concluded in Jersey and registered in the public register of deeds of that island. among other things. In that case the International Court of Justice considered. that Jersey had levied local taxes on habitable houses or huts built by the inhabitants of Jersey on the Ecrehos. at p. . 12 13 Moore 5.13 Together these facts proved the United Kingdom's assertion of sovereignty. For this reason acts by private individuals which were not immediately followed up by the public authorities are disregarded.54 Chapter II The element of intention Thus (in the system of intertemporal law we must apply here) mere discovery must be followed by acts of occupation meeting the requirement of qualified effectiveness described above. but the consequence of the abandonment of fishing by the inhabitants of neighbouring countries or by the island's legitimate owner. fish for turtles and collect eggs on Aves Island. 12 Intention derives either from the actual nature of certain facts or from the standing of the party performing the acts. The arbitrator concluded: Having regard to the established fact that the inhabitants of Saint-Eustache. precarious occupation of the island and being not the exercise of an exclusive right. implying as it does merely temporary. See International Court of Justice. This question lay at the heart of the Minquiers and Ecrehos case between France and the United Kingdom. Reports.

1858. since she never had the animus of abandoning the island. CNRS). at p. A territory is abandoned by its sovereign (and cannot therefore be claimed by another sovereign) only if both elements which together establish sovereignty are lacking. the fact of not having actually occupied the island did not prove anything. Arbitral Award by King Victor Emmanuel III (1932) American Journal of International Law. the titleholder further had to renounce the animus possidendi. Clipperton Island. Gerard Cohen-Jonathan. Aves Island case.15 The rule is of long standing and is still in force.14 Thus what the Court required was acts that could be considered to be displays of exclusive State authority over the territory concerned. 30 March 1865. 'Les iles Falkland (Malouines)' (1972) Annuaire Francois de Droit International (Paris. 394. There is no reason to suppose that France subsequently lost her right by derelictio. This was a key element of the legal system which prevailed until the late 19th century. at p. in psychological terms. p. as distinct from actual facts. is not lost by reason of their absence. It follows from these premises that Clipperton Island was legitimately acquired by France on November 17. 238. 5027 (original Spanish). and the fact that she has not exercised her authority there in a positive manner does not imply the forfeiture of a acquisition already definitively perfected.16 Or again: Against these titles. 71.Acquisition of the Original Title 55 Conversely. Lastly. the 'animus'. the intention to abandon the territory. certain facts invoked by France.17 14 15 16 17 Idem. since the abandonment of the exercise of sovereignty was not enough to establish its loss. It has been mentioned and applied in various arbitrations. In international law. Moore 5. derelictio results from two elements: in material terms. the absence of any effective administration of the territory concerned. Netherlands-Venezuela. . such as buoying outside the reefs of the group could 'hardly be considered as sufficient evidence of the intention of that Government to act as sovereign over the islets '.

THE SITUATION OF THE ARCHIPELAGOS BEFORE THE l8TH CENTURY A clear distinction must be made between the concept of geographical awareness and that of discovery. their legal effects being fundamentally different. 13 March 1989.'19 However. The archipelagos are identifiable on many maps dating from the early 18th century or later. elements which could not apply to uninhabited territories. which was characterized by mere awareness of the islands. Two elements then supplemented this norm: the taking of effective possession must be evaluated on the basis of the location: the interruption of physical manifestations of sovereignty did not in itself interrupt sovereignty if there had been no clear renunciation of it. However the names in use before the 18th century do not allow us to conclude that there was universal recognition of the sovereignty of any one State over either archipelago. They are mentioned in a host of documents (albeit with the relative lack of precision inherent in old map-making techniques). There is no doubt that since ancient times (difficult to date) the archipelagos were known to geographers and navigators from various lands. AWARENESS OR DISCOVERY. Works of geography do not therefore support the claims of one party or another in ancient times. the names are given in various languages (often 18 19 See van Dyke and Bennett. Title to sovereignty arose only from a blend of discovery followed by the taking of effective possession accompanied by the will to act as sovereign. mimeographed paper.56 Chapter II Such was the law until 1884. p. Islands and the Delimitation of Ocean Space in the South China Sea. In particular: 18th century Dutch nautical chart (GeB 220) . We shall first examine the period prior to the 18th century. from the 18th century onwards. 11. Was this set of norms equally valid throughout the world at the time (until the end of the 19th century)? It would appear that in Asia the abstract concept of the territoriality of the State was linked less to a spatial definition of legal jurisdiction and more to the loyalty of subjects and the social organization of society.18 This specificity must be taken into consideration in the analysis. These observations flow from consultation of the maps available at the French National Library. then the period which saw an assertion of sovereignty. statement at the Conference held in Bali (Indonesia) on the question of hydrocarbons in the South China Sea.

20 Fishing was always practised by both Chinese and Annamese fishermen. believed there to be a single archipelago in that part of the sea. National naval archives. China and Vietnam both appear to consider that any mention embraced all the islands in general. Examination of the documents first reveals that initially. before the 18th century. separate archipelago. Despite the fact that China and Vietnam claim to have asserted their rights since time immemorial. 1989). Annex 7. The Europeans called it the Paracels. 1732. making it impossible to use such charts to infer conclusions of a legal nature concerning title to sovereignty at the time. L'Harmattan. It must be added that. distinguishing one archipelago which kept the name Paracels as well as 'a great number of islands which are not shown on any chart old or new'.) Les frontieres du Vietnam (Paris. as things stand there are no documents in the case allowing us to state that. Owing to the climate (torrid heat in some seasons and formation of cyclones). like the first western navigators (Portuguese.278. A few Vietnamese documents are nevertheless detailed enough for a distinction between the two archipelagos to be inferred. the French Kergariou-Locmaria expedition (1787— 1788) identified the islands more accurately. B. there was no trace of permanent occupation before military logistics made the recent installation of garrisons possible.4. either State carried out any acts which might have revealed a taking of possession. 1785 (GE D 3610) Map of the China Sea. See Pierre Bernard in: Lafont (ed. 20 21 . named the Spratlys. however well the South China Sea was Map compiled in 1808 by Daniel Rops. 1821 (GeCC2301) Map of the Coasts of Siam and Part of the Coasts of China. however symbolic. 500 kilometres further south. and Nansha by the Chinese. Dutch). and the Chinese gave it several names. Ge DD 2987) Map of Amsterdam. and for a long time.21 Subsequently the charts showed the existence. Lt. The references produced by China are more vague in this respect. It is true that the inhospitable seas of the reputedly dangerous zone discouraged idle forays. or Truong Sa by the Vietnamese.Acquisition of the Original Title 57 that of the navigator or mapmaker). Spanish. 246 et seq. there was no separate mention of two archipelagos. The navigators of the region. pp. In the 18th century. Excerpt from a letter dated 28 April 1788 from Captain de Kergariou-Locmaria (frigate Calypso). compiled by Mr de la Vignein 1712 (GeC 10431). the Vietnamese called it Hoang Sa. beyond geographical awareness or private visits by a few fishermen. The explanation for the long confusion is historical. of the Bombay Marine (Ge 2301/17) Map of Neptune's Eastern Realm after Mannevilette (1745. of a vast.

They contain quite general assertions such as the following: A large quantity of historical works and documents as well as many archaeological finds prove beyond all doubt that the Xisha and Nansha Islands have been Chinese territories since antiquity.58 Chapter II known. Samuels. far less was known about the Spratlys than about the Paracels. 20 April 1988. without necessarily including them under Chinese sovereignty. arguments pointing to knowledge that Chinese navigators were said to have had of the existence of these archipelagos going back a long time are mingled with assertions relating to Chinese sovereignty. banks and reefs strewn across its centre. Contest for the South China Sea (New York. entitled: 'China's Indisputable Sovereignty over the Xisha and Nansha Islands'. pp. 23-24. inevitably. for centuries it was so notorious for the dangerous ground in the form of islets. or in publications originating with the Chinese Government. . Like all geographers in search of universal data. Methuen. (1988) Nouvetles sinologiques. No.23 In the case of more detailed statements. that navigators setting a course for Singapore or the Gulf of Thailand always hugged the Vietnamese coast. the Chinese geographers and chroniclers concentrated on meticulously describing territories. 1982).24 Geographical knowledge In certain Chinese documents. 22 The documents produced by the Chinese The Chinese arguments are expressed either in documents published by the Ministry of Foreign Affairs of the People's Republic of China. 7. though as they are works dealing with countries other than China. London. 8. 22 23 24 Marwyn S. excerpts from geographical works are quoted as support for a Chinese title to the islands. they have no value as evidence. And these islands are actually mentioned and described. The result was that. (1988) Nouvelles sinologiques. reproducing a document of the Ministry of Foreign Affairs of the People's Republic of China of 30 January 1980. such as Nouvelles sinologiques or other studies by Chinese researchers. which for Chinese sailors remained the 'gateway to Champa'. No.

10 . Haiguo wenjihian lu (Things Seen and Heard in Countries Overseas) (Qing Dynasty). op. in the southern Seas and Indian Ocean) by Mao Yuan Ji (1628). Yet the quotation produced is not precise enough to bear this out. 1349). such as Dong Xi Yang Kao. Whence the scepticism of non-Chinese authors regarding the fact that this text allegedly relates to the Paracels and the Spratlys. Dao Ji Zhi Lue (General View of the Islands) by Wang Da Yuan (Yuan Dynasty. in the Sea of Shanghai. This poetic term certainly denotes rocks or sandbanks but is too imprecisely used to enable one to identify either or both of the two archipelagos at issue today.D. coral islands are found on a flat rocky base. geographical monographs or nautical books concerning countries foreign to China. Zhu fan zhi (Notes on Foreigners) by Zhao Ju Guo (Song Dynasty. 25-220 A. cit.25 . Hat Lu (Notes on Sea Voyages) by Yang Brignam of the same period (1820). relate 'things seen and heard'. Haigue tuzhi (Notes on Foreign Countries and Navigation) by Wei Yuan (1848) and Yinghuan zhilue (Summary Geography of the Globe) by Feng Wenzhang (1848) form a collection of works consisting of travel accounts. 1405-1433. 25 See Marwyn S. p. Others. from the same period. In the September 1993 issue of the periodical Window published in Hong Kong.Nan Zhou Yi Wu Zhi (Record of Strange Things of the South) by Wan Zhen (period of the Three Kingdoms.Yi Wu Zhi by Yang Fu (Eastern Han period. written under the reign of Emperor Wudi of the Han dynasty. but are not useful to the legal argument: . it mentions that the water is quite shallow and that there are a great many 'magnetic stones'. the author explaining that he has set out to question people hailing from distant places. Samuels. a study signed Panshiying. . the Chinese themselves admit that the islands had 'a multitude of vivid and poetic names'. Some are the work of the travellers themselves or of Chinese ambassadors abroad. Moreover.) concerns 'exotic things' relating to foreign countries. a specialist researcher at the Beijing Foundation for International and Strategic Studies. with the coral growing on top.Ling Wai dai da by Zhou Chufei (Song Dynasty.Acquisition of the Original Title 59 The following works may be placed in the category of documents which merely prove a general knowledge of the area. The author claims that it contains a description of the Spratlys. . A travel account of a voyage in the South China Sea. 220-265). mentions that. Wu bei Zhi (On the Seven Voyages of Zheng He. quotes this very general text of Kang Tai dating from the first centuries of the Christian Era. Dong Xi Yang Kao (Study of the Eastern and Western Seas) by Zhang Xie (1618). 1178). 1225)..Fu Nan Zhuan by Kang Tai.

The author states: 7» 1878. Qianlishitang. they themselves sometimes agree that the word Wanlishitang denotes the four archipelagos. This is a serious confusion. Qizhouyang. at p. Les frontieres maritimes de la Chine (University thesis. Tao Cheng. Sometimes the assertion that a particular account mentioned the Spratlys cannot help but surprise the reader when the remark is illustrated in a note by a quotation mentioning the Paracels and clearly identifying them as situated at latitude 17° 10' north. but ruins the argument. islands are mentioned which are situated 100 li (50 kilometres) from Wenchang. for example. which makes any identification uncertain. 1991). 'The Dispute over the South China Sea Islands' (1975) Texas Internationa! Law Journal. Wu Jing Zong Yao (General Programme of Military Affairs 26 Jian Zhou. military patrols were organized from Kwangtung and sailed to the Paracels. under the Northern Song dynasty (10th to 12th centuries). p. such as Hai Yu by Huang Zhung. in the account of his voyage. 273. lying as they do over 200 kilometres south-east of Hainan. 330. The names of the islands vary in the most whimsical fashion: Jiurulozhou. Qizhousan. So it is difficult to follow the Chinese authors when they assert that all of these denote the Paracels or sometimes the Spratlys (however. 27 See. first ambassador of China sent to the West. . sometimes simply because he has run into them in the harbour. Wanlichengsha. which avoids any possible confusion with the Spratlys. all the islands in the South China Sea) or when they infer from them a Chinese title.' There follows a footnote 18. refer to sandbanks in the barbarian countries of the south-west. of the Ming dynasty (1536). They do not always confirm that it is indeed the Paracels which are being referred to. whereas the texts in question. Guo Songtao. which are much further from the Chinese coasts. For example. still less the Spratlys. also mentioned the Nansha Islands (Spratlys) as belonging to China. which cannot correspond geographically to the Paracels. which strongly indicates how foreign these territories are to China.27 This applies to the examples adduced by the Chinese as proof of an act of sovereignty when they state that. in Dong Xi Yang kao referred to supra.60 Chapter II sailors or explorers. Wanlizhitang. Most of these accounts refer to the islands using widely varying names.26 Uncertainty as to China's intentions The Chinese documents or the works of certain authors on this subject include a number of more precise references. Paris X. in which the quotation produced speaks of the Paracels and indicates their latitude. in other words. Sometimes there are a few details of the distance from the coast.

Acquisition of the Original Title 61 prefaced by Emperor Renzong himself) reports patrols going right to the islands. However. According to this. and his conclusions: 'Despite greatly increased contact with the seas during the fourteenth century and despite the power of the Yuan navy. the islands of the South China Sea were apparently not absorbed into the empire or colonized. the quotation used is less demonstrative when it is put back in its context. cit. the Chinese authors rely on a further event which occurred in the 13th century (1293). And some authors have speculated that the islands mentioned might rather be those of Macclesfield Bank. and provides no proof of this. ordered a renowned astronomer by the name of Guo Shoujing to take readings. himself a passionate astronomer. number 1. 18-19. does not prove anything either. the fact that some of them were made on the islands is not sufficient to furnish proof of the Chinese territoriality of these islands. However. 20). Similarly.29 28 29 An example is the view taken by Groeneveldt. Travelling by junk. So although this confirms China's knowledge of the Paracels. op. in a work published by the Ecole Francaise d'Extreme Orient (Les Portuguais sur les cotes du Vietnam et du Champa. an expedition led by Shi Bi embarked to attack Java. the fact that. camping on certain islands.S.' (p. 21. trade and contacts.. an army of around 5. 1972) does not share Groeneveldt's view and believes that Qizhou refers to the Tayas and Wanlishitang to the Paracels. On the lack of identification of islands mentioned in these accounts of episodes dating back to the 13th century. the translator of Shi Bi Zhuan (History of Shi Bi). 'International Law Rule and Historical Evidence Supporting China's Title to the South China Sea Islands' (1997) Hasting International and Comparative Law Review. the itinerary described does not allow the route. see M. Since readings were taken partly on Chinese territory and partly outside it. Pierre Yves Manguin. Jianming Shen. . allowing for stopovers. pp. 17 and 26. some of which were carried out in the Paracels. Samuels. However. and therefore the islands. a Yuan emperor. and which is related in Yuan Shi. it does not show that China took possession of them. vol. In their reasoning.28 The hesitations on this point can be better understood if they are seen in the context of the maritime history of this region of the world. to be clearly identified. Nor is the text relevant to territorial control of these spaces.000 men sailed south. all the more so in that navigation was for a long time not reliable enough to avoid shipwreck in the dangerous ground of the archipelagos. This incontrovertible fact is disregarded by some authors. for example. at pp. Paris. The preferred shipping routes hugged the coast. in the 13th century. for whom Qizhou (the Seven Islands) refers to the Paracels and Wanlishitang to Macclesfield Bank. which appears to be a geographical reconnaissance expedition to the Indian Ocean rather than patrols allegedly policing Chinese lands.

Lastly. which the patrol traversed. Writings of the 12th century.30 The Chinese claims are contradicted by other sources within China itself. recalling that a territory merely encountered en route by the King of Portugal's ships could not be regarded as having conferred on him title to that territory. a work submitted to the Emperor of the Qing in year 9 of the reign of the Wengzheng (1731).62 Chapter II The Chinese use certain archaeologists' reports to support their claim that Pattle Island once harboured a pagoda. then the 17th and 18th centuries appear to confirm this. since there was no taking of possession. von der Heydte. the Holy Roman Emperor Charles V used this distinction in his instructions to Ambassador Juan de Zuniga. 30 Friedrich A. Tong Gu is a mountain on the north-east point of the island. following the itinerary claimed on the map. at pp. The itinerary is given. which they did not actually see. Symbolic Annexation and Virtual Effectiveness in International Law' (1935) American Journal of International Law. Qizhouyang designates the Taya Islands group and Sigengsha is a sandbank to the west of Hainan. 'Discovery. not a voyage to more distant seas. led a patrol at sea. The signs required by the international law of the time are missing. With a fair degree of concordance. The map of Kwangtung Province does not mention the archipelagos.F. As far back as the 16th and 17th centuries. the Chinese documents refer to patrols at a later date. he passed by Tong Gu and traversed Qizhouyang and Sigengsha.' Qiougyo is the chief town in the north of Hainan Island (Hoihow).000 li. The text reads: 'Departing from Qiongya. . corresponded to the outer reaches of the Paracels. Vice-Admiral of the naval forces of Kwangtung. including a geographical description of the prefecture of Quiongzhou and a geographical description of Kwangtung dated 1731. but which is said to have been a Chinese remain. There are many old geographical documents describing and delimiting the territory of the Chinese Empire. 449 et seq. There is nothing here to suggest maritime control over the archipelagos. thus covering 3. together with a commentary that Qizhouyang (Sea of the Seven Islands). now destroyed. Wu Sheng himself. since it is asserted that between 1710 and 1712 under the Qing dynasty. Scientific verification of this claim is not possible. On 18 December 1523. it is impossible not to notice that it corresponds to a journey around Hainan Island. they describe Chinese lands as ending at Hainan Island in the south. However. a distinction was made between discovery during reconnaissance (discovery) and discovery with appropriation (finding).

" It is true that.51 The old tale that in 1754 some Vietnamese sailors. Le Qui Don. On the other hand. desirous to expand its trade.33 In some slightly more guarded documents the idea is put forward that. 'the Chinese presence in and control over the shipping lanes of the South China Sea lapsed into memory'. leads us to believe that there are no grounds for this claim. the arguments of the South Vietnamese Government have often been rejected without close scrutiny. the arbitrator appointed to settle the case sought in vain any right to the island which might have been formed by Spanish navigators: 31 32 33 (1988) Nouveties sinologiques. It is therefore surprising that many authors. Chinese works of the time may indeed mention the islands. 5. When Mexico. such references do not take us any further and are not enough to substantiate the claim that China was the first to discover. although they do not provide any convincing arguments supporting the assertion of a Chinese title to sovereignty. Chi Kin Lo. Miscellany on the Government of the Marches. as has been remarked elsewhere: The majority of these studies have been undertaken by overseas Chinese. from the 15th century onwards. 14. Routledge. Book 2. who were not necessarily free from bias when selecting information for examination. the Case of the South China Sea Islands (London. who had lost their course near the Paracels and drifted as far as the Chinese coast.Acquisition of the Original Title 63 Close scrutiny of the references produced by the Chinese certainly reveals an awareness. However. opposing France's claim. exploit. However it must be based on adequate factual grounds. This concept is accepted in international law. China acquired merely an 'inchoate' or incipient title. 8. China's Position towards Territorial Disputes. have often concluded that China's ancient historical title is a solid one. 1989). in various publications. were escorted home without further protest. over the course of these historical periods. develop and administer the archipelagos. . far back in time. China pursued a relatively active maritime policy until the 15th century. at p. contended in the 19th century that Clipperton Island had belonged to it before the expression of French rights. p. of the existence of many islands scattered throughout the South China Sea. However. through its various ruling dynasties. following an investigation by the Chinese authorities.

Saigon. mention was made long ago of islands and archipelagos. dated in 1711. The paucity of official Vietnamese documents springs from the fact that many were looted. disregarding the verbose assertions in many works or articles. This work. so that it is barely possible to go further back. had identified and described it is a conjecture more or less probable. The first traces of the assertion of a right appear in 1776 in Phu Bien tap luc (Miscellany on the Government of the Marches). . 1962. as in the Chinese literature. this knowledge was transformed into an actual taking of possession. a work dating from the 17th century conserved in Japan. 390. probably dating from the end of the 15th century (Emperor Le Thanh Tong). From what is available (in references at least) it is clear that. p. described the archipelagos (as lying 3 days' and 3 nights' journey away. From the 18th century onwards. 218). but from which one cannot draw any decisive argument. are reproduced in a publication of the Historical Research Institute (Hong Duc Ban Do. 34 Arbitral Award. we examine the elements put forward in support of an ancient title with respect to China. burned or destroyed in the course of past wars. by Le Qui Don. written by an encyclopaedist who held the post of Vice-Governor. Maps which mention the Paracels. at p. were there any other displays of interest in the archipelagos by other peoples? The documents produced by the Vietnamese These documents also confirm that the archipelagos were known far back in time. The arbitrator continued: The proof of an historic right of Mexico's is not supported by any manifestation of her sovereignty over the island. Clipperton Island (1932) American Journal of International Law.64 Chapter II That they [Spanish navigators] might have known it before the log-books of the French vessels La Princesse and La Decouverte.34 This is also the logical conclusion when. they are also mentioned in the Hong Duc atlas. During that first period (which we have identified as being before the 18th century). This dates satisfactorily the first legal certainties of the 18th century. which locates them quite accurately) and refers to their exploitation for economic gain.

the Company collected several measures of tortoiseshell and sea cucumber. 126 ingots of silver. from the early 18th century onwards. naval battles between the Dutch fleet and the Nguyen navy (1643-1644). on 22 January 1929. in the context of the 18th century. established after perusal of the registers kept by the rulers.36 Thus. . which a thorough examination of the archives would have allowed. In the same correspondence he provided information on the administration of the islands by former dynasties from the early years of the 19th century onwards. in the work of Le Qui Don. Can we therefore conclude that such organized exploitation was even older than the precise mention in the registers? It is impossible to maintain this contention. the first document 35 36 Le Qui Don. 'The archipelago (Paracels) seems to have remained res nullius until the beginning of the last century'.e. On the other hand. Vietnam possesses. wrote to the Governor General of Indochina. and found the following: — year Nham Ngo (1702). of the wealth yielded: I have myself examined the registers of Cai doi thuyen. Mr Le Fol. he did not know them sufficiently well to date the Annamese administration with accuracy. Chief Resident of France in Annam. the words of a man carrying out his duties in the region of Vietnam most closely concerned by the historical aspect of these issues. Sometimes it found only a few china bowls and two bronze cannons. The work contains a dated list. However. the Hoang Sa Company found 30 ingots of silver — year Giap Than (1704). the evidence of Annamese administration is well established.Acquisition of the Original Title 65 already well organized by the rulers of Annam. over a five-year period. Phu-bien tap-luc. Annex 8. were based on some knowledge of the archives. China has been unable to invoke any act of taking possession corresponding to the criteria described above. i. Miscellany on the Government of the Marches. These events confirm that the rulers of Annam had an effective navy and sought to control the seas. Between the year Ky Sun (1709) and the year Quy Ty (1713). 5-100 measures of pewter — year At Dan (1705). owing to the absence of earlier evidence. Doubtless his words.35 The same author refers to known events. stating. it may be said that: at the time the existence of the Paracels was generally known.

In the case of the Spratlys. which on the whole concur. although the distinction between the Spratlys and the Paracels (in the available documents) was ill-established. at the Institut d'Histoire Nationale for instance. It derives from a document of 1776 (Miscellany on the Government of the Marches) in which the author. . There is nothing which allows us to say that China took possession of them. THE AFFIRMATION OF SOVEREIGNTY (18TH TO 19TH CENTURIES) The preceding section drew attention to the presence of a first element. drawing on reports from the early 18th century.66 Chapter II mentioning acts corresponding to a certain administration of the archipelago.37 These works. from the 18th century onwards. The Vietnamese documents of the 18th and 19th centuries There are many of these documents. dating from the early years of the 18th century. Numerous Vietnamese maps. The administration by the Nguyen rulers of the Spratlys at the same time as the Paracels. It needs to be seen whether this indication was subsequently confirmed. whether consequently a right opposable to other States was created in the islands. may be consulted in Hanoi. There is no documentary evidence in this case of any interest in the islands at that time on the part of Indonesia. their existence was probably known. what the scope of this right was and lastly whether competing rights were expressed. relates. such as: 37 Giap Ngo Binh Nam Do of 1774 Dai Nam Nhat Thong Toan Do of 183 8 Dai Nam Nhat Thong Chi of 1882. that the rulers of Annam had founded the Hoang Sa Company sailing to the islands in the second lunar month and returning in the eighth in order to harvest the produce of the sea and gather booty from shipwrecks. is a plausible hypothesis. indicated in the document produced in 1981 by the Ministry of Foreign Affairs of Vietnam. atlases or geographical works designate the archipelagos as part of Vietnam. are supported by authoritative foreign accounts and which point towards the affirmation of a title of sovereignty. who was then carrying out the duties of mandarin as deputy governor of two provinces. Malaysia or the Philippines.

the Dai Nam administrative repertory: Kham Dinh Dai Nam Hoi Dien Su Le.. On the other hand. They make it abundantly clear that the Vietnamese emperors pursued the task of organizing (as mentioned in an account of 1776) a maritime company whose purpose was the economic exploitation and maritime exploration of the archipelagos. Owing to the rigours of the tropical climate. as well as articles from shipwrecks (Dai Nam Nhat thong chi). lead. that volunteers were exempt from personal taxes. The tours of duty lasted from the 2nd to the 8th month of . woollen cloth. How they functioned and were organized is described in detail in the above-mentioned work by Le Qui Don (1776).Acquisition of the Original Title 67 The effective administration of the archipelagos appears in various documents available in Vietnam. a sure sign of the King's handwriting. the rulers of Nguyen set up governmentsponsored maritime companies. gold. porcelain.certain reports filed in the Ho Chi Minh City archives. . . though the use of this fertilizer did not begin until the 20th century. There was a system of punishments for professional misconduct. cannons. Le Qui Don describes these articles as muskets. He says that these companies were supposed to make out itineraries or draw up maps for the rulers of Nguyen and precisely indicates that there were 70 men to a company. Dai Nam Nhat Thong Chi.. wax etc. the small islands were not suitable for farming. such service could provide entitlement to a commission or to material rewards. silver. fabric. ivory. Dai Nam Thuc Luc Tien Bien concerning the period 1600-1775 and Dai Nam Thuc Luc Chinh Bien relating to the subsequent period.the geography of unified Vietnam edited from 1865 to 1882. . Chroniclers in the 19th century report that the resources consisted of tortoiseshell. 1843-1851. swords. The most important of these are: The Authentic Writings on Dai Nam compiled between 1821 and 1844. while for others it was collecting articles or merchandise from wrecks on islands out to sea.. from fatigues and from tolls. Some of them were covered in guano. Some of these documents bear the seal of the King or comments in red ink. These measures formed part of national policy with a concern for maritime interests. Some of these companies specialized in harvesting produce from the sea on islands near the coast. pewter. sea cucumbers and turtles. Early in the 18th century. that they were recruited in the district of Binh Son. mother of pearl.

38 39 40 See Luu Van Loi's analysis of Miscellany on the Government of the Marches. in his place. This is the account by Monsignor Taberd in The Journal of the Asiatic Society of Bengal (September 1837) and that by Jean-Baptiste Chaigneau. Easily visible to navigators.39 When the Nguyen dynasty was restored. his successor. those concerned sailing in flotillas of five junks carrying six months' supplies. Emperor Gia Long made an inventory of all the lands in the kingdom. Pham Quang Anh. author of a Memoir on Cochin China in 1820. In 1833. These instructions were reiterated in 1835. they will prevent many a ship from running aground.40 Emperor Gia Long wished to travel to the islands in person in order to take possession of them and add 'this flower to his crown'. Minh Mang. . then presided over by four mandarins. What is more likely is that he dispatched an official. the Emperor appointed Pham Quang Anh commander of the brigade given the task of exploring the archipelagos and of drawing up a map of sea routes there. In 1815. perhaps because the Emperor did not travel without a retinue consisting of thousands of people.68 Chapter II the year. 1987). Counsellor to Emperor Gia Long under the Vietnamese name of Nguyen van Thang. yet this information is not confirmed. the project having been postponed owing to the violent wind and heavy seas.38 From 1771 to 1802 the history of Vietnam was marked by dynastic conflict. the King ordered the Hoang Sa Company to travel to the islands in order to make surveys. The maritime companies. (PhuBien tap-luc by Le Qui Don) (Hanoi. See Nguyen K. The work was duly carried out and orders were given by the King for those responsible to be recompensed. Editions en langue etrangere. mimeographed). The Authentic Writings on Dai Nam (Dai Nam Thuc Luc Chinh Bien) relate that. were to play an important role in compiling a register of the archipelagos.hac Vien. 1994. thus making such a journey to the islands problematic. inform him about maritime routes and draw up maps. gave the competent Ministry instructions for the erection of a temple and monument and for the planting of a great many trees: The trees will grow and provide greenery. and again in 1816. In 1816. according to certain accounts. Vietnam une tongue histoire (Hanoi. in 1815.

Everything shall be noted and described in detail for submission to the supreme attention of His Majesty The Emperor. breadth. undertake a careful examination of the terrain. as a pre-colonial State. Emperor Minh Mang carried on his predecessor's plan to survey the entire territory. the Minister for Public Works prepared a report for the King on the Company's activities. the King ordered the Commander of the Navy. the competent Minister prepared a report for the King on the need to postpone the Company's voyages for lack of funds. the Minister for the Interior prepared a report for the King on the Company's expenditure. The Paracels are described in it. The following inscription was to be engraved on each post: 17th year of the reign of Minh Mang by imperial order Commander of the Navy Pham Huu Nhat came here to Hoang Sa for reconnaissance and to make topographical measurements and leaves this post as record thereof. In 1837. Two cases in point are Chaigneau (Memoir on Cochin China) and Gutzlaff (1849.Acquisition of the Original Title 69 In 1836. The King assented. It can therefore be argued that the Empire of Annam. More detailed instructions were given in the matter of cartography. under Emperor Thieu Tri. The same year. the Mandarin of Quang Ha Province requested the King to abolish the tax levied on the Company's ships. As soon as the junks reach any island or sandbank. they shall from that point measure the length. Pham Huu Nhat. displayed specific interest in the archipelagos and performed acts of admin- . record whether access is dangerous or poses no problem. 20th year of the reign of Tu Duc. take measurements and make a sketch. identify any submerged sandbanks or reefs. The same year (1836). height. the depth of the surrounding waters. a number of sailors having lost their lives during the voyage to the archipelagos. the King conferred upon them the title of hero. These details are taken from Vietnamese historical documents. In 1838. In 1867. to lead the fleet himself and to prepare large wooden posts to mark the places inspected. In 1847. whose authenticity has been acknowledged by various foreign authors. On the Cochin Chinese Empire). Journal of the Royal Geographical Society. surface area and circumference of that island or sandbank. regardless of what kind.

a historically established fact.43 We shall not dwell on expeditions whose purpose was to compile maps and to discover shipping routes. 8. since it was expressed by the type of acts singled out in legal precedents. United Nations A/42/346. indeed this is quite plausible. from that date onwards. . What now needs to be done is carefully to define the boundaries of such activity. 1976). letter dated 2 May 1988 from the Charge d'affaires ad interim of the Permanent Mission of Vietnam to the United Nations Organization addressed to the Secretary-General. Thus the intention of sovereignty on the part of the State was certain from the early 18th century onwards.forming a special maritime company. there was a real intention to assert sovereignty over the islands. information based on verifiable historical documents goes back no earlier than the early 18th century. 76. 55-56 supra the examples taken from the Minquiers and Ecrehos case. The first authoritative text is that of Le Qui Don in 1776. Statement cited without a specific reference (1988) Nouvelles sinologiques. Hamburg Institute of Asian Affairs. and it is impossible to extrapolate with certainty.70 Chapter II istration there at a time when no other State had shown any interest in them as sovereign. 2 May 1988. He describes in detail the exploitation of the archipelagos from 1702 onwards. Disputed Islands in the South China Sea (Wiesbaden.42 The Hoang Sa Maritime Company may well have been in existence before 1702. profiting from. and by so doing stamp its authority). Nevertheless. its date. Such ventures are initiated by geographers and navigators and help to promote a general.41 The formation of a right to the islands and the scope of this right The documents produced reveal governmental activity by Vietnam in the archipelagos. The Vietnamese authorities state that the Hoang Sa maritime brigades operated continuously from the first Nguyen dynasty onwards (15581786). on the grounds that it wished to terminate such activities. intensity and geographical spread. universal knowledge of a land or maritime region (even though China claims that it ended the reconnaissance surveys carried out by the Germans in the islands in 1883. See pp. managing and recompensing that company. at p. financing. Be this as it may.44 Many other activities which might be characterized as conduct of a State . no. deciding to erect constructions on the 41 42 43 44 See Dieter Heinzig.

were acts which could not be misinterpreted. intending them to have symbolic value such as a monument or boundary-marker denoting sovereignty . . note40. The assertion of sovereignty by the Vietnamese appears to have concerned a larger area than the Paracels alone. 68. ceremonial visit by Emperor Gia Long in 1816. They were seasonal acts. which opened a fresh chapter in the history of international law. which made widespread. The imperial authorities of Annam carried out these various kinds of activities on the islands. These acts were effective. at p. They leave no doubt as to the intention to assert sovereignty. examining the whole period from ancient times to the French protectorate. Arbitral award. uninterrupted administration of the territories. 1843-1851): The Hoang Sa are an integral part of our maritime territory and are of great strategic importance. King Victor Emmanuel III of Italy recognized the validity of an occupation based on acts of supervision. Vietnamese geographical works of the 19th century mention 130 45 46 See p. but that arose from the physical and climatic characteristics of the islands. the Vietnamese authorities had acquired rights of sovereignty over the archipelagos in accordance with the rules of international law applicable at the time.46 These were acts of public authorities at the highest level. In his Arbitral Award of 28 January 1931 in the Clipperton Island case between France and Mexico. 390. Even disregarding the personal. In the absence of any challenge whatsoever. on the grounds that it is mentioned by French authors alone. consistent facts to bear out the assertion that. these acts constituted what might well be called peaceful. between the 18th century and the onset of the colonial period. the geographical scope of the rights thus asserted must be stated more precisely.Acquisition of the Original Title 71 territories. Clipperton Island (1935) American Journal of International Law. The date of consolidation of the protectorate (1884) coincided with the Berlin Congress. They correspond to the assertion found in the administrative register of Dai Nam (Kham Dinh Dai nam hoi dien su le. Nevertheless.45 there are still enough concordant. permanent occupation impossible. There are two pointers to this. their effectiveness meeting both the requirements of the time and the topographical and physical conditions in the islands.

written between 1865 and 1882.000-li sandbank.47 Yet the figure of 130 does not correspond to either archipelago alone. Each year. 1821. under a favourable wind. Seabirds congregate in these places in countless numbers. A Northern Sea Company was also founded. etc.e. the company embarked to harvest the products of the sea which it brought back to the port of TuHien in the eighth month. to collect the products of the sea on the Kouen-Leuen Islands in the Northern Sea. The islands number over 130 rocks. or the 10. and 47 48 49 50 Particularly in Phan Huy Chu. found a way to do so by bringing under the same command two companies with separate geographical destinations. from the name then given to the Spratly Islands by both the Vietnamese and the Chinese. text cited by P. i.46 Also. The products are many: hai-sam.50 This map shows a group of islands distinct from the coastal islands. lying between one day and several hours apart from each other. mother-ofpearl. doi-moi. minded to profit from both archipelagos. stretching endless thousands of li. Annex 4. The beginning of the Nguyen reign saw the formation of the Hoang Sa Company. Regulations of Successive Dynasties by Subject-Matter (Lich Trieu hien chuong loai chi). See list of islands. under the same command. instead it corresponds quite accurately to the two groups together. an idea supported by the map compiled in the 14th year of the reign of Minh Mang. These particulars strongly suggest that the emperors. The Hoang Sa Islands lie east of Ly Island. . commonly called van-ly-trug-sa-chan. The east of the islands lies close to the prefecture of K'iong Chow on Hainan Island.A. Wrecks are commonly found. Annamese records. land standing clear of the water.72 Chapter II elevations. large turtles. A Geographical Description of Reunified Dai Nam. Annamese records clearly show that there were several companies with distinct geographical destinations. and in Dai Nam Nhat Thong. From the port of Sa Can. Reproduced in Annex 9. Lapique. At their heart stands a bank of yellow sand. There is a well on this bank. it is possible to reach them in three or four days' journey. in the third month. with a fresh water spring. made up of 70 men from the village of Vinh-An. which belongs to the Chinese Empire.49 One of the companies founded in the 19th century was called Bac Hai.

did it acquire rights through those of Vietnam. The sailors call this place the China Sea. and even if he was a diplomat rejoining his post in Europe. The possible expression of competing rights A right comes into existence only if. arrived at noon on the 24th day (of the 10th month of the 2nd year of the reign of Guangxu). once asserted. the Chinese documents fail to establish any acquisition of sovereignty in the period prior to the early 18th century. having covered 831 li. journeyed to England in 1876 in order to take up his post. Assuming it to be authentic. Not far away. and no reference is given. These islands belong to China. So dictates the machinery of intertemporal law. at a point 17° 30' north of the equator and 200 to 300 li south of QiongZhou. as well as coral of mediocre quality. He wrote the following passage in Shi Xi Ji Cheng (Notes on my Official Travels to the West): "The vessel. Any immediate challenge to the assertion of the right. under the relation of vassalage between the two States? a) The absence of historical Chinese titles to the islands As seen in the preceding section. The case of China China's situation must be studied in the light of two questions: did it.' The document cited does not bear a precise date. to the left. weakens the right and may call it into question. any impediment to its exercise. it is maintained under certain conditions. by its own actions. After that time. acquire autonomous rights competing with those of Vietnam during that period. harking back to the differentiation between the two archipelagos. it is an account of a journey. and authentically translated. did any new facts establish rights for China? One of the brochures published by China contains the following account: Under the Qing. the Chinese Minister accredited to Great Britain. Guo Songtao. lie the Paracels (the Xisha Islands) which yield sea cucumbers.Acquisition of the Original Title 73 depicted with two different names. We must therefore examine the respective attitudes of the possible rivals. the mention in passing that the . The author was not writing in an official capacity.

Reproduced in the archives of the French Foreign Ministry. pp. op. but further. An explanation has been put forward by some historians: 51 See in particular Jeanette Greenfield. in the 19th century when the rulers of Vietnam organized the exploitation of the islands under their jurisdiction on a sounder administrative footing. 1992).51 In all these documents it is noted that Chinese fishermen have visited the islands since time immemorial. op. 55 M. nor did it do so throughout the 18th century. which did not correspond to a taking of possession.53 All the more so in that the same archipelagos were also visited by Annamese fishermen over the same periods. China's Practice in the Law of the Sea (Oxford. p. page 2 of Hai-Quoc do chi. . it appears to have acquiesced in the taking of possession by the Vietnamese. The author quotes the Chinese texts analyzed above.54 The conclusion which follows is: There is no evidence here that the Ch'ing State had in any sense absorbed the islands into the imperial domain. Clarendon Press.. is not an adequate foundation for what certain authors have called a claim by China in the distant past. 54 Quoted in volume 13. Several thousand leagues in length. p. p. 53 Moore 5. however interesting. We even find statements in historical Chinese writings which confirm the absence of Chinese claims in history.S. 154-155. by its silence. there is no trace that China ever opposed the assertion of sovereignty by Emperor Gia Long and his successors. especially. 25.. folio 4. 5036 (original Spanish). 52 Particularly Window. She concludes that there is a Chinese claim to the archipelagos. these were private. nor to the intention to assert sovereignty. Box file AS 1840 China 797. non-proprietary acts. nor. as we know (see Section I). 25. In fact.74 Chapter II islands belong to China. Description of the Barbarian Lands) and which contain a description of the islands as places foreign to China. Samuels. texts whose very titles are revealing (e.52 However. cit. it forms a rampart on the periphery of the Kingdom of Annam.55 Not only did China itself therefore not carry out any act of sovereignty. In Hai Luc we read: Van ly truong Sa is a sandbank rising above the sea. cit. written in the 22nd year of the reign of Dasquang of the Thanh (1730). since occupation 'by individuals who are not acting in the name of their government but who are pursuing their own interest does not constitute possession'.g.

Zhou Jian. For example. 265). Yet there were also fishermen from other 56 51 P. are therefore led to the conclusion that China has no ancient historic title to the Paracels and Spratlys. The author contradicts himself since in the same thesis and without citing precise references. Jian Zhou notes in his chronology. The only undeniable fact is the presence of seasonal Chinese fishermen. and one or two ports on the south coast. states on page 241 that 'the southernmost point is the Yashou coast of Quongzhou Island at latitude 18°13' north'. Furthermore. China's indifference to the archipelagos at that period is confirmed by two documents: the Chinese Map of the Unified Empire by Hoang Chao Yitong Yudi Zongtu published in 1894.56 Thus it is plausible that China took no interest in the archipelagos throughout the 19th century (moreover it was to give proof of this in the last years of the century). he contends that 'the Chinese Government under the various dynasties had administratively annexed the islands and had placed them under the jurisdiction of the authorities of Kwangtung Province' (p. but who deliberately examine each element of the reasoning in a quest for objectivity. Such a hypothesis could be defended only on the basis of unpublished documents in addition to all those on which this study has been based. op. This fact is attested by Chinese researchers themselves. 4. p.57 This reveals quite clearly that.Acquisition of the Original Title 75 Since the far-off days of Gia Long. p. the Chinese geography textbook Zhongguo Dihixue Jiao Keshu. University of Paris X. in a thesis for a French university.A. thesis completed under the supervision of Professor Hubert Thierry. . The occupation of Hainan was little more than nominal. cit. the Chinese. Nanterre. On that map Chinese territory is shown extending only as far as Hainan Island. These documents published at the end of the period under consideration confirm that until then (late 19th century).. were too far away. 562. prior to that date. the Chinese occupied only a narrow coastal strip in the north of the island. there had been neither reconnaissance nor a fortiori administration. Les frontieres maritimes de la Chine. for the year 1902. published in 1906. a 'first Chinese reconnaissance in the vicinity oftheXisha Islands (Paracels)'. Lapique. China had voiced no clear claim to either archipelago. Authors who are not content to confirm pre-established positions. the only neighbours who might have intervened in the Paracels. Until very recent times.

a more highly structured model and one better known to western jurists. their acts merely 'confirmed Chinese sovereignty over islands which were not Annamese. . 434436.' 60 The nature of this tie of vassalage therefore needs to be elucidated as well as its consequences for the jurisdiction of the islands. This tie of vassalage is difficult to define in legal terms. would be rash. at pp. In international law this does not constitute the basis for legal title. the United Kingdom. 21. p. as its precise meaning is vague and has fluctuated in intensity down the ages. cit. The Kingdom of Vietnam (Dai-Co-Viet) was founded in the 11th century by the creation of a political power and administration independent of China. As for the legal validity of these reports.59 b) The non-existent consequences of vassalage Did not China's suzerainty over Vietnam. 1938). Accordingly. Arbitral Award of 6 June 1904 by King Victor Emmanuel III of Italy. Les origines du con/lit franco-chinois a propos du Tonkin jusqu 'en 1883 (Saigon. with which they could scarcely be reconciled. 82. bearing in mind the two different historical epochs involved and the gulf between European concepts and those of Asian society. 'The People's Republic of China and the Use of International Law in the Spratly Islands Dispute' (1992) Stanford Journal of International Law.61 58 59 60 61 See Michael Bennett. Any comparison with European feudalism. p. it obviously cannot be assessed according to the international rules of the community of European States. however. See Jean-Pierre Ferrier. Huan-Lai Cho (Chinese Vice-Consul in Saigon). confer rights through Vietnam's own actions? China's response to Vietnam's detailed arguments in favour of its acquisition of sovereignty through acts dating back to the 18th century has been that the Kings of Annam never acted other than on behalf of their suzerain. Imprimerie Albert Portail.76 Chapter II countries. Brazil v. 180 (The author in no way endorses this Chinese argument).. p. op. The tie would appear to have consisted above all of religious allegiance accompanied by a tribute of varying frequency. the Emperor of China. Reports of International Arbitral Awards XI.58 A simple affirmation of the rights of sovereignty or a manifest intention to render the occupation effective cannot suffice. but (prudently) acknowledging Chinese suzerainty.

62 The Chinese themselves had a vague. Portugal and the Holy See!' 63 In no way is this a legal system of the kind which. It was a matter of 'a 61 63 64 Francois Joyaux. Siam. Publication de la Sorbonne. the tribute. Great Britain. There was nothing of this kind in relations between Annam and China. pp. Also. it had no alternative but to accept vassal status with respect to the Emperor. . since it used the Chinese script and observed the Chinese rituals. The semi-sovereign State is characterized by the fact that its international status is never complete. Laos. The civilized world.64 In such cases. it indicated the maximum independence to which the kingdom could aspire without provoking any imperialistic reaction on the part of China. The vassalage nominally accepted by Annam. the hallmarks of civilization. 1954. op. La Chine et le reglement du premier conflit d'Indochine (Geneve. it indicated the maximum dependence in which it could hope to maintain the Dai Viet without provoking any reaction against imperialism on its part. so much so that the 'Official Yearbook of the Chinese Government classed as vassal States in the 19th century: Annam. 1979). cit. the Confucian one in other words. bearing in mind the Confucian nature of the two countries. The mandatory deference by the court of Hue to the court of Peking was purely formal. 44-45. Italy. never allowed China access to the foreign relations of ancient Vietnam. evinced common adherence to one system of values. certain international powers are relinquished to the suzerain and part of the vassal's sovereignty is amputated. See on this point Nguyen-Huu-Tru. the Netherlands. to participate in this world to which the Dai Viet belonged. extensive concept of it. 1976).Acquisition of the Original Title 77 The Viet dynasty needed Chinese blessing in order to gain recognition. Burma. in part at least. Quoted by Jean-Pierre Ferrier. pp. has been characterized as 'semi-sovereignty'. 180-181. pp. on the contrary. For China. What would be more appropriate is the idea of two contiguous worlds: the civilized and the non-civilized. 26 (in particular note 3) and 27. Bruylant. just as the modern State cannot do without international recognition to survive. in the form of honorary services.. the idea of two separate nations is scarcely appropriate. in other cases. was organized around the Emperor (whom we call the Emperor of China). In either case. For the Dai Viet. Quelques problemes de succession d'Etats concernant le Vietnam (Brussels. What this means is that this tribute in fact concealed an extremely complex system of relations. from the Chinese standpoint.

II). It was China's very indifference that enabled Vietnamese independence towards it to develop during the years of French settlement (prior to the protectorate). unless it had been replaced by another title valid according to the law of the time of replacement. Reports. the kings of Vietnam never failed to seek to appease their gigantic neighbour by symbolically paying liege. and the Court added: Such an alleged original feudal title of the Kings of France in respect of the Channel Islands could today produce no legal effect. the history of Sino-Vietnamese relations has seen many Chinese military ventures against Vietnam.. are also a fortiori valid for relations between Vietnam and China.66 The following conclusions may be drawn from this for the present case: the vassalage of Vietnam with respect to China was certainly much more nominal than that of the Dukes of Normandy with respect to the Kings of France (even assuming the comparison can be made in such different political and cultural settings). 1956. The Chinese argument derived from vassalage can therefore scarcely have any legal significance. the conclusions of the Court. even if the French Kings had had an original feudal title also in respect of the Channel Islands. On that day 'the symbolic Chinese seal. There is a major precedent in case-law which reinforces this assertion. op. views comparable to those expressed today in relation to the archipelagos in the China Sea were put forward. France held that it possessed original rights simply by virtue of the fact that the Dukes of Normandy were the vassals of the Kings of France and that the Kings of England had received the Duchy of Normandy in fee. the Court found that.' 65 Ever since the State of Vietnam was created by throwing off the Chinese yoke. p. To this the United Kingdom objected that the title of the French Kings in respect of Normandy was only nominal. a handsome article worked in gold and silver. Noting that these were uncertain and controversial views on a remote feudal epoch. La geste francaise en Indochine (Adrien Maisonneuve. vol. valid for European feudalism. 27.78 Chapter II nominal. quoted by Nguyen Huu Tru. the vassalage of Vietnam ended on the very day of the signature of the 1884 Treaty of French Protectorate. When victorious. . 56. Taboulet. It is for the French Government to establish that it was so replaced. surmounted by a camel 65 66 G. cit. that title had lapsed in 1204. in fact. ritual and wholly moral suzerainty rather than actual suzerainty of a political kind. In the Minquiers and Ecrehos case. International Court of Justice. 1953 at p.

All the conditions required for application of the dictum of the International Court of Justice in 1953 were therefore met: the original feudal title 'could today produce no legal effect. it will be noted that.. op. cit. . None of the other States in the region had made any claim at that time. They cannot but have been acquired by Vietnam. The time of replacement is the one lasting up to the French protectorate. that is if it actually ever took any interest in the archipelagos. and there is no evidence to this effect. At any event. In losing (feudal) control of Vietnam. China lost control over the archipelagos. There was no mention whatever of the Spratlys. was melted down in the presence of Patenotre. It is impossible to divide the territory of Vietnam in this way. China did not express the least desire to retain any of the rights acquired by Vietnam throughout a long history over its land or island territory. No reservation was expressed by China at the time to this effect. in 1898. 28. the French plenipotentiary. The conclusion reached in this chapter is therefore that: 67 Nguyen Huu Tru. a gift from the Emperor of China to Gia Long in 1803. Lastly. the treaty concluded in Paris between Spain and the United States of America to end the war between them. during a solemn ceremony'. as we have seen. At that time. when China alleges vassalage in order to claim that the rights acquired by Vietnam would revert to it. China had not acquired any title to the archipelagos according to the law of the day. The other States in the region Did other States (during the same period) express the intention to exercise sovereignty? The reply to this question needs no hesitation.67 This change was apparently greeted by Chinese indifference. None today seeks to found claims upon acts which took place in the 19th century or earlier.Acquisition of the Original Title 79 couchant. p. note 8. unless it had been replaced by another title valid according to the law of the time of replacement'. then (if the argument of vassalage is rejected) China nevertheless acknowledges that rights had indeed been acquired. It should be noted that. Therefore nothing could have replaced a vassalage which had disappeared after having been chiefly symbolic. included the Philippines under American administration.

in accordance with the legal system of the time. There is reason to think that the Vietnamese administration also included the Spratlys. In that case. Vietnam possessed a right over the archipelagos. or at least enough large islands to result. such as to counterbalance or cancel the manifestations of Vietnamese sovereignty. which must subsequently be consolidated by its holders. At this point in the analysis. . The problem then arises of whether or not the title was consolidated and above all maintained in relation to the evolution of international law.000 square kilometres. . we can echo Max Huber's comment and say that there is no manifestation whatever of the exercise of sovereignty over the islands by China or any other State.80 Chapter II . It remains to be seen whether it was actually exercised over the archipelago as a whole.This right was undoubtedly exercised over the Paracels.At the time of the signature of the Treaty of French Protectorate in 1884. by extension. there is an 'inchoate title'. in a right over all of them. and subject to the reservations just made. a right unchallenged and going back almost two centuries. But there is nothing specific to say that this then concerned the whole of an archipelago covering 160.

Was the right of sovereignty over the archipelagos. Then the situation in the archipelagos will be considered in relation to the two main historical periods: the years during which the French colonial State exercised international authority over Vietnam until 1954— 1956 (Section II). the rules extended under the effect of custom and by application in jurisprudence to the point where they became universal. consolidated and maintained. They were later followed by other fundamental changes in the law. One element will be analysed in an introductory paragraph thus dispensing with one argument relating to the Franco-Chinese Treaty of 26 June 1887. Yet the period which then dawned was a tangled web of extreme complications both as regards the general situation in the two countries chiefly concerned (China and Vietnam). . or did it give way to another sovereignty and in what circumstances? First. which had no bearing on sovereignty over the archipelagos. even though this is not necessarily decisive in all cases. treaty titles occupy an important place. THE FRANCO-CHINESE TREATY OF 26 JUNE 1887 Where the acquisition of sovereignty is concerned. or did it disappear through the simple abandonment of these territories.Chapter III Subsequent Development of the Title The turning point of 1884 is an important one for the archipelagos. we must outline the development of international law since 1884 (Section I). then the years when the Vietnamese people reappeared speaking for itself. and as regards the administration and occupation of the two archipelagos. but with the many complications and contradictions of the history of Vietnam since the end of the colonial war (Section III). which had developed up to the 19th century in Vietnam's favour. coincidentally. marking as it does the beginning of the period of French colonization in Vietnam and also. the establishment (after the Congress of Berlin) of new rules of international law. While at first valid in the specific context of the Great Powers present in Berlin and relating only to African territories.

no such reference is made by either of the parties with respect to the period examined in the previous chapter. which traced the frontier between China and 1 Max Huber. China sought to base its claim on various arguments. the treaty can only be the proof and support of effective administration. Island of Palmas Award. Spain) had acquired a title she never intended to abandon. inter-State relations are more solid if based on a written text. 850 . it is still illuminating to establish whether there was a genuine treaty commitment with respect to these territories.82 Chapter III True. have thus traditionally sought firmly to base their rights by ensuring that they were recognized in written conventions concluded with third and sometimes rival States. However. therefore. By itself it cannot make up for the lack of such administration. is both the reality of the administration of the islands and the intention to exercise that administration as a sovereign. 4 April 1928. deriving from the principle of respect for an undertaking given (pacta sunt servanda). The Award states. op.e. Still less could it entail the attribution of sovereignty to a State whose inactive title conflicted with an effective administration actually exercised by another State. when during the colonial period France expressed interest in the Paracels and the French Government challenged China's right to grant concessions on the archipelagos. Where the archipelagos in the China Sea are concerned.. However. and notwithstanding the solidity of the rights recognized by treaties.1 What has to be investigated. A Note dated 29 September 1932 from the Republic of China to the French Government based itself on the Franco-Chinese Convention of 26 June 1887. among other things: Moreover. each word of which tells and to which the States have pledged themselves by their signature and ratification. This was the whole thrust of the award delivered on 4 April 1928 by Judge Max Huber in the Island of Palmas case. States having acquired territories originally vacant by discovery followed by effective administration with the intention of exercising sovereignty. it would remain to be seen whether continuous and peaceful display of sovereignty by any other Power at a later period might not have superseded even conventional rights. cit. even if she (i. On the other hand. p.

p. beyond the frontier as fixed by the Delimitation Commission.3 that is to say the north-south line passing through the eastern point of the island of Tcha's-Kou or Ouan-Chan (Tra Co) which forms the boundary.4 However. cit. it is understood that the disputed points which are situated to the east and north-east of Monkai. are allocated to China. The Convention relates to the land territories. at longitude 108 ° 03' 13 " east of Greenwi ch.. which states: In Kwangtung. stresses the role of good faith in the interpretation and the need to interpret the texts in accordance with the ordinary meaning to be given to the terms and in the light of the object and purpose of the treaty (Article 31). Although indications of lines drawn in the sea are given in old conventions 2 3 4 See Annex 10 for this Note. that the Paracels and Spratlys lying east of this delimitation belonged to China under the same text. there is good reason to consider this view irrelevant. 155. The French colonial power would thus appear. The same Convention (Article 32) authorizes recourse to the preparatory work and to the circumstances surrounding the conclusion of a treaty where a first interpretation leaves doubt about its meaning or leads to an absurd result. op. The object and purpose of the 1887 Treaty were the delimitation of the frontier between Tonkin and China (indeed. This is an argument which is found in a number of western authors writing in English or French. 3 of July 1956. . this is the title of the Convention as formulated by its authors). for example. See. by this form of words which does not even mention the two archipelagos. For the Vienna Convention of 29 June 1969. are also allocated to China. in an article published in Renmin RibaoPeking No. Jeannette Greenfield. A Chinese author.Subsequent Development of the Title 83 Vietnamese territory then under French control. to have abandoned them three years after extending its protectorate over the whole of Vietnam. In other words. bases himself on the terms of this Convention when contending. The islands which are east of the Paris meridian of 105°43' east.2 The Chinese Government still holds to this view today. The island of Gotho [Kao Tao] and other islands west of this meridian belong to Annam. An example is a Chinese publication of 1956. which codified the rules for the interpretation of treaties. Shao Xunxheng.

as well as in others such as the 1886 Convention between France and Portugal. Hence. it had been extended to six miles. . Furthermore. This is indeed the meaning given to the terms of the Convention by the French diplomats. There are some very small ones and there would be the danger of omitting one or other of them from the attribution. the text does not enumerate all of them. There was neither contiguous zone.R. In the interests of simplicity and effectiveness. On the 1887 Convention and the maritime delimitation between China and Vietnam. 224 et seq. nor fisheries zone. 1985). its additional purpose was to determine the closest islands. which France referred to as Tonkin. The Maritime Political Boundaries of the World (London. if some new island were to be formed by the accumulation of sand or some other geological phenomenon. Methuen. it would be attributed in pursuance of the text. This and nothing else is the meaning of the 1886 formulation. The Republic of Guinea held this line to possess the status of a maritime boundary. A treaty of 12 May 1886 was disputed. pp. For some States. the interpretation of this text must mean that it can be seen as an indication of the attribution of the coastal islands of the two States. The line has no need to end on a point. Only this part of the present Vietnam was concerned.the north-south line passing through the eastern point of the island of Tcha's-Kou (Tra Co) . see J.but has no terminal point. the somewhat analogous case between the Republic of Guinea and the Republic of Guinea-Bissau (Arbitral Award of 14 February 1985).7 5 6 7 Note. This cannot be either chance or an oversight. As a convention intended to settle the fate of the mainland.6 The only maritime territory on which the States claimed rights was the territorial sea.8 kilometres). The Treaty had drawn a maritime perimeter to separate the islands under French and those under Portuguese sovereignty. The frontier to be delimited was that between Tonkin and China. holding (paragraph 56 of the Award) that the object of the 1886 Convention had been the attribution of land territories alone. Its useful length is a function of the existence of the coastal islands. all these institutions dating from after World War II.V. New York. Prescott. nor continental shelf. it is very important to note that the line indicated has a precise starting point . In support of this interpretation.84 Chapter III such as the one concluded between France and China in 1887. The inclusion of the meridian is illuminating. The Tribunal did not endorse this view. for whom this meridian marks only the maritime extremity of the boundary between China and Tonkin (Foreign Affairs Note of 20 July 1933).5 they cannot be used in contemporary maritime delimitation negotiations other than as pointers to be reviewed in the light of modern delimitation law. Its usual breadth was three nautical miles (the nautical mile is equivalent to 1. in this connection.

attaching to China some territories and islands situated east of the mouth of the River Monkai and which were formerly under Annam. The recognition of China's rights therefore had no limits in the east and south-east. The awakening would come later. To simplify matters. seeing as they do in this Treaty the conventional basis of China's title to the Spratlys. to create the most favourable possible conditions for penetrating China. which are situated almost 300 nautical miles south-east.. the 105°43' Paris meridian was chosen as the demarcation line. and. France was dominated by the concern to secure the Indochinese market (an Indochina with delimited. the text of the agreement clearly shows that the clause at issue specifically refers to the Monkai region. For are the Philippines not islands situated east of the meridian indicated? However... the other contracting Party to this Convention. strongly protested against this interpretation: The provisions of the 1887 Treaty. would amount to saying that everything east of the 105°43' meridian belongs to China. however.. in view of European rivalries in this field. the pointers provided by the Vienna Convention must be followed to see whether the preparatory work can confirm or invalidate it. This was trade. Yet this is precisely what the Chinese authors do not scruple to defend.. and therefore controllable.. and prompt China to claim a conventional title to the Philippines for instance. if the interpretation becomes absurd. The question of the archipelagos was not raised by either side during the negotiations. land frontiers). had no other object but to fix the maritime frontier between China and Tonkin in the region of Monkai. The preparatory work does indeed illustrate the concerns of the two parties and what was at stake in their relations at the time. China could therefore . It can thus quite legitimately be asked why one should stop at these coral archipelagos? The rights conceded to China by France might thus be extended so considerably as to border on the absurd. Subsequent events were clearly to show that the years which followed were years of loss of interest on the part of these two countries in the Paracels and the Spratlys.Subsequent Development of the Title 85 How could it possibly have been thought that the authors of the text had envisaged the legal validity of this line to where it intersects the coast of Annam? All the Vietnamese coastal islands in the region which lie south of Hue would have become Chinese by virtue of this text. However. France. It was then that China sought to invoke an ad hoc interpretation of the 1887 Treaty. To seek to apply it to the Paracels. prompted by other desires.

international law relating to the attribution of territories has evolved. especially territorial disputes. The acquisition of title (which could have taken place under the less stringent requirements of the previous era) then had to be consolidated under the new. its content rapidly became universal in scope. see Note by Mr ChargueraudHartmann for the Under-Directorate for Asia of 16 August 1933. was relative in character. The right was maintained only if such conditions were complied with. the prohibition of the use of force and of the acquisition of territory by force. The rules governing rights to a territory in the late 19th century and thereafter Like any other treaty. It has become exacting and more technical. . the Berlin General Act of 1885 which divided up the African territories. stricter conditions. Yet. after which the acts of States can no longer be taken into account for the construction of a right. APPLICABLE LAW AFTER 1884 The late 19th century. It bound only the States parties and was valid only in respect of the territories under negotiation. Poulo Cecir among them! The absurd consequences of such an argument clearly show that only local scope and significance should be given to the clause in the 1887 Convention. a period of intense international relations. because it was the expression of the new social requirement.86 Chapter III lay claim to most of the coastal islands of Indochina. because such acts are carried out with the intention of belatedly displaying their authority. was also a period of many changes which gradually refrained international law. and the need to identify the moment of crystallization.8 Meanwhile. On the same lines. These are: the fresh requirements of international law with regard to consolidating and maintaining title to territory (1884-1885). The rights of the various parties are evaluated on the basis of four concepts. the concept of State succession with the need to identify the predecessor and successor State in each case. 8 Note from Paris of 10 October 1937. and its extensions in the form of the principles of the protection of territorial integrity and of the right of peoples to selfdetermination. the notion of the critical date when weighing up international disputes.

p. we shall endeavour to identify the manifestations of sovereignty of the claimant State. op. Minquiers and Ecrehos case. The party which claims title must be able to prove that it exercised that title through regular acts of the State." Such acquiescence may be active but it may also be passive. 441. Consolidation may apply to territories where it is not possible to establish whether they used to belong to another State. reflecting a set of interests or relations attaching the territory to the State.I. and continues to do so for many years without any challenge from third parties.9 The machinery of consolidation is therefore very important. 441. 'L'acquiescement dans la jurisprudence internationale' (1965) Annuaire Francais de Droit International. See Jean Barale. 389 et seq. . at pp.. at p. (1962) Recueil des Cours de l'Academie de Droil International. 71. these acts corresponding to permanent. covering the entire territory concerned inasmuch as physical conditions allowed. 107. well-established usage. Suzanne Bastid. Where this is lacking. II. Reports 1953.J. it may be achieved not only through acquiescence per se but more easily through a sufficiently long period of absence of opposition on the part of States which might be interested in disputing possession. cit. The method followed by the Court (particularly in the Minquiers and Ecrehos case) consists in acknowledging the territorial sovereignty of the State which is able to prove a long. at p. 9 10 11 12 International Court of Justice.Subsequent Development of the Title 87 In order to examine whether or not this process of consolidated acquisition of sovereignty took place. when a State is the first to administer unclaimed territory. Suzanne Bastid. vol.12 The silence of third parties is important in the case of an original occupation. uninterrupted possession and peaceful administration. international tribunals consider that there is insufficient evidence of the government's intention to act as sovereign.10 Consolidation and maintenance of title over the centuries are linked to acquiescence on the part of other States. since in that case: Those acts [are not] of such a character that they can be considered as involving a manifestation of State authority in respect of the islets. and of its supposed rivals. Les problemes territoriaux dans la jurisprudence de la C.

Marcelo G. In such a case. the judges or arbitrators scrutinize most carefully the attitude of the States claiming to hold the true. cit.15 However. such non-recognition must be periodically renewed and must reflect a genuine will to oppose the actual situation. 240. see the note by the Foreign Ministry's legal adviser dated 25 May 1950. 389 et seq. 492. conversely protest preserves their rights. All we would need to do is verify their application to the situation of the archipelagos. Possession contestee et souverainete territoriale. p. 1997). For 'a sovereignty which is challenged must react.13 there being no 'customary rule attributing to effective possession atone the capacity to shift the existing title to sovereignty'. on pain of forfeiture'. other rights having already been established. and also by the exacerbation of political rivalries between States. op. Gerard Cohen-Jonathan. peaceful. . Such are the rules shaped by the greater demands of relations between societies and the increasing rarity of undiscovered territory. Annex II. It therefore requires a certain degree of intensity. Chronique de jurisprudence Internationale.88 Chapter III It is even more important when third parties claim that the original title was invalid because the territory was not terra nullius. Notion of State or government succession and its consequences The issue of the international status of the archipelagos in the China Sea is greatly complicated on all sides by problems of State or government succession. inter alia Jian Zhou. were it not for the fact that the vicissitudes of history introduced other concepts whose legal content must be determined before we proceed. Cohen. PUF. Their silence implies acquiescence. at pp. public administration. It must be noted that the legal analyses favouring the Chinese position rarely take account of the various State successions.14 Thus nonrecognition may impede the validation of a de facto situation. If it can provide evidence of a long period of continuous. the current occupying State is then in a position of acquisitive prescription. For an outline of these difficulties. Les iles Falkland (Malouines) (1972) Annuaire Francais de Droit International. in which the previous occupying State showed no interest. Publications de l'Institut Universitaire des Hautes Etudes Internationales (Geneva.16 13 14 15 16 Jean-Pierre Cot. Affaire du Temple de Preah Vihear (1962) Annuaire Francais de Droit International. at p. original title.

known as the Patenotre Treaty. the Empire of Annam retained a degree of international personality through the system of the protectorate.. 44-50. In the initial. on 19 August 1945 the Emperor abdicated in 17 18 Sir Humphrey Waldock (1968) Yearbook of the International Law Commission. paragraph 1) and retained the power to conclude treaties under certain conditions. 91. The Patenotre Treaty had not been formally abolished. Its attachment to the Ministry of the Colonies was effective from 1894 onwards. op. this being understood as * the fact of the replacement of one State by another . was nevertheless preserved. The author bases his reasoning on some scholarly opinion and on judgments in French administrative jurisprudence which recognized the inclusion of Annam and Cambodia in a legal entity of French public law. Quoted by Michel Virally in the preface to the work by Nguyen Huu Tru. yet from 1885 onwards the situation was.Subsequent Development of the Title The case of Vietnam 89 On the Vietnamese side. cit. vol. reunified Vietnam (the shelling of the port of Tourane in 1856 marked the start of the colonial conquest). and the personality of France effectively replaced that of the Empire of Annam. II. paragraph 2)..1* The renaissance of the unified Vietnamese State was long and painful. with respect to a given territory'" . 120 years were to elapse between the pre-colonial Empire of Annam and a sovereign.. at p. albeit restrictive conditions under French control. a colonial one. 'France shall represent Annam in all its external relations' (Article 1. Its gradual incorporation into the Indochinese Union began with the decree of 17 October 1887. . However. See on this subject Nguyen Huu Tru. On 6 June 1884 a second Treaty of Protectorate. and a given time.. The status of French colony left no room for an international legal personality. pp.. The personality of Annam. Therefore a first instance of State succession did take place. Although colonial France spoke for Vietnam from the time of the protectorate until the Japanese overran the French troops in Indochina on 9 May 1945. somewhat uncertain period (lasting approximately until the nomination of Paul Doumer as Governor General in 1897). came into force. the Emperor simultaneously promised 'to align his foreign policy on that of France and to change nothing in his current diplomatic relations' (Article 3. giving France more swingeing powers. Under the first Treaty (15 March 1874). between 1945 and 1975 many voices were raised on its behalf. de facto. a highly fictitious one. A first declaration of independence was made by Emperor Bao Dai on 11 March 1945.

See Chronology. At the time France still considered itself to have sovereignty over Indochina. the Viet Minh Government. The issue of the international status of the Republic of Vietnam was the spark which ignited the armed colonial conflict. pp. France adopted a position under which Cochin China was incorporated into this State. supra. under the Agreement of 6 March 1946. 19 20 21 But which had had neither the time nor the means to impose its authority on Cochin China. . See Nguyen Huu Tru. which controlled Cochin China alone. on 27 June 1947 France set up a Provisional Central Government of Vietnam in Saigon. on the other it was endeavouring to reassert its sovereignty over Indochina and more precisely to obtain the withdrawal of Chinese troops from Vietnamese territory. which country validly represented Vietnam in international law between 1946 and 1949? Changing its strategy and banking on division. which was then considered to be the successor to the Empire of Annam. 34. The Revolutionary Government. Thenceforth. it recognized 'the Republic of Vietnam as a free State having its own government. Under such conditions. therefore.90 Chapter III favour of the Revolutionary Government of Ho Chi Minh. formerly a protectorate.. the Government of the Associated State.19 proclaimed both independence and the creation of the Democratic Republic of Vietnam on 2 September 1945. competing claims to exercise acts of sovereignty emerged. This legal procedure counted for little. with the agreement of France (although not without further hesitation). whereas Vietnam intended to make full use of its international personality. 72 et seq. The Agreements of 8 March 1949 created an Associated State of Vietnam. recognizing its independence in the Along Bay Declaration of 5 June 1948. From late 1946 onwards.20 France found itself in a cleft stick: on the one hand. which controlled Tonkin and Annam.21 Through a process of tortuous legal manoeuvres. p. army and finances. and forming part of the Indochinese Federation and the French Union' (Article 1). op. effective government was shared between: the French Expeditionary Force. the Associated State of Vietnam had an international personality. which controlled a large part of Tonkin and Annam and was internationally recognized by certain States from 1950 onwards. From 1949 to 1954. cit. which was still present along with political advisers.

Subsequent Development of the Title 91 Which country. at war with each other. providing only ill-defined solutions. It gives no precise guidance on how to identify the successor and predecessor States (or Governments) when there are several contenders. At the same time. one in which two States co-existed de facto. each claiming with different diplomatic support to represent the Vietnamese nation. How far could the Central Government subsequently rely on these acts? Moreover. . China's case also presents some interesting difficulties in terms of State succession. So a further phase in the history of Vietnam commenced. each member State of the international community is free to recognize the State or government it chooses. France recognized the full independence and sovereignty of the State of Vietnam. under the Geneva Agreements. is it possible to interpret the relations of power within China. was entitled to carry out international acts in the archipelagos? What was the value of such acts for the governments of later periods? From 1954 onwards. That is an issue settled bilaterally through the procedure of recognition. the armistice agreements between the two high commands were concluded. and each having de facto only partial control over the territory and the population. therefore. which rejected the Agreements. The first arises from the fact that some of the instruments issued by China on the archipelagos (especially in 1921) were issued by a local government which was recognized neither by the Central Government of China nor by the European powers. Confronted with several contenders. on the basis of categories shaped by western political and legal culture? From 1949 onwards a second issue of State succession arose: should the People's Republic of China or Nationalist China succeed to the claims to the archipelagos formerly made by China? International law on State succession is somewhat vague. its French partner represented France alone. How should the acts concerning the archipelagos carried out by either State during this period be evaluated? The case of China Thouh not as complex. particularly the rules for attributing international powers. not the State of Vietnam. The Vietnamese military command represented the Democratic Republic of Vietnam.

under the Charter. and such separate and distinct status under the Charter shall exist until the people of the colony or Non-Self-Governing Territory have exercised 22 There are two Vienna Conventions. First. one on the Succession of States in respect of Treaties (1978). neither has yet come into force. and the integrity of their national territory shall be respected (paragraph 4) and also: Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations (paragraph 6). states: The territory of a colony or other Non-Self-Goveming Territory has. and has been echoed in many subsequent texts which have sought to flesh out all its consequences. in Article 1. . the status of territories has an objective character in international law. Second. having recalled the principle of the right of peoples to self-determination. resolution 1514 of 1960 entitled Declaration on the Granting of Independence to Colonial Countries and Peoples states: All armed action or repressive measures of all kinds directed against dependent peoples shall cease in order to enable them to exercise peacefully and freely their right to complete independence. a status separate and distinct from the territory of the State administering it. paragraph 2.22 Nonetheless. there is the protection afforded to the right of self-determination of peoples under contemporary international law. Status remains valid not only for the signatories to a treaty (when status derives from a treaty) or for the parties directly concerned.92 Chapter III The content of the rules of State succession This content is itself equivocal. It was written into the purposes of the Charter. but for all parties. since practice is so diversified. Thus. resolution 2625 of 1970 entitled Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations. the other on the Succession of States in respect of Matters other than Treaties (1983). contemporary international law has formulated and refined some recent principles which may be useful in seeking a solution to the dispute over the archipelagos. owing to an insufficient number of ratifications. Similarly.

then. the League of Nations Covenant prohibited wars of aggression.. prohibition of the use of force assumed the value of a legal principle applying to all States. The territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force.Subsequent Development of the Title 93 their right of self-determination in accordance with the Charter. including territorial disputes and problems concerning frontiers of States. . The principle formulated in 1945 was developed and reinforced in Resolution 26/25 (1970). not quite as baldly as this. After the upheaval of World War I. others had been introduced into the debate on sovereignty from the very outset. The territory of a State shall not be the object of military occupation resulting from the use of force in contravention of the provisions of the Charter. has developed protective principles designed to prevent decolonized peoples. emerging from a long colonial period. whether by accident or by design on the part of the colonial power. these texts show how contemporary international law. Principle of the prohibition of the acquisition of territories by force Traditional international law had made conquest an attribute of sovereignty. Admittedly. paragraph 4. The same text also stipulates that: Every State has the duty to refrain from the threat or use of force to violate the existing international boundaries of another State or as a means of solving international disputes. if it can be ascribed to the policy of the colonial power. on 26 August 1928.. since the distinction between just wars and. of the United Nations Charter. Taken together. Thus any weakening of the effectiveness of the administration of a territory cannot lead to a situation of res derelicta. With Article 2. the Briand-Kellogg Pact sought to outlaw war through the voluntary renunciation of the signatory States. from losing some of their territory. No territorial acquisition resulting from the threat or use of force shall be recognized as legal. the law of decolonization. and particularly its purposes and principles and further: Every State shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other State or country.

94 Chapter III Hence. the politics of the cannon can no longer have any legal effects. A. The notion of the critical date has been played down somewhat both by the case-law and by authors. the view expressed by A. the day Norway occupied the disputed territory. op. 115. The critical date is fixed as the moment a formal claim is expressed. The notion of the critical date is introduced into the discussion for the sake of clarifying it. 1959). However. Notion of the critical date and the moment of crystallization of the dispute International disputes over territories are often extremely protracted. 45. 187 et seq. Series A/B.G. The use of force cannot form the basis of law. Reports.23 the idea of the crystallization of the dispute nevertheless introduces confusion. 1953. claiming already at that time to have a long-established title. Permanent Court of International Justice. 104. pp. in the Minquiers and Ecrehos case. Roche in 1959 is still valid and likely to remain so:26 In brief the Court left itself considerable discretion as far as future cases are concerned. The Court accepts the idea of the crystallization of a dispute. at p. the evidence subsequently established no longer having any effect. While many authors concur that it signifies the date after which the acts of States can no longer modify their respective laws. Thesis No. 59. International Court of Justice. cit. The Minquiers and Ecrehos Case (Geneva. the disagreement between France and the United Kingdom on the critical date spanned more than a century (for France it was 1839 and for the United Kingdom it was 1956).24 In the Eastern Greenland case.G. Denmark. And yet one should not expect more from this notion than it is able to provide. 5 April 1933. Reports.. the Parties having declined to negotiate.25 Hence. Case concerning the Legal Status of Eastern Greenland. Neither scholarly opinion nor case-law has truly defined what should be understood by the critical date. . the Court opted for a critical date of 10 July 1931. Roche. protest or endeavour to persuade one another. since the rules applied are only 23 24 25 26 See Jean-Pierre Ferrier. it does not decline to consider events subsequent to that date as the manifestation of a continued development and 'unless the measure in question was taken with a view to improving the legal position of the Party concerned'. or its actual effects. at p. Crystallization would be the result of an impasse. p. had to prove the validity of the title on that date.

It was not challenged by China either on the ground or at the diplomatic level. The ignorance or negligence of the colonial power.28 As regards the contemporary conflict over the Paracels and Spratlys. it is for another reason already explained.Subsequent Development of the Title 95 prima facie rules which may be displaced by the Parties and are anyway not well enough rooted in judicial procedure as to be virtually binding on the Court. These are the years when Vietnam changed hands following the reinforced Protectorate of 1884. 867. the Vietnamese title was real and effective. some developing very gradually. And he invokes the 1887 frontier delimitation Treaty as the point when the conflict started to accelerate. 2 RIAA (1929) at p. Arbitral Award of 4 April 1928 between the United States of America and the Netherlands in the dispute concerning sovereignty over the Island of Palmas. while others are periodically active and then dormant. Of particular relevance at this point is the reasoning of Judge Max Huber when he wrote: It is not necessary that the display of sovereignty should be established as having begun at a precise epoch. every dispute is unique.27 It is hard to endorse this view. 33. as well as sometimes experiencing decisive accelerations. If the 1880s are pivotal to this conflict. it is crucial to the argument that the exercise of Vietnamese sovereignty was not opposed for a very long period. not for the reasons given by Mr Choon-ho Park. At that time. it is therefore impossible to predict what exactly will be the attitude adopted by the Court in any future cases. . Some authors have ventured an opinion on the critical date in the dispute over the archipelagos in the South China Sea. if exploited by a rival State turning this situation to advantage. in the absence of the expression of the Chinese claims in the 18th and 19th centuries. it suffices that it had existed at the critical period preceding the year 1898. could not lead to the creation of rights in respect of that rival State. The Franco-Chinese Treaty of 1887 does not deal with the archipelagos and could therefore have no legal consequences for their status. 27 28 Choon-ho Park. which in his view saw the beginning of a genuine dispute about control over the islands. It is for this reason. In reality. 'The South China Sea Disputes' (1978) 5 Ocean Development and International Law. that the 1880s were pivotal years in this dispute. 1 at p. Choon-ho Park sees the start of the dispute as going back to the 1880s. even indirectly. from this angle.

cit. but did not initially consider them to be an integral part of 29 30 31 Kriangsak Kittichaisaree. it did voice them whenever it had an opportunity to do so. 189 el seq. op. but also the proposal made by France for a judicial or arbitral settlement of the dispute over the archipelagos). weakened by conquest and by the speed with which France trans formed a protectorate into a virtual colony. whose respective legal weight would have to be evaluated. the title of the rulers of Vietnam peacefully exercised for decades. However. cit. he regards the date of 1954. Nor is it a matter of rivalry between two States making comparable claims. THE FATE OF THE ARCHIPELAGOS DURING THE COLONIAL PERIOD The fate of Vietnam's title. op. there is a well-established title.noting that judges or arbitrators never defined the question of the critical date when this was put to them. 'The Law and Procedure of the International Court of Justice' (1955) 6 British Yearbook of International Law at pp. It was not absent from them. France showed little interest in the archipelagos.. p. it is important to remember that this question is linked to that of the legal nature of the dispute.recognizes the importance of the year 1937 (which marked the effective French occupation. nor offered any criterion . . which had been solidly established during the 18th and 19th centuries.96 Chapter III Kriangsak Kittichaisaree however distances himself considerably from the notion of the critical date. More simply. The Vietnamese dynasty.. See Sir Gerald Fitzmaurice. the date of the end of the French presence in Vietnam.31 We must utilize these various legal tools here in order to examine what has become of the rights asserted by the various Parties during first the colonial and then the post-colonial era. though he also acknowledges that the rival claims did not really emerge until after the 1880s. pp.30 Without making too much of the notion of the critical date. At the outset. the dispute does not concern the legitimacy of the acquisition of a territory by a State having embarked on the acquisition of a res nullius. Contrary to what is often asserted. which needs to be examined in order to establish whether it may have been lost in favour of the acquisitive prescription by another legal subject. 142. was to become linked to subsequent political events. 30 et seq. However. Jean-Pierre Ferrier. as the most likely one to symbolize the crystallization of the dispute. voiced its claims to the islands in muted tones.29 And Jean-Pierre Ferrier .

Later. and the early years of the 20th century. Everything was dictated by the ulterior motive of outflanking rivals and accumulating evidence. It did so selectively. procrastinated and hesitated. Its knowledge of the historical facts was approximate. The actions of China. The colonial period was followed by the painful Japanese episode. coming under the control of the Japanese Navy. It let matters drift. The islands were a prize of war. Salvoes of discovery rang out over the islands. Our examination will focus on its possible loss. it dithered. The departure of the Japanese corresponded to a period marked by the quest for independence. In the closing years of the 19th century. World War II. but also Filipino or Taiwanese. however. In the course of these twists and turns. In the Paracels. It even disowned them. . there is no doubt that the title acquired by the Vietnam of old was weakened and challenged. Nothing remained that was peaceful or spontaneous. it had learned of the long history of the Vietnamese maritime companies operating in the archipelagos and was in a position to pose as successor. Several years later. it preferred to rely on the status of terra nullius. or continued existence.Subsequent Development of the Title 97 Vietnamese territory. China was the first to realize the threat. Then Japan entered the scene as a rising power. claiming original rights of acquisition. France made up its mind and voiced its claim in unequivocal terms. they were French. For the Spratlys. constitutes too great a rift to be disregarded. From 1909 onwards. in the Spratlys. The acts of the various States cited will therefore be examined both in the pre-war period then in the immediate post-war period. It exercised sovereignty. In the meantime. It will also be necessary to consider the attitude of the United Kingdom (which had shown interest in certain islets in the Spratlys). will be examined in turn infra. they were sometimes Chinese and sometimes French. and those of France until it left the region. China was not in the least interested in these unprepossessing islands. it thought in terms of State succession for the Paracels alone. Lacking sufficient information. protest and the absence of protest criss-crossed in an intricate pattern. and another era was born. and naturally that of Japan as well. and when China's claims became insistent.

reading as follows: The mandarins protested. It was described by P. The insurance companies then requested the intervention of the Minister of Great Britain in Peking and their Consul in Hoihow. It appears to bolster the thesis of Chinese acquiescence in the occupation of the islands by other countries. 4. Quite the reverse.A. claiming that the Paracels were abandoned islands which belonged to China no more than to Annam. Only one incident is related by historians. Lapique: Two of the many shipwrecks in the Paracels caused disputes which deserve mention.32 This incident is also reported in a Note of 6 May 1921 from the Government General of Indochina (Directorate of Political and Indigenous Affairs). and they denied liability.A. that of the German vessel Bellona on North Reef in 1895 and that of the Japanese vessel Imezi Maru in the Amphitrites in 1896. that they were not administratively attached to any district of Hainan and that no special authority was responsible for policing them. . cit. stating that the Paracels did not belong to China. See Annex 12. The mandarins protested. Both vessels were carrying a cargo of copper insured with British companies. The text is more specific. This view is of considerable significance. p.98 Chapter III From the French colonization of Indochina to World War II The policy of China a) Lack of interest on China's part Between 1884 and 1909 there was no hint that China had any interest in these slivers of land. Chinese sailors in sampans or small junks looted the wrecks and landed the copper at Hainan.. They were local authorities and therefore in the best 32 33 P. op. Lapique. It proved impossible to salvage the cargo and the wrecks were abandoned. who sought to hold the local mandarins responsible. were not administratively attached to any district of Hainan.33 Both versions clearly state that the authorities at local level firmly rejected any idea of Chinese sovereignty over the islands.

35 The Viceroy of the Two Kwangs sent three officers on an exploratory expedition (in April 1909). since they asserted these rights by means of symbolic acts. the Chinese wished to outflank any Japanese claim to the Paracels and initially contrived a reconnaissance mission to the islands. They noted traces of the passage of foreigners at various times in history. It was a true journey of discovery for the Chinese. op. since the first expedition was exploratory. the Viceroy then planned a more systematic exploration. It dates from 1909. They brought back a descriptive report on the islands. See Annex 13. Alerted by the fact that in 1907 the Japanese had laid their claim to the Pratas (another archipelago lying north-east of the Paracels). Nonetheless. Nevertheless. it returned to Canton on 9 June. This account confirms that the Chinese had sketchy knowledge of the archipelagos at that time. cil. Note dated 4 May 1909 from the Consul of France in Canton. On reading the report. The contention echoed by most Chinese documents that Germany became interested in the islands in 1883 and ceased all activity in the vicinity only at China's insistence is contradicted by the attitude of the mandarins related in the documents cited and is not based on verifiable references. On their part there was no more than ignorance of the fate of the archipelagos and lack of interest in them. p. . somewhat disillusioned.Subsequent Development of the Title 99 position to know the true situation.34 b) Reversal of China's attitude The Chinese action described infra indicates a complete change of tack. The Cantonese authorities then planned to develop local trade in the Paracels. It cannot therefore be inferred from these incidents that the Chinese authorities acquiesced in any way whatsoever in Vietnamese administration. he borrowed the cruiser Yuen K'ai from his colleague the Viceroy of Min Chen and. Hence a fresh Chinese expedition left Hong Kong on 21 May 1909. thus providing evidence of the absence of administration.. To this end. They stated that the islands had not been administratively incorporated. the expedition had raised the Chinese flag on the islands and had displayed China's sovereignty. and also the fact that they had not been convinced of their rights to the islands. 'Admiral Li was requested to provide the explorers with all possible assistance'. which is evidence of the lack of knowledge then prevailing in China. 34 35 See Jian Zhou. according to the Government General's Note. the mandarins also stated that the islands did not belong to Armam. as the Consul of France reported. 268 and Nouvelles sinologiques.

I was unable to take part. being then resident in Hong Kong. doubtless waiting. . cit. Jian Zhou.S. and is worth mention. Nonetheless. which some authors claim lasted one month. when. no. The latter was a 'river' admiral. as well as Chinese sailors including an admiral. then living in Hong Kong. so it would seem. the Company which employed me having decided otherwise. op. Lapique. but was more in the nature of a private venture. 8.. 53-54.100 Chapter III The Chinese documents give a different version of the facts.A.37 P. advancing in the lee of the land. op. gave his own interpretation of the events of 1909 in the following words: As for the Paracels. Although sorely tempted by this adventure. At that time the emotion aroused in China by the Japanese claims to the Pratas had not subsided. as if the islands were well known. with no mention of where. For whatever reason. before tackling the ocean. It might not even have had any link with the original project. The officials doubtless sought to regain face by organizing an expedition to the Paracels. an expedition did take place.36 They speak of a tour of inspection. Apparently what interested them more than my ability as a sailor to reach the islands was the fact that I was French. quite easily reached the port of Yu-Lin-Kan at the south end of Hainan. Samuels. 277. Late in 1908. or by mounting a show of annexation. In a similar vein. cit. it tarried there at least a fortnight. In late May 1909. at p. two small Cantonese gunboats set sail. The idea was to verify various assertions that the islands were covered in guano and that whole cargoes of pearl oysters were there for the picking around the reefs. I was approached by some Cantonese friends who were planning an expedition to the Paracels. for although the little fleet. 17. There is disagreement as to the duration of Admiral Li's voyage. for the 36 37 Nouvelles Sinologiques. M. with two Germans from the Carlowitz Company on board. I was aware of some of what transpired. they state that this reasserted China's sovereignty. or how. the reiteration implied in the prefix 're' evoking the idea that the same ceremony had taken place before. To justify raising the flag and firing a salvo (which are recognized facts). pp. p.. I have some personal memories dating back 20 years or so. sending me to the frontiers of Tibet at the time of the projected excursion to the Paracels. An expedition to the Paracels did take place in May-June 1909.

However.A. The Legation of France in China became concerned. . to a Chinese merchant named Ho Jui-Nien. The author continued in ironic vein: It would seem that the French administration. even today. which doubtless explains why the central Chinese Government. to avoid 'stirring up Chinese nationalism '. On 6 June (the nineteenth day of the moon) the expedition sighted one of the Paracel islands. the civilian Governor of Kwangtung incorporated the Paracels into the sub-prefecture of Yai Hien (Hainan). at 4 in the morning. nothing which corresponded to an administration of the islands. save for the passage of cruisers belonging to the Indochinese customs service. c) Confirmation of the Chinese intention to act as sovereign of the islands A further manifestation of the Chinese intention to attempt to recover the islands occurred in 1921. Correspondence between Mr Beauvais.Subsequent Development of the Title 101 'Fong Sani' to be favourable and not afflict the bold navigators with seasickness. and the French Foreign Minister clearly revealed that France followed with interest the trading concession awarded by the Government of Kwangtung. does not rely upon it. not to mention a study for two commercial ports and a bridge to link two of the islands!!! P. but did not lodge any official protest. in 1921. Consul of France in Canton. By an 'order' dated 30 March 1921. On 7 June. both gunboats returned to Canton by the direct route. as the 'Kouo Che Pad" (the main newspaper of Canton) informed its readers in an article dated 20 June 1909. together with a further 15 special maps of the same islands and 10 photographs. Lapique added that nothing further happened until 1920. this administrative incorporation was not totally devoid of practical consequences. which occasionally visited the various islands and archipelagos. since it was issued by a government which was recognized neither by the central Government of China nor by foreign States. Yet it would have done well to study the expedition attentively. It decided to ignore the order. not least for the purpose of teaching our Navy's hydrographic service the techniques which allowed the Paracels to be explored and a general map produced within the space of 36 hours. were it even informed. was not overly concerned by this display. This was done in the name of the military government controlling the south. and visited some of them.

The acts of 1909. In March 1932. A commission was set up. Jian Zhou. even doing so via a national company. On the eve of the War the Chinese position was explicit. The documents were summarized in a report reasserting the Chinese claims to the islands and presenting ambitious projects to exploit them. which inspected the Paracels and submitted documents. which handed China a previously prepared Note in which the French Government asserted its rights and offered to take the matter to arbitration. 280. Annex 14.38 Some Chinese authors state that China subsequently continued to award licences to mine or otherwise exploit the islands. should China not recognize these rights. effective. marked an interest which did indeed exist but these acts were not sufficient to constitute a long. China then based its claim on the fact that Vietnam had been its vassal before the colonial period. continuous occupation. rights which would allow China to supplant Vietnam. op.39 d) Renewed Chinese interest in the Paracels (1928) It was from 1928 onwards that Chinese interest in the Paracels again became active. p. on the grounds of effective authority. probably as a result of the Chinese domestic situation. peaceful. they dated Chinese interest in the territories as being recent.102 Chapter III The French Government kept a particularly close eye on the matter because some Chinese newspapers attacked the merchant. since time immemorial. However. plus a few concessions and an apparently symbolic administrative attachment. Therefore China did not fulfil the conditions required to create a situation (comparable to the Island of Palmas case) in which it would have acquired. . cit. the Chinese put the rights to mine guano in the Paracels up for public auction in Canton. claiming that he was no more than a figurehead for Japanese interests. all the more so in that other interests showed their hand.. and demanding that the concession be revoked. The situation on the eve of World War II was as follows: the Chinese acts of 1895-1896 (refusal to accept liability for shipwrecks in the Paracels on the grounds that the islands were not attached to China). They were carried out by a government which had no place in the continuity of the Chinese State. In a 38 39 See letter of 6 October 1921 from the official in charge of the French Consulate in Canton to the Foreign Ministry. the projects came to naught. and 1909 (exploration and salvoes fired to proclaim sovereignty) weakened all the other assertions that the Chinese occupation had lasted thousands of years. Over the entire period (1884-1939) the acts advanced by China concerned the Paracels alone. This prompted a protest by France.

an unequivocal French claim emerged. However. The hesitations of France At the beginning of the colonial period in Indochina. with the aim of preventing another power from establishing a presence in the islands. It was not aware of Annam's former rights and its concern was solely to prevent others from controlling the islands and thus constituting a threat to the gateway to its colony of Indochina.Subsequent Development of the Title 103 Note dated 18 July 1938. Mr Chabrier. diplomatic correspondence revealed on the part of various French authorities a genuine ignorance of the former rights of Annam. France's actual conduct in the archipelagos bore little relation to an assertion of sovereignty (sporadic acts. based for the Paracels on succession to the rights of Annam and for the Spratlys on the principle of discovery. and a somewhat passive attitude towards China's claims. then Minister in Peking. it did not actually express the intention to act as sovereign. This claim was made official by a solemn taking of possession and by a genuine administrative organization. It cannot be said that colonial France lacked interest in the archipelagos. On the advice of Mr Michon. Moreover. The attitude of France from taking possession of Indochina until World War II The French attitude needs to be analysed over two different periods of time. Until the late 1920s. There was never any clear mention of the Spratlys. A journalist. from the late 1920s onwards. The Ministry of the Colonies and the Government General of Indochina envisaged sovereignty over the Paracels as early as 1898. a) The first period of colonization. France showed very little interest in the archipelagos. Mr Doumer replied (in June 1899) that Mr Chabrier's venture had no chance of success but that. deliberate but not taken to completion. it might be opportune to build a lighthouse in the archipelago in order to assert our sovereignty. However. revealing the intention to explore and survey rather than to possess). the Embassy of China in Paris publicly asserted the Chinese rights to the Paracels. For a long time France's interest was very remote. . had declared his intention of establishing in the Paracels stores to sell provisions to fishermen.

or more precisely the Paracels. Yet was it specific enough to be categorized as the intention to act as sovereign? For some time. However. Lapique even described the seizure by a French ship of a Japanese vessel loading phosphates at Woody Island.104 Chapter III This was not done. since the construction of a lighthouse appeared to be more useful for navigators at Cape Parella than in the Paracels. director of the Oceanographic Service of Indochina.40 whose information confirms a certain French presence. Lastly. diplomatic correspondence up to the late 1920s (and other archive documents) reveals that France had not made up its mind in respect of the archipelagos. French naval cruisers used to visit the archipelagos at the request of the Consuls of France in Hainan. The interest expressed in the form of these various activities was real. According to this author.A. whenever the wives or children of the Annamese fishermen were captured by the Chinese 'to be sold'. in his view. it would perhaps be preferable.e. and the author concluded that the Japanese had behaved correctly towards the French authorities. A Note of 4 May 1909 from the French Consulate in Canton (i. Moreover. in 1925 Mr Krempf. and had not disregarded their rights to the Paracels. munitions or opium were being stored on the islands.A. This was related by P. after the Chinese expedition to the Paracels) stated: Mr Beauvais contends that France would have as many rights to the islands as China and that it would be easy for us to find arguments to support our claims. They also intervened when information was received that arms. . Thus a French naval police service of a sort did operate. P.. should the game not be worth the candle. Over the same period. the Spratlys being rarely mentioned. the French Navy was regularly present in the archipelagos in the form of tours by cruisers belonging to the Indochinese customs service.9. French intentions were shrouded in uncertainty. surveyed the archipelago. However. to turn a blind eye to what is now happening. Lapique. p. cit. the Japanese captain claimed to have the permission of the Commander of the Navy in Saigon. since an intervention on our part might lead to a fresh wave of nationalist 40 Op.

On 20 September 1920. and did not know how solid such rights had been. France showed a very marked lack of interest at the time. The press having reported the absence of any claim on the part of France. Japan was concerned about France's possible rights. mentioned supra. the Commander of the Navy in Saigon stated: There is no paper in the official documents of the Navy allowing the nationality of the Paracel Islands to be determined. asking whether the Paracels were a French possession. A minor commotion was created by an incident reported by P.Subsequent Development of the Title 105 feeling in the population. All correspondence exchanged on that occasion. but this assertion is based solely on my personal memories and I cannot provide you with any conclusive document in support of this. at that date. In that initial phase. Since a gap of 12 years had elapsed between Mr Beauvais' opinion and the Note in question. expressed in slightly different terms by various authorities. Recalling the opinion of Mr Beauvais. As can be seen.41 This opinion was to persist until the late 1920s. revealed France's hesitations. aware that he had no authority to speak. I believe that I can assure you that they are not a French possession. France might well be a 'candidate' for sovereignty over the Paracels but not at the price of too sharp a deterioration in its relations with China. more damaging to us than the possession of the Paracel Islands would be useful. . dating from the 1920s. the Commander of the Navy. Lapique. it stated: My Ministry agreed with Mr Beauvais and we allowed the Chinese to do as they pleased. The application proves that. Overall. When China announced that the Paracels had been administratively incor- 41 See Annex 13. cited supra. Nevertheless. France did not pose as successor to the rights of Annam. This was made very clear in a Note from the Foreign Ministry. and positions began to be contradictory. the Ministry of the Colonies was alerted and requested further information from the Foreign Ministry. In his reply. acted with caution. a Japanese company wishing to mine phosphates on Woody Island applied to the Commander of the Navy in Saigon.A. it was unsure of its rights.

44 The Governor added: It would seem that France has never voiced any claim to these islands. cit. which belong more logically to the Indonesian archipelago than to the Indochinese peninsula. questioned whether the islands (the Spratlys) were indeed 42 43 44 45 46 See note of 6 May 1921 from the General Government of Indochina. it might have been feasible to discuss with France the status of the Spratlys.4 3 in a letter to the Foreign Minister dated 25 October 1921. It can even be seen that some political authorities did not rule out negotiating the abandonment of all French rights in exchange for other French interests in China.45 A Note of 8 March 1928 similarly states: The islands in question belong neither politically nor geographically to the coastline of Annam.) contends that. to request a formal commitment from the sovereign Government never to set up a military or naval base there and to install no facilities to that end. a letter dated 24 December 1927 from Governor General Pasquier to the Minister for the Colonies reported the interest shown by the Japanese in certain islands. in view of the absence of a 'Chinese Government'. in exchange for official recognition that the Paracels are Chinese. Annex 16.S. Paris debated whether it was necessary to protest against the incorporation and to declare the islands a French possession. Annex 12. All the above relates to the Paracels alone. . Samuels (op. addressed to the Under-Dircctorate . M. France's Charge d'Affaires in China referred to the difficulty there might be in negotiating with China at that time. As for the Spratlys.42 However. It would perhaps not be excessive. which at the time Japan considered to be a matter between itself and China.for Asia and Oceania. See Annex 17. negotiating the abandonment of its rights meant recognizing that it had rights.46 A further Note of 26 November 1928.106 Chapter III porated into Hainan. Annex 18. but not that of the Paracels. Yet from 1922 onwards a degree of concern surfaced at the idea that complaisance towards China might eventually serve Japanese ends. for the Japanese. Quoted as the view of the Governor General of Indochina in a letter of 18 April 1921 from the Minister for the Colonies.

. it gave the impression of waiting for a propitious moment to recall its rights and then to negotiate them. writing to the Minister for the Colonies on 17 December 1928 and denouncing 'the ever-increasing megalomania of Chinese nationalism'. they also show that France never officially recognized China's rights and hesitated to develop its own rights owing to the climate of nationalist feeling in China. However. . half-hearted attitude being the act of the colonial power.Although it was not active in the archipelagos. Rather. b) The second period of colonization (until World War II). Such acts as it did carry out were unassertive and sporadic. What legal conclusions may be drawn from this period (from initial colonization until the late 1920s)? . therefore reduced to silence. in the correspondence analysed.Subsequent Development of the Title 107 terra nullius and repeated that no decision had yet been taken as to French sovereignty over the Paracels. which sought to work the Paracels. cited supra. it was not completely absent from them either.' 48 Seeking to buttress the French position. the Governor General asked the Chief Resident in Annam for full information. Annex 20. The clear and official assertion of French sovereignty over both archipelagos Finding himself obliged to reply to the New Phosphates Company of Tonkin. which the Resident supplied in the letter dated 22 January 1929. nevertheless it had never officially recognized Chinese sovereignty. Annex 8. not the initial holder of title to sovereignty.France had not clearly asserted its sovereignty. clearly stated: 'It is therefore time for us to take the initiative and to assert rights which appear to be recognized both in historical documents and by geographical realities. the Governor General of Indochina. The Resident recalled the rights which Annam had 47 48 49 Annex 19. .49 This document is extremely important.47 Various letters or notes exchanged in 1929 between the Resident in Annam and the Chief Resident in Tonkin show that the status of the Paracels remained obscure for these senior officials. and it may be asked whether they were actually a genuine factor in maintaining and consolidating effective occupation.This hesitant. All the more so in that France took no steps legally to renounce its rights in favour of some other sovereignty. did not entail any interruption of the rights previously acquired by a people which was dominated at the time.

he wrote as follows. then noted that Annam's coastal fishermen (at the time he wrote) no longer visited the islands.51 Of all the authorities involved. he sent a telegram which advocated maintaining the attitude adopted in 1921. Mr de Monzie. stating: Annam however possesses historical rights over this group of uninhabited islands which are much less open to question than those which Nationalist China might claim. However. to the Paracels seem to have been beyond dispute since the 17th century. Our proteges. he referred to information which had reached him. . Pasquier (Governor General of Indochina) was the slowest to understand both Annam's ancient rights and the interest the Paracels represented for France. Annex 22. in November the same year. even through the colonial system derived from the protectorate. The Resident deplored the passive attitude of France faced with the Chinese claim of 1909. The French Foreign Minister formally noted (in a letter of 26 February 1929) that there appeared to have been a reversal of the French position adopted in 1921. and requested further information. Thus. the few people who had occasion to speak on behalf of Vietnam did so in terms which revealed the continued intention to act as sovereign. On 3 April 1929. therefore. appearing to remember the status of protectorate initially granted and with it the possible and necessary expression of the views of the interested parties. Paris knew less about the situation than some local authorities. and therefore of France.108 Chapter III long asserted and maintained. appear not to have asserted their ownership of the Paracels for many years. there is no dispute on this score'. wrote to the Minister for the Colonies: The rights of Annam. Even so.52 However. Writing to the Foreign Minister on 18 February 1929. a French Senator. Annex 23. the Minister for the Navy (standing in for the Minister for the Colonies) still urged a waiting game. former Minister for War who died in 1925. and 50 51 52 Annex 21.50 As is often the case. did affirm in a letter of 3 March of that year that 'the islands still belong to Annam. although His Majesty Than-Trong-Hue.

He relied on the study by P." Thenceforth. Peking. 150 miles away). Moreover. Official telegram of 4 July 1931. He became convinced of the validity of Annam's rights. It was confused. yet. 53 54 55 56 Telegram of 14 March 1930. Had the sovereignty plainly acquired by Annam been lost since it had not been exercised? The author concluded that it was not so. See Annex 26. The Representative of France in China remarked that there had therefore been a return to the former view and noted the long absence of any protest by France against Chinese actions. all French documents reflected the clarification of the situation.56 A further telegram of 19 July 1931 from the French Foreign Ministry revealed further hesitation. stating that the Paracels had not been abandoned and therefore had not become res nullius. Annex 27. the confusion springing from the names used for the islands (the Chinese referred to another archipelago. 28 July 1930. his fears concerning China still prompted him to advocate a waiting game. However. Pasquier studied the whole case. The Ministry of the Colonies then urged Pasquier to explain his reticence. Annam had possessed rights since the 18th century. Finally. China had endeavoured to assert its rights only since 1909. Yet it could not be said that at that precise time Annam's rights had been extinguished. a Note was addressed to the Legation of China. finally asked the correct legal question.A. on 4 February 1932. . the reply relied on the Sino-French Treaty of 1887. as expounded supra. The French position was therefore to have the 'appearance of a simple exercise of preexisting sovereign rights '.Subsequent Development of the Title 109 the islands would be an excellent place to install a radio station to provide advance warning of typhoons. and his correspondence in March 1930 reflected the shift in his views. China's reply was dated 29 September 1932. Lapique. Annex 25. signed Knobe! and dated 19 June 1930. asserting France's rights. France did not rule out being obliged to recognize Chinese sovereignty.54 Governor Pasquier's letter dated 18 October 1930 put an end to France's hesitations. but offering to take the matter to arbitration should China reject these rights. the Treaty is irrelevant in this case.53 A Note from the Quai d'Orsay. Annex 24.

issued by the Governor General of Indochina on 15 June 1938. created a delegation (administrative unit) covering the Paracels. However. Nowhere in the case is there any trace of any Chinese claim whatsoever to the Spratlys throughout the colonial period. France at last asserted its rights over the Paracels in unequivocal terms.60 This reflected the doubt which persisted in the Governor's mind. p. one covering the Crescent group of islands. This spurred the French colonial administration into action. 182. The Spratlys were a simpler matter. France appears not to have adopted the same attitude for the two archipelagos. there was no 'use of force' against the Chinese.59 All the correspondence analysed supra relates to the Paracels.57 What is certain is that an initial decree (n° 156-SC). It explains the gap between the intention to act as sovereign and actual administrative occupation. the other the Amphitrites.110 Chapter III Towards the end of this period. Annex 29.. Japan. 306. The latter happened gradually. and incorporated them into the province of Thua Thien (Annam).58 The inhospitable nature of the islets must be borne in mind. did express an interest in 1929 in the form of an inquiry made by its Consul General in Hanoi.. Jian Zhou. since there was nothing that might be characterized as a Chinese occupation. In March 1929. Not until 1938 was there was a permanent military presence. Governor Pasquier saw no objection. Some authors maintain that it did so formally in March 1925. They were supposed to reside on Pattle Island and Woody Island respectively. op. . cit. The Consul replied on 22 March 1929 that the Philippines had shown no interest.61 57 58 59 60 See Jean-Pierre Ferrier. The officials heading the delegations were given the title of Delegates of the Resident of France in Thua Thien. contrary to the contentions of some Chinese authors. however. op. an application having been submitted to mine guano. See Annex 28. cit. adding however the rider: Permit issued at the risks and perils of the parties concerned should this group of islands be validly claimed by some other power. The French Foreign Minister asked the Consul of France in Manila about any claims the Philippines might have. p. and that a second decree of 5 May 1939 signed by Jules Brevie created two administrative delegations.

notably a letter from the French Ministry of Defence to the French Foreign Ministry. In view of the fact that. There was even an explicit lack of interest referred to by the Acting 61 62 63 'La poussee nippone vers 1'Ouest. indicate that it was indeed France's intention to extend its occupation to the entire archipelago. Annex 31. Krautheimer. The only protest against this assertion of sovereignty was lodged by Japan. however scattered they may be. It was announced in the Official Gazette of 26 July 1933. Occupation des Spratleys' (1939) Revue des troupes coloniales. albeit after quite a long period of hesitation. the French authorities manifested their intention to act as sovereign over both archipelagos.63 Thus. signed a decree incorporating these islets into the province of Ba Ria. these fragments of land form a geographical unit. For the Paracels. the fate of the main part may determine that of the remainder. Were rights established for States other than China or France? There are two cases that need to be examined. though they will not detain us for long. taking effective possession of them. the theory of the unity of legal status is applicable here . On 21 December the same year. before World War II. A formal ceremony of occupation was held in April 1933. at p.62 Does this mean that France had asserted its sovereignty only over the specifically mentioned parts of the archipelago. He contended that when a group of islands forms a unit. 463. China remained silent. sovereignty was manifested on the basis of a situation of terra nullius. and that in the years concerned (1930-1933) there were no other acts of taking possession.all the more so in that archive documents. Mr J. this took the form of an assertion of the continuity of the rights of Annam.Subsequen t Development of the Title 111 A communique of 23 September 1930 notified third States that France had occupied the Spratlys. leaving the status of the remaining islands and islets open? Here we come to a point of legal theory defended notably by the arbitrator Max Huber in his Island of Palmas Award. Letter of 30 March 1932 from the Minister for Defence to the Foreign Minister. . These are the cases of Japan and Great Britain. For the Spratlys. a) Japan There was no Japanese claim prior to the months leading up to World War II. the Governor General of Cochin China. Six islets were mentioned in the text and precisely described. Annex 30.

'Abandonment of Territorial Claims. in any case. VII. 10 August 1940.64 Talks were held between Japan and France in Paris in August 1934. but World War II was then looming on the horizon. noting that certain islets had apparently been occupied by British subjects in 1877 with the consent of Her Majesty's Consul General in Borneo. Formosan militia led by Japanese officers set up a camp on the islands. Japan made a move towards the islands.112 Chapter III Governor-General of Indochina in a letter dated 25 December 1927 to the Minister for the Colonies. Indeed. the British Consul General in Saigon informed the Foreign Office. in the course of its rise to military power in the late 1930s. there had been no subsequent consolidation. Annex 32. See Ministry of Foreign Affairs Note. no abandonment can be discerned in legal terms. Leune in Mer et Colonies. the cases of Bouvet and Spratly Islands' (1986) 2 British Yearbook of International Law. Geoffrey Marston.65 However. Yet Great Britain decided not to assert any rights. considering that the acts actually performed by the British subjects were too slender a basis to have constituted an 'inchoate title' and that. confirming Japan's renunciation of its claims. this was more lust for power than legal argument.66 However. he mentioned that the Consul General of Japan had told him that the Paracels were of no interest to the Japanese Government. . in the last decade (before the War). The Imperial Japanese Government annexed the islands by decree in 1937 and attached them to the administrative district of Formosa. France protested. Same correspondence. b) Great Britain When in 1930 France began to indicate its intention to assert its sovereignty over the Spratlys. Yet the long period of French uncertainty or 64 65 66 67 Quoted by J.67 What can be said on the date when this period ends (1939)? Everything turns upon two interrelated matters with a legal dimension: were the rights acquired by Annam before the protectorate abandoned under the French administration? Was their abandonment greater in the case of the Spratlys than in that of the Paracels? Did this abandonment lead to the creation of a title for another power such as China or Japan? On the first point. The Japanese army occupied the Spratlys in 1939 and the Paracels a little later. Voluminous diplomatic correspondence was exchanged on the matter and legal experts were consulted. In this letter. August-September 1938. This is why this case has been examined by authors under the heading: abandonment of territorial claims. there was even an affirmation or reaffirmation of France's rights. Under the pretext of mining guano.

The fact that the maps of Indochina printed by France throughout this whole period do not include the archipelagos must also be interpreted. the legal force of other elements of the case needs to be weighed up. By entrusting Gauthier with this mission. international law held that. by creating a right for a third State. that exercise became completely official.. on that date (1937). those relating to typhoons. . this title was still valid. emerged from this period less strongly asserted. as two additional remarks support the conclusion that. in 1939. which could not be imputed to it. in other words the Governor-General.. True. the text of the report reveals. these authorities. Furthermore. his ignorance of the ancient links between these islands and Vietnam and for him the archipelago is not under French jurisdiction. since by virtue of well-established case-law (arbitration in the Island of Palmas or Temple of Preah Vihear cases). do not go as far as the Paracels or mention them without any indication of sovereignty. which was nevertheless ultimately reclaimed by France. from start to finish.68 It is easy to see why. clearly had the exercise of French sovereignty in mind. When it finally regained independence. This administrative report is not binding on the official authorities. That power did not perform the act of abandonment which. maps have no official value. French uncertainties were long-standing. Hence. the Vietnamese people had no cause to adopt such reticence or ignorance. By the time of the Decree of 15 June 1938 administratively attaching the Paracels to Indochina. An example is a report by Chief Engineer Gauthier dated 26 November 1937 at Haiphong. All the available maps drawn up during this period.Subsequent Development of the Title 113 hesitation put the Vietnamese title on ice as it were and there must be a question mark over its vitality after thawing out. It gives an account of a civilian mission aimed at displaying France's interest in the Paracels. None of them provides the slightest pointer. yet it remained keenly aware of its interests. The colonial power was ignorant. prudent to excess. in disputes regarding sovereignty between States. 68 These are the maps indicated in the general bibliography at the end of this book. they did not create a favourable climate for producing maps in support of an assertion of French sovereignty.. made abandonment irreversible. Yet it cannot possibly be said that it was destroyed. the title. The decrees of the recent period are essential. held by the colonial power. at that time no-one even considered the cartographic argument. or Chinese jurisdiction either for that matter. Apart from the diplomatic correspondence. more particularly the aeronautical and climatic maps..

which had been in cold storage much longer. And just as French hesitation over the Paracels could not destroy the ancient rights of Vietnam. Could it therefore be asserted that the subsidiary case follows the principal one? This is certainly the current Vietnamese view. the moment of decolonization that is.114 Chapter III Confronted by the difficult. has been tightened in the 20th century. The nature of the locations concerned must . Hence. was paralysed as a result of the colonial period and the administration of the islands was very sporadic. the continuity of the right of France and of the right of precolonial Annam is genuine where the Paracels are concerned. or undisputed. However. during the colonial period. China's acts were neither sufficiently clear and continuous. France announced in unequivocal terms that it had taken possession of six islets. were stronger by virtue of the fact that. chaotic yet genuine maintenance of this title. So much so that. However. This rule. so the attitude of France in regarding the Spratlys as res nullius before settling there could not completely efface the previous title if it was well established. It took possession of these islands as it would of a terra nullius. The exercise of the previous title. For China did not make any specific claim to the Spratlys throughout this whole period. and despite this context. Yet for this archipelago it remained an open question. France did not invoke the same link. they were not challenged by the claims of another State. when the time came. circumstantial and lacking any legal basis. the problems of the two archipelagos differed since the French rights over the Spratlys. Did this amount to abandonment of the rights of Annam. as in the case of the Paracels. a belated show of interest by the Philippines and nothing else. was slow off the mark and unsuccessful. and only as regards the Paracels. constructed patiently and at such length. while lacking the patina of age and considered to be rights asserted over terra nullius. the only true rival power. China. to constitute a right. the question of Vietnam's succession to the title acquired by France could be raised without the hindrance of rival claims and even without necessarily being joined to the more ancient title of the emperors of Annam. that is. even though established late in the day. which was still valid until the close of the 19th century. always assuming those rights were genuine? Respect for the right of peoples militates against this. Did this also mean possession of the whole archipelago? The other claims in this period were weak. And the Japanese claim was a late one. In 1933. Where the Spratlys are concerned. The occupation must be effective and must correspond to an overall administration.

There are also.Subsequent Developmen t of the Title 115 therefore be investigated to find out whether it is indeed the principal islets which have been acquired. the Government of the People's Republic of China. and the Associated State of Vietnam. as this situation was dominated by the presence of the French Expeditionary Force and a French administration (until 1954-1956). despite having no 69 70 Chapter I. certain elements from the Philippines. . with the result that this acquisition would also include the other islands as well. a highly complex one in legal terms. Chapter III. Sometimes. Different troops succeeded one another there or shared the occupation of the archipelagos even though this was not always asserted as an intentional act of sovereignty. these are simply facts of war. These elements involve Japan (though it would very soon be completely expelled from the region). the two elements . which obtained in Vietnam in the immediate post-war years.material or intentional constituting the maintenance of the rights need to be identified. they involve France. Where Vietnam is concerned. it is logical to lump these years together with the colonial history and to analyse them so as to include an examination of French positions. In this confused period. after 1949. He also occupied the Spratlys. An examination of the situation in more recent periods will show how far this approach goes. The Japanese army was present until the capitulation of Tokyo and would not leave the two archipelagos until 1946. which he would appear to have done in November 1946. End of the colonial period (after World War II) The chronology of events69 and the discussion devoted to the question of the succession of States or of governments70 have highlighted the situation. Where China is concerned. the Government of the Democratic Republic of Vietnam. they involve the Government of Nationalist China and. This Treaty authorized Chiang Kai-shek to occupy the Paracels. as we shall see. The material elements The disorder created by the end of World War II was reflected in the material situation in the archipelagos. The Treaty of Chung-King of 28 February 1946 had given the Chinese troops responsibility for disarming the Japanese soldiers north of the 16th parallel. However.

Annex 36. Annex 33.73 In March the same year China re-established a foothold on Woody Island and protested against the French military presence. In April 1950. See telegram of 25 January 1951. to the Bao Dai Government.76 On 5 May 1949. the Ministry of the Interior of the then Chinese Government published an atlas in which China included the archipelagos. Annex 35. In July 1949. or rather. in 1947. See report of 29 January 1947. 249 and 254. The French Ministry of Foreign Affairs. But contrary to the assertions of certain Chinese authors. this is not to say that China possessed 'historical' rights over the islands. 249). as this inclusion was of late date and associated with particular circumstances. Nationalist Chinese troops were evacuated from Woody Island only to be replaced by troops from the People's Republic of China. in December the same year. of the Paracels. in the wake of the 71 72 73 74 75 See Pierre Bernard Lafont. General Juin recommended the reoccupation of the Paracels in order to consolidate. See this letter dated 7 October 1946 to the President of the Committee on Indochina. The presence of Communist Chinese troops in the Paracels in 1951 and in the following years has not been confirmed. our position in the legal debat.71 In support of this presence is the fact that. the Chinese reiterated the administrative attachment of the Paracels to Hainan Island. Yet it was not until 1956 that the administration of South Vietnam. France and China decided to open talks.116 Chapter III mandate to do so from the Allies. Telegram of 8 March 1947. In May 1946. 10 Europeans and 17 natives). op. a French military mission arrived on Pattle Island. the French Navy requested instructions and reported that one of the Spratly Islands (Itu Aba) was occupied both by a detachment from Communist China and by a detachment from Nationalist China.. France landed a French infantry unit from the Savorgnan de Brazza on certain islands. In October 1950. See documents of 31 May and 3 June 1947.74 The political situation worsened just as. March 1947. cit. as he put it. France once again indicated its desire to refer the case to the International Court of Justice. In late 1946. pp.75 The French were still present on Pattle Island (2 officers. at the diplomatic level. but it remained there for only a few months.72 In early January 1947. the French Government officially handed over control of the archipelagos. 76 . Annex 37. Pierre Bernard Lafont suggests the date of 7 January 1947 (p. there being no effective presence in the Spratlys. Annex 34.

the People's Republic of China occupied the other part of the archipelago from which it never withdrew. scarcely any facts can be derived pointing to a sovereign administration of the archipelagos. that the two Chinas were present much more fleetingly in the Spratlys. Also the same year (1956). that France was somewhat guarded with respect to the occupation of the Spratlys.' 77 That included both the Paracets and the Spratlys. and the ensuing months.Subsequent Development of the Title 117 withdrawal of the French Expeditionary Force from Indochina. on behalf of Annam. intentions are decisive. the French High Commissioner in Saigon indicated to the naval attache that France controlled the Paracels and that every ship planning to 77 Note of 6 September 1946. Annex 38. presence was always maintained in the Paracels or rather on one island in that archipelago. Even after the Agreements of 6 March 1946. that the Philippines then displayed interest in the Spratlys or at least certain islets in that archipelago. the South Vietnamese Navy occupied some of the Spratly Islands and set up a boundary-marker there indicating sovereignty. first made unilaterally. to assert its rights in the wider world. The same year. while still retaining an interest in them even though they were occupied by the Vietnamese from 1956 onwards. However. subsequently formed the subject of multilateral debate on the occasion of international declarations or agreements. that Nationalist then Communist China was present in part of the Paracels until 1950 then again from 1956 onwards. However. what is recognized is: that a (partial) French. in a period of political and military confusion such as the one under consideration here. The multi-faceted element of intention The claims of sovereignty. From this confused period. They must therefore be scrupulously examined. In a telegram of August 1946. which is that of the first war of Indochina (1945-1954). . and subsequently South Vietnamese. it was considered that 'It is for France. took over the French garrison on Pattle Island (Paracels). The Government in Paris maintained its rights and reaffirmed them on every occasion. a) France The diplomatic correspondence enlightens us as to French intentions in this period.

referred to a secret letter of agreement of 15 March 1949 addressed to Emperor Bao Dai. and a further example was the Australian Government which said it was prepared. An example was Great Britain which turned to France in 1948 with a request for permission to use Lincoln Island for military exercises. apparently recognized Vietnam's sovereignty over the Paracels though remained silent on the Spratlys. Annex 42. to back up the claims of the French Union. negotiations on the Paracels were held in Paris because holding them in Nanking was impossible owing to the intransigence of Chinese public opinion.80 In 1947. Letoumeau. General Jacquot.. French Commissioner General in Indochina.. though the People's Republic of China took over the Chinese claims on its own behalf 78 79 80 See letter from J.81 This was Nationalist China. It was not to resurface after that date even though France never explicitly abandoned the Spratlys. on the occasion of the drafting of the peace treaty with Japan. Annex 39. the Chinese took a very hard line and made the evacuation of Pattle Island by the French detachment a precondition of pursuing the talks. Annex 40. 7 May 1951. Annex 41. Official letter dated 29 April 1949 from the Special Delegate of Wai Kiao Pou. in which the High Commissioner. In the negotiations. On 16 June 1955. the French Ministry of Foreign Affairs even sought to assert that the Spratlys could not be Vietnamese. which would appear to have pulled out in May 1950.79 The French position during this period was recognized and supported by other countries. commenting on the Agreements of 8 March 1949. 81 . b) China The intentions of the Chinese were also very clear as regards the Paracels.118 Chapter III put into port there must request authorization to do so from the High Commissioner. Later on (from 1951 to 1955).78 This argument was reiterated in a Note from the Department for Asia-Oceania of 11 July 1955. These talks were unproductive but were an opportunity for France to reaffirm its rights and to propose that they be put to arbitration. See letter of 16 June 1955 from General Jacquot. See Note dated 15 May 1950 from the Directorate for Asia-Oceania. Any passage by a French vessel was challenged and protests were sent to the French Consul in Canton. The Paracels were the subject of negotiations with (Nationalist) China from February to July 1947. that their attachment to Cochin China had been purely administrative and that these (French) islands were now to come under the French Department of Overseas Territories.

'Les traites de paix du Japon' (1960) Annuaire Francais de Droii International at pp. c) Vietnam During this period. such as Manchuria. . author of the telegram. 256 et seq. Formosa and the Pescadores. there has been an abundance of intentions to act as sovereign forming the highly complex fabric of this case. published on 1 December 1945. As we see. the Philippines joined the fray in 1950 regarding part of the Spratlys at least. And Mr Pignon. The French authorities indicated this in a telegram dated 23 April 1949 to the Ministry of Foreign Affairs. is there any room for a little objectivity in a case dominated by tension between the subjective opinions of States? Japanese desires with regard to the archipelagos.82 This underscores the long-standing nature of Vietnamese intentions. to restore to the Chinese Republic all the territories. in which it was stated that a lecture by Bao Dai's directeur de cabinet had provoked an incident on the subject of the Paracels. Annex 43. e) Multilateral declarations or agreements In the multilateral context. stating that they would not tolerate occupation of the islands by any hostile force. were destroyed by the Japanese defeat and subsequent disarmament. through the Cairo Declaration of 1943. already expressed before the War and exemplified by the Japanese military occupation. Even before the end of the War. since the end of World War II. which the Japanese had stolen from the Chinese and to expel Japan from all the other territories it had seized by force.83 82 83 Telegram of 23 April 1949. d) The Philippines Lastly. Lazar Focsaneanu. not only for the Paracels but the Spratlys as well. China and the United Kingdom: Announced that they proposed to divest Japan of all the Pacific islands captured or occupied since the beginning of the First World War.Subsequent Development of the Title 119 and asserted them in no uncertain terms. the representatives of the Vietnamese people reaffirmed the sovereignty of Vietnam. the heads of government of the United States. explained that he had been obliged to give an assurance that the High Commissioner 'considered the Paracels to be a crown dependency of Annam' and that he would support the Vietnamese in this dispute.

on several occasions. by a Declaration of 15 August 1951. whose number included France. It cannot have been fortuitous. titles and claims to a number of territories. However. Laos and Cambodia. According to D. D. the archipelagos concerned here do not form part of the territories 'stolen' from China which the three Governments together proposed to restore to it. 'The Status of Formosa and the Chinese Recognition Problem' (1956) American Journal of International Law at pp.P. unable as it was politically to assert its uncertain claims before the States assembled there. a partner which had never recognized China's rights over the islands and had even. the peace treaty with Japan was to be drawn up. four solutions were considered:85 a condominium over the abandoned territories of all the States at war with Japan. the former recognizing only Nationalist China and the latter having recognized the People's Republic of China. Formosa or the Pescadores. the United States of America and the United Kingdom were the host powers at the San Francisco Conference.84 The Treaty was signed on 8 September 1951 between Japan and 48 Allied Powers. admittedly not from within the Conference since it had not been invited to attend. O'Connell. Now. . The People's Republic of China protested. the Spratlys and Paracels among them. where the talks lasted several days. proposed to China that the matter be referred to the International Court of Justice. The repercussions of this for the archipelagos in the South China Sea were extremely important.120 Chapter III The Spratlys and Paracels clearly form part of the other territories. Some years later. China itself was party to the Declaration. China's interest in these islands at that time was therefore not decisive. The omission of the archipelagos from this part of the 1943 Cairo Declaration is remarkable. The absence of attribution was to generate much comment and lead to various theories. the Treaty did not effect any devolution of these territories. O'Connell. The Cairo plan was to expel Japan from them. China had been obliged to remain silent on this point.P. Japan renounced all rights. In 1951. But unlike Manchuria. It was decided not to invite either of the Chinese Governments to attend. in other words. including the Associated States of Vietnam. There was neither reservation nor separate declaration by China regarding these territories. following a French recommendation. 405 el seq. Under Article 2 of the Treaty. Fifty-five States were invited. Marshal Chiang Kai-shek having been present in person in Cairo. joint sovereignty to be acquired solely by the States parties to the peace 84 85 Owing to the disagreement between the United States and Great Britain. At all events.

Japan returned the Nansha Islands. Hence. this solution lacked any legal basis. formally took note of Japan's renunciation of all rights to the islands. However. Yet this amendment was rejected on that occasion by 46 of the countries present. the historical depth and acquired validity of the claims of each party could be carefully examined. the public declarations and silences or reservations which followed or accompanied these declarations. However.China's Indisputable Legal Case'. 'The Petropolitics of the Nansha Islands . 'Who Owns the Paracels and Spratlys? An Evaluation of the Nature and Legal Basis of the Conflicting Territorial Claims' (1989-1990) 9 Chinese Yearbook at p. cit. return to the status of terra nutlius by derelictio (this was the position put forward by Maurice Faure in the French Assembly during the debate on ratification). While San Francisco was not a particularly favourable context for a successful outcome to the Chinese claim.. And in that process of investigation. Only Poland and Czechoslovakia supported the USSR. which it had occupied during the war. (Pan Shiying. p. absent from San Francisco). The title. were so clearly established prior to the Japanese occupation that. and the rivalry in the maintenance of the title.87 In reality. Pan Shiying writes: 'At the end of World War II. to the Chinese Government. At the request of Mr Gromyko (the USSR being present in San Francisco). It is difficult therefore to agree with the authors who assert that this text implied recognition by Japan of Chinese sovereignty over these islands. but did not have any claim of its own included in this (bilateral) treaty. It envisaged the recognition by Japan of the sovereignty of the People's Republic of China over a series of territories including the Paracels and the Spratlys. concluding a peace treaty of its own with Japan on 28 April 1952. including. 257-258 or Steven Kuan-Tsyh Yu. pp. No one in the international community challenged or protested against China's resuming its sovereignty and ownership of the Nansha Islands'. the conditions in which the cessation of hostilities with Japan was effected require detailed examination. a 86 87 Unaware of this fact. It should be noted that the latter solution would have led to the division of the Paracels between France and China and to the attribution of the Spratlys to France if anything. bilateral negotiations were much more so. an amendment was tabled at the plenary meeting of 5 September 1951. appropriation by the occupants of these territories after Japan's departure.86 The (Nationalist) Republic of China. and above all. 128). 12.Subsequent Development of the Title 121 treaty (which excluded China. There are two errors here: Japan actually returned the islands. all elements count. the text only mentions Japan's renunciation and does not put forward any proposals with respect to devolution. op. once that episode was over. And the international community refused to accept the Chinese claim. Jian Zhou. . but without their being assigned to China.

These two elements. and rejected by the Conference on 5 September with the Soviet amendment. as we have seen. the very terms of the (individual or collective) peace treaties with Japan. did not make any claim to the archipelagos on the occasion of the Cairo Declaration and bilaterally recognized Japan's renunciation without putting forward a claim of its own. Did that claim have any basis since the surviving predecessor State (the Republic of China) had. made on 15 August 1951. warrant the conclusion that at that time the Republic of China ceased asserting rights to the disputed islands. when France quit Indochina? Leaving aside the claim to the Spratlys by the Philippines. a claim which barely surfaces. the People's Republic of China for its part. Consequently. France left behind the hesitations of the early colonial period. Minister for Foreign Affairs. In the Paracels it did so in a clear . it will be seen that. through its silence. had no basis and the San Francisco Conference and surrounding events weakened the position of China which. However. which is a context of breakdown. that 'the Paracels and the Spratlys have always been Chinese territories'. which after 1949 took over the mantle of continuity from the former single Chinese Government. which hesitations may well have weakened its title. had always been expressed as challenging Vietnam's previous positions and exercising the balance of power. It actually administered the two archipelagos until the Japanese occupation. Chou En-lai's claim. How then is one to sum up the situation in 1954/56. this does not settle the question of the claim reiterated loud and clear by the representatives of the People's Republic of China very soon after they had seized power. over this long period (1884-1954/56). the declarations made in them or from which these treaties stem.122 Chapter III rigorous argument based on the general rules for the interpretation of treaties leads to the opposite conclusion that the text's silence on this point leaves the question of the future status of the archipelagos completely open. However. the Franco-Vietnamese positions on the one hand and the Chinese positions on the other fluctuated. True. in connection with the draft peace treaty with Japan. stated on 15 August 1951. though to varying degrees. signify that Nationalist China. the latter having all the solemnity of treaty instruments and the former substantial political force. speaking through Mr Chou en-Lai. renounced its rights? Could it be argued that it had renounced them in favour of the People's Republic of China? This is not plausible in the context of relations between the two States.

Since the War. it maintained both its presence and its claim until. they added that neither did they belong to Annam either. it left (South) Vietnam to take over where France left off. . and in the Spratlys as the occupant of a terra nullius. combined with the French presence (after the period of hesitation). 1921 and 1932).89 It would therefore be difficult to find any trace of genuine Chinese acquiescence in the Franco-Vietnamese title. China has shown great tenacity. The abandonment by Nationalist China (by omitting to put forward a claim in the peace treaty with Japan) might be considered as a position dictated by political circumstances. Chinese interest in the Paracels has been persistent. it was understood that the rights of the two parties would be reserved. it nevertheless did so repeatedly (1909. Before the War. cit. this intention. However. in the commentary on the San Francisco Treaty (or certain Ministry of Foreign Affairs Notes). In the situation which France gradually found itself facing as the World War gave way to the War in Indochina. Annex 38. This desire. Despite certain weaknesses. provides support for the maintenance of the title in favour of Vietnam. And so they must remain. while China may have made its opinion known sporadically. unless drawing on documents not yet published. since in 1938. It did not do so through the mouthpiece of the local mandarins in 1896.88 Throughout this whole period. Nor did China do so later. However. its tone was ambiguous. 68. Legal Department Note. or in 1951 (the representative of the Associated State of Vietnam in San Francisco). where the idea was mooted that France might wish to keep the archipelagos for itself.Subsequent Development of the Title 123 (though belated) affirmation of succession to the rights of Annam. when they spoke. their position was always the same. the representatives of Vietnam were not able to speak as a State. not for Vietnam. when France occupied the archipelagos. which would give further credence to the idea of the succession of one China to the other. 88 89 See M.. whether in 1925 (the former Minister for War to the Emperor). op. the Chinese case is not totally devoid of content. For China never indicated any acquiescence in the Annamese or French claim. Where these islands are concerned. for although making it clear that the islands were not Chinese. p. through its departure. The archipelagos had long been Vietnamese. 6 September 1946. Samuels. in 1949 (Bao Dai's directeur de cabinet).

It now remains to consider the fate of the archipelagos during recent decades. and in particular 1937. THE POST-COLONIAL PERIOD In 1956 French troops left the region. It has been seen above that. The first possibility is to opt for the 1880s. It must also be acknowledged that the Chinese claim. it must be acknowledged that the post-war years confused matters a great deal. The country was split into two States as a result of the Geneva Agreements.124 Chapter III It is here that the notion of the critical date comes back into its own. the conditions in which it was exercised were problematic. Taiwan has since been largely absent from the whole issue (not totally so in the case of the Spratlys). The years 1956-1975 were those of the second Vietnam war. They comprised two very different parts.e. However. However. two other critical dates selected from the period under consideration can be suggested. on these dates. as well as the assertion that nothing which happened later can be taken into consideration if it breached a long-established right acquired by the people. Each of these three 'critical dates' opens up a perspective which appears favourable to the Vietnamese argument. although the Franco-Vietnamese title was not destroyed. The 1930s. although originally unfounded (i. in 1909) and greatly weakened by the San Francisco Conference. Lastly. France still possessed a title superior to that of China over both archipelagos (for different reasons). and France no longer made any claim to the Paracels on its own behalf. without however maintaining an effective French presence. may be considered as another point in the crystallization of the dispute. in that. . even if unlawfully established through the use of force and therefore unable to produce any legal effects. must be seen together with the duration of the Chinese presence in the islands. A strong conception of the right of peoples to self-determination and of respect for the territorial integrity of peoples under colonial domination prompts a choice of 1884 as the critical date. It still claimed the Spratlys. when France first proposed to China to go to arbitration. the years 1954/56 (chosen as the critical date by Jean-Pierre Ferrier) were decisive by virtue of the reappearance of the Vietnamese people on the international stage (even though speaking through two States). The history of Vietnam has been tumultuous and the four decades 19561995 cannot be analysed as a single period. Of the two Chinas (for there are still two Chinese States).

which received the name 90 The Vietnamese documents contain reports that as early as 1959 China had attempted to land on the western part of the archipelago. April 1988). However. It was recalled supra how the troops of the Government of Saigon took over from the departing French troops. or at least some islands. Our analysis must first consider the actual situation in the territory of the archipelagos. China seized the western Paracels following violent clashes.90 In 1956 Saigon's troops also occupied the Spratlys. The period of the division of Vietnam (1956-1975) Over these 19 years. The South. included the archipelagos. The superpowers were involved. A Filipino expedition landed 29 men on one island. They replaced the French troops in the part of the Paracels not occupied by the Chinese. the situation in Vietnam was once again one of war. Tomas Cloma. After 1975. its two halves at war with each other. . where a boundary-marker denoting Vietnamese sovereignty was erected. However the landing was repelled by the South Vietnamese forces and 82 Chinese were captured (see The Hoang Sa and Truong Sa Archipelagos and International Law. However. below the 17th parallel. with soldiers disguised as fishermen. the year of victory and of Vietnamese reunification.Subsequent Development of the Title 125 The attitude of both South and North must be examined. or the State of Vietnam. matters are more simple. along with any contradictions between them. the United States waged war and supported the 'Saigon administration'. and the Amphitrite group by those of the People's Republic of China. and from then on the whole of the Paracels was under its military control. In January 1974. The country was torn asunder. Foreign Ministry of the Socialist Republic of Vietnam. The material elements The Geneva Agreements of 1954 effectively divided Vietnam. claimed to have occupied the entire Spratlys archipelago (in a private capacity). in the South there was also a Provisional Revolutionary Government. so that between 1956 and 1974 the Crescent group of islands was occupied by South Vietnamese troops. the PRG. China and the USSR supported the Republic in the north. then pinpoint the declarations indicative of intention. in March 1956 a Filipino citizen.

Paris. between 1956 and 1975. 22. which prevents the administration having legal effects. however.91 Since then the Philippines have gradually extended their occupation. (1988) Novelles sinologiques. J. It is a military occupation. The situation was different in each archipelago. a) The displays of intention of the People's Republic of China Since Chou en-Lai's speech of 1951. China. the Spratlys were occupied in part by three States. It would appear that 1971 was rather the date of a military reinforcement of the Taiwanese presence. 830. does not accept this argument and reiterates its intention. occupying three islands in 1968 and subsequently a further three which were then fortified. In order to evaluate the rights of each party.R. which is not recognized in international law if there is a previous titleholder. The intention is strongly expressed in the case of the Paracels and is accompanied by a de facto occupation. at p. however.V. albeit one constructed on the basis of an occupation carried out under illegal conditions.94 This is clearly the mark of an effective administration.92 Thus. Taiwan occupied Itu Aba Island on a date which varies depending on the author consulted. Prescott gives the date as 1956. 122. but as the date of the Filipino protest against the occupation by Nationalist China. the facts must. The elements of intention Several governments then expressed the intention to act as sovereign. Seep. Charles Rousseau mentions 1971.126 Chapter III Freedomland. .93 the People's Republic of China has steadfastly reiterated its intention to act as sovereign. China also claims that in March 1959 the administrative prefecture of Hainan set up an office on one of the islands in the Paracels to deal with matters in the Xisha-Nansha-Zhongsha Islands. 91 92 93 94 See Charles Rousseau (1972) Revue Generate de Droit International Public. be seen in the light of intentions. at p. The partial occupation of 1956 was extended to the whole of the archipelago in 1974. Taiwan having been present since 1956. ‘which in March 1969 was reportedly renamed the Revolutionary Committee of the Xisha-ZhongshaNansha of Kwangtung Province'. claiming to have retaken islands which have belonged to it since time immemorial.

issued by the Ministry of the Interior of South Vietnam. However. the Government of the Republic of Vietnam protested to the United Nations. the Chinese also make their intention plain. The territorial partition at the 17th parallel placed both archipelagos in South Vietnam's zone. a divided Vietnam voiced its claims in a manner which may appear contradictory. and a further decree of 21 October 1969 merged Dinh Hai and Hoa Long. this time with Malaysia. published a policy document on the archipelagos and forcefully condemned the unlawful acts of the People's Republic of China. Meanwhile the Saigon administration lodged protests against China's conduct on several occasions. in January 1974. The Saigon administration took advantage of the second session of the Third United Nations Conference on the Law of the Sea. Various decrees were issued concerning the administration of the islands and their incorporation into Vietnam's territorial organization. Nationalist China.Subsequent Development of the Title 127 In the case of the Spratlys. held in Caracas in June 1974. It was therefore for the Saigon administration. to reiterate its rights to both archipelagos. Phuoc Tuy Province. the Saigon . b) Vietnam's manifestations of intention During the war years. following the taking of the Paracels by Chinese forces. A further protest was lodged on 20 April 1971. they were incorporated into the municipality of Phuoc Hai. We could draw the line here and say that there is sufficient detail to prove that the intention to act as sovereign is maintained on the part of Vietnam. The Journal d'Extreme-Orient of 4 June 1956 reported that the Vietnamese Secretary of State for Foreign Affairs had lodged a protest against a declaration concerning the islands made by the spokesman of the Chinese Foreign Minister on 29 May of the same year. maintains its claims on the basis of an actual presence. The Government of South Vietnam never abandoned its unequivocal intention of maintaining its sovereign rights to the two archipelagos. The extension to the Nansha Islands of the administrative office set up in 1959 was the result of a fiction. China cannot base its claim on any true occupation or administration. The Spratlys were incorporated into Phuoc Tuy Province on 22 October 1956. and on this occasion Vietnamese sovereignty over the two archipelagos was reasserted by South Vietnam's Foreign Ministry. A decree concerning the Paracels was issued on 13 July 1961 (creation of the administrative unit of Dinh Hai). Under a decree of 6 September 1973. Lastly. The description of the islands by people who have visited them leaves no room for doubt on this subject. on the other hand. in the district of Dat Do.

to voice its claims to the islands.95 Thus both the Governments which claimed to represent South Vietnam (and which therefore had territorial responsibility for the administration of the archipelagos) had a common attitude on this point. since. the Xisha Islands and the Nansha Islands. the Deputy Minister for Foreign Affairs of the Democratic Republic of Vietnam. The Western press presented matters differently. 95 96 The protest was mentioned in an article published in Nhan Dan on 26 February 1988. and was summarized in the feature 'The Hoang Sa and Truong Sa archipelagos (Paracels and Spratlys)' (1984) Le Courrier du Vietnam. There remains the Government of the Democratic Republic of Vietnam. reportedly asserted: According to the documents available to Vietnam. the Provisional Revolutionary Government finding it difficult to condemn China. it did so as the successor to the former rights of France over the two archipelagos. since China uses that attitude as an argument. Hanoi. according to him. on the basis of the historical evidence. advancing three facts in support of this. form part of Chinese territory. China claims that this Government renounced sovereignty. In fact the disagreement concerned the method rather than the substance of the dispute. the attitude adopted by the other Vietnamese Governments deserves close scrutiny. to the rights enjoyed by precolonial Vietnam.96 On 15 June 1956. Moreover. The Provisional Revolutionary Government of the Republic of South Vietnam (PRG) adopted a position in 1974 which recognized the existence of a dispute. since an article in Le Monde dated 27-28 January 1974 stated: In Paris. It did so. recalling that Sovereignty and territorial integrity are sacred issues for all peoples' and calling for negotiation. France having itself assumed the succession. the delegate of the PRG to the conference held at La Celle St-Cloud dismissed Saigon's proposal for the adoption of a joint resolution condemning 'the violent occupation of the Paracels by China'. receiving the acting Charge d'Affaires of the Chinese Embassy in Vietnam.128 Chapter III administration alone. 139. at least in the case of the Paracels. this type of dispute must be settled by negotiation. However. at p. which had hitherto been its political ally in the Vietnam War. . For example in a brochure entitled: 'Documents and Other Materials concerning the Recognition by the Vietnamese Government that the Xisha and Nansha Islands are Chinese Territory'.

the stipulation regarding the breadth of the Chinese territorial sea as being 12 nautical miles will be scrupulously respected. referring to Chinese airspace 'above the Paracels' aggravated the situation. So it is incorrect to assert that Vietnam had also 'reaffirmed its recognition of China's claim' to 97 (1988) 8 Nouvelles sinologiques at p. To assess these events. Prime Minister in the Government of the Democratic Republic of Vietnam. the declaration referred to a statement of 14 September 1958 by Pham Van Dong.97 Lastly. Previously. this statement cannot be seen as a legally valid pronouncement. on 4 September. were specifically included. in the event of contact at sea with the People's Republic of China.Subsequent Development of the Title 129 Has this comment been confirmed? Was it purely verbal or was there a written record of it? As these questions remain unanswered. The Government of the Democratic Republic of Vietnam respects that decision and will instruct its responsible national bodies that. It was indicated that this involved mainland China and all the islands belonging to China. China had publicized the fact that it was extending the breadth of its territorial sea to 12 nautical miles. Articles published by the daily Nhan Dan in 1969 and 1970. 30. . two facts need to be taken into account: the precise significance of the North Vietnamese attitude and North Vietnam's place among the partners concerned. It is true that Phan Van Dong's declaration confines itself strictly to recognition of the breadth of the Chinese territorial sea. North Vietnam is said to have denounced the fact that this zone included: A portion of Chinese territorial waters contiguous to the Xisha Islands which belong to the People's Republic of China. China also relies on a declaration by the Government of the Democratic Republic of Vietnam dated 9 May 1965 and relating to the combat zone of the American armed forces. the Paracels and Spratlys among them. The Note by Pham Van Dong states: We would solemnly inform you that the Government of the Democratic Republic of Vietnam recognizes and approves the declaration made on 4 September 1958 by the Government of the People's Republic of China regarding the decision taken with respect to China's territorial sea.

The political allies of the Hanoi Government in South Vietnam were represented by the Provisional Revolutionary Government of the Republic of South Vietnam. Thomas. 415. all the more so as it is backed up by the declaration relating to the combat zones and the articles in Nhan Dan. in International Boundaries and Boundary Conflict Resolution. statements or pronouncements by the North Vietnamese authorities had no bearing on the title of sovereignty. c) The other manifestations of intention There are few traces of the intentions of the Government of Taiwan. This was not the government with territorial jurisdiction over the archipelagos. International law cannot draw any conclusions from this as regards continuity of the legal title. p.130 Chapter III the archipelagos. which alone has jurisdiction from the geographical standpoint. One cannot abandon something one has no authority over. for the common military cause. Furthermore. the Government of the Democratic Republic of Vietnam exercised its power only north of the 17th parallel. is an example of the sort of provisional territorial arrangements found in other war situations. any declarations. these facts were situated in the very special political and military context of the events then unfolding. 1989. This partition left the administration of the archipelagos under the control of the South Vietnamese Government. Nothing they did suggests that they went back on their desire not to interrupt the thread of Vietnamese sovereignty over the islands. friendly territories or territories which were quite simply unable to put up any opposition. The territorial logic reinforces succession to the rights and actions of South Vietnam. its silence on the affirmation of Chinese sovereignty over the islands can be interpreted as acquiescence. engaged as it was in an all-out struggle against American might. one party or another made use of neighbouring territories. For reasons due to circumstances. that Government had always been attentive to the question of Vietnamese sovereignty over the archipelagos and was to continue to be so until it ceased to exist in 1975.98 Nevertheless. Admittedly. . In this context. The now reunified Vietnam (through the victory of the North) must decide to which entity it is successor on this point. As we have seen. 98 Bradford L. The fact that. The fact nevertheless remains that this particular moment in the history of the partition of Vietnam blurs the Vietnamese position. this was a government entirely in the hands of its allies. "The Spratly Islands Imbroglio: A Tangled Web of Conflict'.

The infrastructures in the Paracels have been substantially developed by the Chinese People's Army. 100-per-cent occupation by China. The position of the Philippines fluctuated somewhat as regards its intentions. op. and also the many fiimsily argued claims of the two Chinas and the Philippines. In the Spratlys. All these States.99 And the strengthening of the fortifications on Itu Aba was accompanied in 1971 by talks with the Government of the Philippines in which each party reasserted its claims. The islands have been under military occupation by the People's Republic of China. The first manifestation of sovereignty by this State (over the Spratlys) was in 1951. in March 1988. though it has never formally abandoned its rights over the Spratlys. strongly maintained claims by South Vietnam and an attitude of the Democratic Republic of Vietnam obscured by the events of the war. but at the same time was in talks on this subject with Nationalist China. Since that date. the 99 100 See Charles Rousseau. a naval incident led to the loss of Vietnamese vessels and the deaths of a large number of Vietnamese sailors. a persistent and very clear Vietnamese claim by the Saigon Government in continuity with the French taking of possession. the eastern part since 1956 and the western part since 1974. The return to a reunified Vietnam after the 1975 victory The years after 1975 were to bring few changes to the Paracels. with the exception of the People's Republic of China. Lastly. the Philippines stepped up their military presence on seven of the islands in the archipelago. occupy some small islands. sought to invoke its rights. Le Monde. the Taiwanese Government. In 1977. China dispatched troops to certain cays in the Spratlys.100 Malaysia occupied certain atolls in September 1983.. faced with the claims of the Philippines to the Spratlys. cit. . So in 1975 the situation was as follows: In the Paracels. In the Spratlys. France has remained silent since 1956. Yet 20 years later. pp. Vietnamese forces took over from the detachments of the previous Saigon administration on the islands it had occupied. after April 1975. the Government of the Philippines not only occupied several islands while stating that it had no territorial claim to this archipelago. 830 el seq. 12 May 1978.Subsequent Development of the Title 131 In 1956 however.

the decree of 6 September 1973 by the Ministry of the Interior of the Republic of Vietnam.132 Chapter III Chinese Navy has maintained its presence in the archipelago. This it has done in various ways. communiques or declarations. Its attitude is not merely to claim the protruding lands as such. Vietnam is entitled to claim for its own exclusive use. . France having effectively occupied the two archipelagos. pp. 181 et seq. 1996). in particular at the Conference of the 101 102 See Frederic Lasserre. the publication of official reports or other heavily documented works. then certain islets in the Spratlys in 1988. under the terms of the Convention. The claims. the decision of 9 December 1982 by the Council of Ministers of the Socialist Republic of Vietnam. and 11 August 1980 or declarations in the framework of certain international organizations. political declarations on the occasion of international meetings. have become more widespread. but also to stake its continued claim to the whole of the South China Sea in the name of historical rights. but above all in 1974. The basis of these rights is not indicated. Late on the scene. The use of force by China to occupy the Paracels in 1956. and this despite China's accession to the Convention on the Law of the Sea. Some of these were administrative instruments attaching islands to certain provinces: the decree of 13 July 1961 by Ngo Dinh Diem. Vietnam is extremely vigilant in pursuing its assertion of sovereignty over the two archipelagos in their entirety. 7 August 1979.102 The Philippines have developed their claims to part of the Spratlys. protests against acts of the People's Republic of China. Taiwan persists in its claims. then of France on behalf of Vietnam under colonial rule. The Vietnamese Government seems to be at great pains not to allow this to become abandonment through the absence of signs of intent. President of the Republic of Vietnam.101 China's oil policy clearly shows this. Itu Aba.. consisting as it does in granting concessions to American oil companies for maritime areas situated in zones which. Le Dragon et la mer. however. 5 February 1980. meant that Vietnam lost the factual element of its claim. This claim is part and parcel of the context of the continuity of the rights of the ancient Empire of Annam. Strategies geopolitiques chinoises en Mer de Chine du Sud (Montreal. such as those of 30 December 1978. through acts. China maintains its claims to both archipelagos and seizes every opportunity to recall its historical rights and to reaffirm its sovereignty. See 'Drawn to Fray' (1997) Far Eastern Economic Review (3 April). Malaysia claims to have a few rights. Harmattan Inc. Others included acts relating to the maritime territory. It is therefore anxious to multiply such signs and wastes no opportunity to recall its rights. Taiwan maintains a garrison on the largest of the Spratlys. Nationalist China or any other State concerning the archipelagos.

as things stand. which undoubtedly crystallized earlier. the dispute. During this period. five are rivals for the Spratlys. two States are rivals for the Paracels and. Hence. leads each party steadfastly to act in such a way as to maintain and improve its position. . France aside.Subsequent Development of the Title 133 World Meteorological Organization in 1975 at Colombo and at the 7th session of the Meteorological Conference of Region II (Asia) at Geneva in June 1980.

The case of the Paracels As regards the Paracels. In this respect. only two States are concerned: Vietnam and China. the period after World War II. In this book. We will now see what the result of this is by posing the following two questions: What picture can be given of the rights of each of the parties concerned? What prospects does contemporary international law offer for settling a dispute of such complexity? SUBSTANCE OF RIGHTS TO THE ARCHIPELAGOS The facts illuminated through the various historical phases considered above confirm that the cases of the Paracels and the Spratlys must be dealt with separately. The rights of Vietnam are ancient and well founded even if China's claims assumed more concrete form through its occupation by force of part of the archipelago 39 years ago and of the rest 21 years ago. This redressing of the balance as regards the sources consulted shows the case in a different light. there is a considerable imbalance in favour of the Chinese argument. Older historical data have generally been mentioned simply by reviewing documents drawn up by the States concerned or published by their national research centres. which is the best publicized. an effort has been made to take stock of the arguments expounded by the various States concerned and also to verify the historical arguments of the past using documentation in the French National School of Far Eastern Studies and French archives from the colonial period. The bulk of the works hitherto published on this subject have made use of verifiable data from the most recent past.Chapter IV Conclusions and Bases for a Settlement of the Dispute Almost three centuries of history have set their stamp on the legal status of these archipelagos. .

from actions which might breach their inalienable rights. they were not such as to affect the conclusion that Vietnam has a title superior to China's. While the Vietnamese title may have been weakened by the indifference of the colonial power during the early decades of colonization. from a certain point. The only hesitations on this score were after the second Vietnamese war. the representatives of Vietnam. after the departure of the French. and even these were only made possible by lack of effective opposition from the colonial power. 1921. Vietnam's vassalage with respect to China. and. there were in all only three occasions when China expressed a desire to exercise its rights over the Paracels (1909. During the first half of the 20th century. The period of World War II and the following years created circumstances propitious to a (military) change of hands in the uninhabited islands on a number of occasions. 1932). terminated with China's consent on the advent of France. particularly when they have fallen under the hegemony of another power. occupied the islands as far as political circumstances permitted them to do and never ceased to assert their rights.136 Chapter IV The detailed examination of the historical titles attempted in the preceding pages. and simultaneously with them. The thrust of the whole corpus of the law of decolonization built up under the aegis of the United Nations has been to protect peoples. Nationalist China abandoned the assertion of its rights. The claim of the People's Republic of China which emerged in 1951 has the appearance neither of the assertion of a title taken over from an earlier period nor of a . in certain statements by the representatives of the Democratic Republic of Vietnam. could on no account leave China with any rights to the islands. based on the most reliable documents. the representatives of Vietnam alone. The arguments put forward so far by China do not make it possible to confirm the existence of ancient legal ties between Imperial China and these territories such that they could be interpreted nowadays as ties of sovereignty. The French authorities. France effectively administered the Paracels and clearly asserted its rights. This claim was asserted in the face of a Vietnamese title established two centuries earlier. it does not amount to effective abandonment since. shows that the Vietnamese title has been clearly asserted since the beginning of the 18th century. By its silence in the Cairo Declaration or in its bilateral peace treaty with Japan. China's interest in these uninhabited lands only amounts to a claim of sovereignty after 1909. Although these can be explained by the circumstances and by the extreme dependence of that Government on China.

. It asserted its rights as first occupant and not as the successor of Annam. The People's Republic of China began to speak of a claim to the Spratlys in 1951. 'Le conflit de limites entre le Bresil et la Grande-Bretagne' (1904) Revue generate de droit international public at p. the French attitude has not been the same for the two archipelagos. which abandoned all claim). Hence it can be said of the Chinese attitude between 1951 and 1988 that 'the mere fact of challenging territorial sovereignty does not create a title for 1 Paul Fauchille. which must be accompanied by the intention to abandon it. linked as it is to Taiwan's relief of the islands from Japanese troops after the War (although Taiwan was not authorized to take such action).1 The case of the Spratlys The situation of the Spratlys is quite different from that of the Paracels. Liberated by the absence of any Chinese claim to the islands further away. there remains an occupation by force in 1956 and another in 1974. France. so that French rights were very soundly established. however. was less hesitant about manifesting its presence than in the Paracels. 138. The claim of the Philippines was not voiced until the 1970s. The second resides in Vietnam's reiterated declarations of protest against this unlawful occupation with a view to preserving its ancient rights. Yet there are two obstacles to the transformation of this occupation into a title. But this was an abstract claim. Malaysia's claim is of more recent date. even if there are traces of the subdivision of the maritime companies on the basis of different geographical areas. In its favour. Whatever the pre-colonial situation may have been.Conclusions and Bases for a Settlement 137 right derived from effective administration. But it was not challenged by anyone (not even by Great Britain. Not until very recently (1988) were there the beginnings of partial occupation. devoid of any trace of effective occupation of these islands remote from Chinese territory. Irrefutable proof of the two archipelagos being treated as one in the administration of the emperors of Annam is hard to find. as the result of military action. during the colonial period. since: Possession of a territory does not cease solely by virtue of the disappearance of its material manifestation. The first lies in the contemporary peremptory norm of the prohibition of the use of force against the territorial integrity of a State. Taiwan's claim is highly opportunistic.

451. particularly in the Assembly of the French Union in 1952. And the succession of the rights must be restored. Two hypotheses need to be considered regarding Vietnam's contemporary claim. be regarded as heralding a desire to abandon the islands? And is that desire confirmed by France's diplomatic silence on this matter? Or. the French title was accompanied by concrete occupation which ceased only to be succeeded by the Vietnamese occupation in 1956. where the Spratlys are concerned. on the contrary. If the evidence of the administration of the islands by the emperors of Annam is adequate. the French argument that it 'discovered' the archipelago raises a different set of problems. cannot Vietnam be regarded as successor to the rights established by France..3 on the basis both of the Vietnamese occupation hard on the heels of the independence of South Vietnam and also of the fact that France had administratively attached the islands to Cochin China? And that therefore the islands could but share the fate of the territory to which they were attached? However. that sovereignty can only be terminated if expressly abandoned.138 Chapter IV the State adopting this attitude'. op. can the debates. if Vietnam's ancient rights to the Spratlys are challenged. Whatever its origin. The decree of 21 December 1933 attached the islets to one of the provinces of Cochin China: Ba Ria. cit. if the Franco-Vietnamese title. On the other hand. Despite their confusion. must it be accepted that the case regarding the Spratlys will not be definitively settled unless France once again makes its views known? Supposing France were definitively removed from this case. the problem nevertheless remains of the immense area of this archipelago (160. proves the most ancient and soundly based. For in that case. one can but call to mind the strong prohibition of the occupation of territories by force in contemporary international law. France's position has never been totally clarified.000 square kilometres). p.2 As for the armed occupation. True.for instance on 2 3 Suzanne Bastid. However. Taiwan and the Philippines then also established a foothold in the archipelago. of its relative unity and of the effective extent of the occupation by the various States claiming title. does it apply to all the lands? Is there room for other partial occupations which took place at a later date. it was through ignorance of Vietnamese history that France claimed to occupy this archipelago as terra nullius. . but which might nevertheless have engendered rights . on the basis of one argument or another. Vietnam does have a title to the Spratlys which has the same validity as its title to the Paracels. The French argument being that of sovereignty as first occupant.

4 See Michael Bennett. for the Spratlys. has prevented the Security Council from taking any initiative in this field. arbitration. enquiry. to which the various parties involved in this dispute are signatories. Yet it is impossible to overlook the fact that the Security Council largely lacks the objectivity required of a decision-making organ.4 PROSPECTS FOR A SETTLEMENT International law requires States to negotiate. mediation. the Charter does provide. for the abstention of any member involved in a dispute. paragraph 3. when Vietnam attempted to bring the matter before the Council. particularly in 1988. . the continuance of which is likely to endanger the maintenance of international peace and security. but there remains the considerable political might of the Great Powers. resort to regional agencies or arrangements. in Article 27. shall. Negotiations do not therefore depend on mediation by third parries and will only be possible bilaterally for the Paracels. On the other hand. and. where these shards of land lie just off the coasts of other States such as the Philippines or Malaysia? A purely legal answer to this question is difficult. call upon the parties to settle their dispute by such means. when it deems necessary. 448. 'The People's Republic of China and the Use of International Law in the Spratly Islands Dispute' (1991-1992) Stanford Journal of International Law at p. a permanent member. first of all. multilaterally between the States concerned. On this point. The parties to any dispute. the People's Republic of China even overlooks its deep-seated antagonism to Taiwan and endorses the claims of the rival Chinese Government. it is easy to see that China's claim to the Spratlys has no legal basis and is just one aspect of a maritime expansion policy. Negotiations would depend on a genuine will to negotiate. True. This is the meaning of Article 33 of the Charter. conciliation. The Security Council shall.Conclusions and Bases for a Settlement 139 the periphery of this vast set of islands. judicial settlement. Hence China. seek a solution by negotiation. owing to the special place given to permanent members armed with the right of veto. or other peaceful means of their own choice.

117-118. The option offered to States on the pretext of scrupulously respecting their sovereignty. may favour such negotiations. On this point. 5 See the declaration by the Philippines. the sovereignty of States impedes any significant advance in international law and in its role in peace between nations. two or more States agree between themselves to bring a dispute before the Court (the terms of the dispute being defined by the parties themselves). In the case of the Paracels. There remains a second possibility of bringing the matter before the Court (or any other international tribunal which States might wish to approach).140 Chapter IV True. Of all the partners involved. particularly with Vietnam's recent entry into ASEAN (1995). The current circumstances hardly favour such a solution. Vietnam is the one which appears to be the most tempted by a judicial settlement. Such a tribunal does however exist. renders international law crude and imperfect. Under this. The other States do not agree. namely a special agreement. However. China has a judge at the Court. the development and reinforcement of regional organizations. between States which have accepted in advance the compulsory jurisdiction clause.5 It is not therefore possible for one of the States concerned to bring the matter before the Court by means of a unilateral application. China maintains that there is nothing to negotiate. nor Vietnam. in the institution of the International Court of Justice. and to benefit from the Court's jurisdiction on that basis. the judicial organ of the United Nations. In the case of the Spratlys. backing this up by an emphatic claim to sovereignty. . namely of refusing to submit their conflicts with other States to a tribunal. bilateral or multilateral diplomatic meetings since 1988 have prompted China to develop the idea of reserving the issue of sovereignty and negotiating a formula which would allow the States concerned jointly to develop the wealth of the area. This is regrettable. Yet in the present state of affairs the prospect of settling the dispute on a negotiated basis is almost nil. access to the International Court of Justice is voluntary. which is a general way of recognizing the jurisdiction of the judicial organ of the United Nations. but have thus reached an impasse. In a host of documents China has stated loud and clear that it has irrefutable evidence of its ancient historical rights to the archipelagos. Neither China. at pp. The Philippines recognized the jurisdiction of the Court in 1972. but with reservations which exclude the present dispute. nor Malaysia have signed this clause. (1993-1994) Yearbook of the International Court of Justice. Therefore it does not reject the principle of the existence of such a court. since true law can hardly exist without conflicts being justiciable. It holds the archipelago by military force.

In the case of the Spratlys.Conclusions and Bases for a Settlement 141 What has it to fear in expounding its arguments before a broad court such as the one in The Hague? Granted. something which might be achieved under various arrangements. It is a compromise solution. are more certain. Keeping the Paracels by force without clarifying these questions means fuelling a future source of discord comparable. a condominium would be a bulwark against the threat of regional imperialism by a single power. One solution would be to create a condominium. to the Falklands. even if the extent and scope of such titles are uncertain. by applying for permission to intervene. a legal regime established by treaty. whereas the current. since only Vietnam and France have acquired true historical titles to the archipelago. unpublished documents at its disposal. a special agreement between any two of the five contenders (six if we count Brunei) would be most likely be a powerful factor triggering general proceedings for a settlement. all other things being equal. under which several States would jointly exercise over a single territory the powers normally exercised by a single State. . By reducing political tension. expounding legal arguments under the spotlight of judicial proceedings would be a factor of peace. on the basis of events since French colonization. being more clearly established on the basis of the available documents. how that title has been maintained. In the case of the Spratlys. Whatever solution is found will require a genuine effort of imagination and co-operation by both the parties and the judges. Power would be shared. particularly its rights to the Paracels. there again. embodying international collaboration restricted to the management of a single space. The Court's task would not be easy. highly unstable situation is pregnant with menace. they would also become party to the proceedings so that they could set out their rights and seek to protect them. the judicial disputatio would enable the judges to establish. If China has further. the case of the Spratlys as a whole would be brought before the Court. These risks are great in the South China Sea owing to the growing strength of the Chinese Navy. this study has shown that Vietnam's rights. This would place the other claimant States in an embarrassing situation: either they would run the risk of the islands' fate being settled by the Court without them and perhaps to their disadvantage. Were this to happen. or. what does it have to fear in submitting them to the Court? If nothing in its history has created a title in its favour more solid than that constructed by the Emperors of Annam.

at p.7 whereby States would share exploration rights in delimited zones. n°4. New York: Oxford University Press. South-East Asian Seas: Oil under Troubled Waters. managing the resources of the sea or seabed which. (Oxford. The road leading to a solution is 6 7 8 For the Chinese claim on this point. based on the main islands under their control. 544. . They thus suggest a formula for sharing development rights between the States of the region. The agency would be financed by contributions from the States parties to the condominium. 124 et seq. and the speed of change. The crucial point would be fixing States' respective shares in the agency. Sharing the Resources of the South China Sea (Martinus Nijhoff. p. The same authors endorse the Chinese proposal for joint development of the area. alongside the barely submerged shoals and banks which pose such a threat to navigation and which geological movement might push clear of the water at some time in the future. The future will belong to solutions which take account of interdependence.142 Chapter IV A condominium over the Spratlys might take the form of an agreement between all States concerned to create an international joint development agency with a twofold objective: securing the safety of navigation in the region by maintaining buoys and lighthouses. 1983). Jon van Dyke & Noel Ludwig. in order to rescue States from the impasse into which their rivalries have led them. cit. vol. Mark J. leaving settlement of the question of sovereignty in abeyance. see Jonathan I. 1997). such shares controlling their contribution of the budget but also their share of the profits. This would lead to the award of mining and fisheries concessions. It will not be easy to determine the shares of the various parties. Charney.8 These various solutions and the very fact of entrusting the framing of such solutions to the international Court of Justice may appear Utopian at present. The agency would redistribute the profits to the States parties. 'Central East Asian Maritime Boundaries and the Law of the Sea' (1995) American Journal of International Law. it may perhaps soon appear imperative. see Zhou. totally disregarding previously acquired titles. 729. but with the unrest facing the world. pp. some authors have suggested sectors as a solution. 89. See Mark Valencia. since there are not only true islands but also tiny slivers of land scattered over a large maritime area.6 In an endeavour to overcome this real difficulty. Sovereignty would be jointly managed by the group of States having concluded the agreement governing the condominium.. op. Valencia. enabling it to operate. under the Convention on the Law of the Sea. For an analysis which insists in taking legal titles into account. belong to the holder of title to sovereignty over land above sea level.

This is why China's current political position.Conclusions and Bases for a Settlement 143 negotiation in good faith. whilst reserving the question of sovereignty. It is hoped that this book has helped to shed some light on it. . reflecting as it clearly does the hegemonic claim that might is right. need all their natural resources. the proposal jointly to develop the wealth of the archipelago. The resources of the sea are decisive. This indicates how important the question of sovereignty over the Paracels and Spratlys is. Yet there can be no delimitation unless the question of sovereignty is settled first. Their peaceful exploitation requires the delimitation of maritime spaces. embarking impatiently and eagerly on the journey to long-awaited economic growth. not the option of superior force. The peoples of the region. is unacceptable to the partners.

republished 1969.Annam-Tonkin. C. Commentaire du reglement de la Cour Internationale de Justice. Oxford: Clarendon Press. Le droit international public positif. Paris: Complexe. Paris: Pedone. Foumiau. 2 volumes. G. Bastid. and Vignes. 1985. Guyomar.. D. Traite du nouveau droit de la mer. 1991-1993. Combacau. S. Geopolitique de l'Extreme-Orient.. 360 etseq. M. 107 (1962).Bibliography GENERAL TEXTS Apollis. Chaumont. and Sur. J. Cavare. Bedjaoui. Brussels: Economica-Bruylant. Greenfield. G. C. Paris: Pedone. 129. L'emprise maritime de l'Etat cotier. 1992. P. Paris: Montchrestien.. Histoire des relations de la Chine avec l'Annam. S. Paris: L'Harmattan. . R. vol.. 1981. Joyaux. RCADI (Recueildes Cours de l'Academie de Droit International. Paris: Pedone. 1993. L. RCADI (Recueil des Cours de l'Academie de Droit International). Droit international public. 1961. Bilan et perspectives.. 1991..Vietnam. Dupuy.. Devillers. 339 et seq. (ed. RJ.) Droit international. 1983. 'Les problemes territoriaux dans la jurisprudence de la Cour Internationale de Justice'. 1988. China's Practice in the Law of the Sea. Paris.. J. vol. 1885-1896. Paris: Gallimard/Julliard. Paris: 1880. Paris-Saigon-Hanoi -Les archives de la guerre 1944-1947. UNESCO. 'Cours general de droit international public'.. (1970). Paris: Pedone. 1989. Deveria.

M.. 'Iran's Claim to the Sovereignty of Bahrain'. Annuaire Francais de Droit International (1985).les homines.. Paris: L. 1979. Briscoe. Daillier. Combacau. London. Publications of the University Institute of Higher International Studies of Geneva. thesis at the Institut d'Etudes Politiques. 448 et seq.G. L. . Une longue histoire. A. Droit de la mer. Cohen-Jonathan. Xing Qu. A. 20 et seq.. Quelques problemes de succession d'Etats concernant le Vietnam. 115. H. 1959.A.R. Nguyen Khac Vien. 'Les iles Falkland (Malouines)'.. G. Geneva: thesis No. Hanoi: Foreign Language Publications. Annuaire Francais de Droit International (1972) 235 etseq. La mer et son droit. Thierry. 1997.. Les relations franco-chinoises de 1949 a 1955.D. M. Paris. vol. Sir G. 'The Law and Procedure of the International Court of Justice'.G. Possession contestee et souverainete territoriale. Fitzmaurice. Sur S.. Droit international public. Nguyen Quoc Dinh. Lucchini.F. ARTICLES BY LEGAL COMMENTATORS ON GENERAL ISSUES Baral. J.. Paris: Pedone. F.. and Pellet. 1992. I. 1989. Paris: Presses Universitaires de France. 1990. Les Espaces maritimes.. The Maritime Political Boundaries of the World. 1987. Nguyen Huu Tru. Paris: Montchrestien. P. Paris: L'Harmattan.. Roche. Vietnam -lI'histoire . Ruscio. American Journal of International Law (1935). 631 et seq. Brussels: Bruylant. A.G.la terre . Droit international public.. 'L'acquiescement dans la jurisprudence internationale'. 'Discovery. J. and Vallee C. M. American Journal of International Law (1951). 1985. 'Islands in Maritime Boundary Delimitation'.146 Bibliography Kohen. The Minquiers and Ecrehos Case. New York: Methuen.. Khadduri.. Symbolic Annexation and Virtual Effectiveness in International Law'. 1994 Prescott.. British Yearbook of International Law (1955-1956).J. J. and Voelckel.V. 1970.. Ocean Yearbook! (1988). Vietnam. von der Heydte. J. 389 et seq.

'A propos du differend franco-malgache sur les iles eparses du Canal de Mozambique'. 1971.Bibliography 147 Oraison. 10.. T. Chi Kin Lo. Documentation Francaise.. Charney...K. American Journal of International Law (1957). Texas International Law Journal. Revue generale de Droit International Public (1981) 465 et seq. Bennett.. Cheng. P. vol. China's Position towards Territorial Disputes. M. Annuaire Francais de Droit International (1975)... The case of the South China Sea Islands. Stanford Journal of International Law. Korean Journal of International Studies. B. . H. 425 et seq. Ferrier. and Reinsch. A. Chao. Schwarzenberger. London: Routledge. Paris: Economica.I. vol. the column 'Chronique des faits internationaux' in Revue generale de Droit International Public. 443 et seq. Geostrategie du Pacifique. 'Delimiting the Seabed and Future Shipping Routes. J. vol.. 308 et seq..P. 'Sovereignty over Islands in the Pacific'. 'Central East Asian Maritime Boundaries and the Law of the Sea'. 'The dispute over the South China Sea Islands'. No. Problemes politiques et sociaux (March 1973). 4 (October 1998). 'Les archipels Paracels et Spratleys'. 28 (1991-1992). American Journal of International Law. 89. 9 (1989-1990) 67 et seq. J. 1 (1983-1984).T. 'Le conflit des iles Paracels et le probleme de la souverainete sur les iles inhabitees'. American Journal of International Law (1941). 72 (December 1977) and 'Exploration and Exploitation of Ocean Resources in the Western Pacific'. 724. 1 (1975). vol. J. XV. BOOKS AND ARTICLES ON THE QUESTION OF THE ARCHIPELAGOS OF THE SOUTH CHINA SEA Beauvois. 173 et seq. Chiu Hung Dah.. Saigon: Vietnam Press. Couteau-Begarie. China Quarterly No. vol. 'Title to Territory: Response to a Challenge'. Seoul. 1987. 'South China Sea: Boundary Problems Relating to the Nansha and Hsisha Islands'. M. "The People's Republic of China and the Use of International Law in the Spratly Islands Dispute'. 1989. No. G. In general. Chinese Yearbook of International Law. No. Orent.

. L. 1987. S. Lafont. vol. Katchen. 'Les traites de paix du Japon'... Le Thanh Khe. P. Paris. F. 'International Law Rule and Historical Evidence Supporting China's Title to the South China Sea Islands'. Le dragon et la mer. 1958.. Chinese Yearbook of International Law. 'The Spratly Islands and the Law of the Sea: Dangerous Ground for Asian Peace'. 1989.W. Les frontieres du Vietnam. 'Indochine: les nouvelles frontieres'.).H. 1929. Wiesbaden: Otto Harrassowith and Hamburg: Institute of Asian Affairs. Asian Survey (December 1977) 1167 et seq. K.148 Bibliography Focsaneanu. 585 et seq. vol. No. Hasting International and Comparative Law Review. Heinzig. Lasserre. H.P. L'Afrique et l'Asie modernes (1974).. Gomane. J.A. L'affaire des iles Paracels et Spratleys devant le droit international. 48 et seq. Lapique. C. 'Les ambitions maritimes de la Chine'.B. Defense Nationale (December 1994). No. M. Defense Nationale (February 1994). Paris: L'Harmattan. 129 et seq. 1994. 3(1992). 9 (1989 1990) 1 etseq. 'Who Owns the Paracels and Spratlys? An Evaluation of the Nature and Legal Basis of the Conflicting Territorial Claims'. 'Incidents en mer de Chine meridionale'. Labrousse. Montreal: Harmattan Inc.. Annuaire Francois de Droit International (I960). 'China's Push through the South China Sea. P.. 'Quelle solution pour les Spratleys?'.. Politique etrangere. 1996. Memoire. Oxford: Oxford University Press. Kittichaisaree. 1 (1997). Hurel. 21.. A. Defense Rationale (February 1988) 109 et seq. Le iles Spratleys: une source de conflit en Asie du Sud-Est. Institut International d'Etudes et de Recherches Diplomatiques. 331 et seq. Kuan-Tsyh Yu. Disputed Islands in the South China Sea. 999 et seq. D.. The China Quarterly (1992). Lechervy. (ed.. A propos de iles Paracels. J. Jianming Shen. Strategies geopolitiques chinoises en Mer de Chine du Sud... 256 et seq. The Interaction of Bureaucratic and National Interests'. Garver. 'Les tensions en mer de Chine du Sud'. Saigon: Les editions d'ExtremeAsie. The Law of the Sea and Maritime Boundary Delimitation in Southeast Asia.

Ocampo-Kalfors. E. No. D. 'Chronique des faits internationaux'. 1982. 5 and 6 (Nov-Dec 1933). Journal of Southeast Asia (November 1978). 826 et seq. Contest for the South China Sea. Far Eastern Economic Review (28 April 1983). G. Segal.S. 'Asie de 1'Est: le nouveau paysage strategique'. No. Niquet. 23 (1991). British Yearbook of International Law. Samuels. 335 et seq. 196 pages. . G. Saix. S. Park. 1 (1978) 28 er. C-H. 'Le Vietnam face au monde chinois'. Sauvaire Jourdan. Pan Shiying.se?. 'Abandonment of Territorial Claims: the Cases of Bouvet and Spratly Islands'. Ocean Development and International Law. A Historical and Legal Perspective'.. Terre-Air-Mer-La geographie. C.. 5. New York and London: Methuen. Defense Nationale (January 1994). O'Connell. LX No. 'Offshore Boundary Disputes in Southeast Asia'.Bibliography 149 Lee Yong Leng. O. L VII (1986). Bulletin de l'Institut International d'Administration Politique (October-December 1968). 551 et seq. C. 'The Status of Formosa and the Chinese Recognition Problem'.. The Petropolitics of the Nansha Islands . M. infiniment petits de notre domaine colonial'. C. Politique etrangere. 'The Spratly and Paracel Islands Conflict'. V. July 1996. Survival (1989).. Rousseau. La Nature (1 November 1933). M.. 'Iles Paracels'. Case Western Reserve Journal of International Law. 'La question de Hainan et des Paracels'. Marston... Madrolle. Revue Politique Etrangere (1939). 'Le probleme des frontieres chinoises'. 70 et seq. published and distributed by Economic Information Agency. Revue generale de Droit International Public (1972). 3 (1992). 399 et seq.. 'China's Claim of Sovereignty over the Spratly and Paracel Islands. 'Easing towards Conflict'.China's Indisputable Legal Case. 'The South China Sea Disputes: Who Owns the Islands and the Natural Resources?'.P. 405 et seq. 'Les Paracels. Teh Juang Chang. vol. American Journal of International Law (1956). vol. Luchaire. Milivojevic. 131 et seq..

Vo Long Te. Paris: Memoire. J. Valencia. Problems and prospects'. Le differend des iles Paracels et Spratleys. Yamane. 'The Spratly Islands Imbroglio: A Tangled Web of Conflict'. 'The Geographical and Political Aspects of Eastern Asia. van Dyke.150 Bibliography Thomas.. in: International Boundaries and Boundary Conflict Resolution. 1976. Oxford and New York: Oxford University Press. B. Valencia. 2 vol. H. and Bennett. 1974. Sharing the Resources of the South China Sea.l'armee coloniale Liberation Mer et Colonies Le Monde Le Monde colonial illustre Le Monde Diplomatique Newsweek . Tu Dang Minh Thu. van Dyke. D. 1985.L. conference proceedings. Tra Dih Gian.. University of Paris X. Saigon. thesis. Les frontieres maritimes de la Chine. To this set of articles or chapters of books on the question of the Paracels and Spratlys must be added very many articles found in legal journals or in the press. Les archipels Hoang Sa et Truong Sa selon les anciens ouvrages vietnamiens d'histoire et de geographie. 1997. J.. M. and Ludwig. N..L. South East Asian Seas: Oil under Troubled Waters. M. Defense Nationale (January 1988). Martinus Nijhoff. 1991. 1989.. Islands and the Delimitation of Ocean Space in the South China Sea. mimeographed paper.M. Zhou Jian..J. Southeast Asia (30 August 1990). in particular: L 'Asie Francaise Dong Thanh Le Courrier du Vietnam L 'eveil de l'Indochine Far Eastern Economic Review Le Figaro Le Journal des Coloniaux .. 'Le Japon et la peninsule indochinoise'. Ses problemes juridiques.

Informations La Revue generale de droit international public (international events column) Temps nouveaux ARBITRAL JUDGMENTS OR AWARDS Aves Island case Netherlands .Venezuela Award of 30 June 1865 Bulama Island case United Kingdom .United Kingdom Judgment of the International Court of Justice of 17 November 1953 Eastern Greenland case Denmark .Bibliography 151 Pekin .Norway Judgment of the Permanent Court of International Justice of 5 April 1933 Western Sahara case Opinion of the International Court of Justice of 16 October 1975 Case concerning the delimitation of the maritime frontier between Guinea and Guinea-Bissau Judgment of 14 February 1985 .Portugal Award of 21 April 1870 Case concerning the frontier between British Guiana and Brazil United Kingdom .Netherlands Award of 4 April 1928 Clipperton Island case Mexico .France Award of 28 January 1931 Minquiers and Ecrehos case France .Brazil Award of 6 June 1904 Island of Palmas case United States .

La souverainete incontestable de la Chine sur les iles Xisha et les iles Nansha.Vietnam's Sovereignty over the Hoang Sa and Truong Sa Archipelagos. on the draft peace treaty with Japan and the San Francisco Conference (Beijing.10. Chou en-Lai. . 5. Documents relating to the draft peace treaty with Japan and the San Francisco Conference (1951) . 1984.Les archipels Hoang Sa and Truong Sa.Report of debates in the Parliamentary Assembly of the Union Francaise. Hanoi. Information and Press Department. 25 March 1952.Note to the Soviet government from the Chinese government. . 1981. Bulletin du Vietnam. published by the Courrier du Vietnam.Les archipels Hoang Sa et Truong Sa (Paracels et Spratley). 1979.152 Bibliography MISCELLANEOUS Ad hoc documents produced by the Vietnamese government to explain its position. Hanoi.Note by the Foreign Ministry of the Socialist Republic of Vietnam on provocations and incursions into Vietnamese territory by the Chinese authorities in the frontier region. Ministry of Foreign Affairs. 15/31 March 1979.6.Les nouvelles sinologiques. . .Les archipels Hoang Sa (Paracels) et Truong Sa (Spratlys) et le droit international. 22 March 1951. . territoire vietnamien. 15 August 1951). .Statement by the Foreign Minister of the People's Republic of China. .9. 30 January 1980.7. Ministry of Foreign Affairs of the Socialist Republic of Vietnam. Paris. No. document published by the Foreign Ministry of the People's Republic of China.8. 1988. Documents expressing the Chinese positions . . .

610. 559-568. 35.S. 1010. 1024. 1867 Tonkin and Cochin China. box 117 In the overseas archives (Aix-en-Provence) Boxes Indochina 32. 126. 308. 225. series E. 271. 684. 34. 608-612. 17th century Dutch naval chart.18. 1859 I. 5. 33. 31. 1018.Bibliography 153 United Nations documents -A/43/346/2 May 1988 A/43/363/16 May 1988 ARCHIVE DOCUMENTS The main documents concerning this affair were found: In the archives of the French Foreign Ministry Series Asia 1918. 312 Asia-Oceania. 6. 1929 AS. 1880 Naval charts. 1025. China 96. 19-25. 1888 . 662. 261. 17. possessions. 11. 597-601 N. boxes 306. 227. 17th century German map. 34 volume No. 36 N. Paris 1863 Indochina. Indochina 4.F. 1026. 40-55 China N. naval charts. 309 MAPS After a systematic trawl through the card-index of the maps department of the National Library in Paris. 1554 Netherlands.18-40 China 797. 7.C.S. 268. 1881 De Lanessan. 18th century Indochina. the following maps were consulted: Ge D 9210 Ge D 8693 Ge B 220 Ge FF 13341 (89) Ge FF 7909 Ge D 7552 Ge D 24950 Ge C 21797 Ge D 817 Guillaume le Testu.

181. typhoons China Sea. administration. 1893 Paire expedition. 1745 China Sea. 1893 Vidal Labloche. Ge B 214 Ge B 1509(6836) Ge DD 2987 B (7160. airstrips.154 Bibliography Ge C 3067 Ge B 372 Ge AA 25 Ge C 15245 Ge D 20526 Ge CC 3506 Ge D 21832 Ge C 5904 Ge D 21831 Ge DD 2987 Ge D 3610 Ge CC 2301(23) Ge C 10431 Ge C 17228 Ge C 18375 Ge C 16640 Ge C 4272 Ge DD 2987 (7212) Res. 1911 April 1903 The following portfolios were also consulted at the National Library (maps department): Portfolios 180. 1808 IGN. 1951 Provinces of Indochina. late 17th century Hydrographical map. 1680 Nautical chart. bathymetric and fisheries map Political map of Indochina. 1936 Indochina. Lieutenant of the Bombay Marine. Ge AA 1318 Res. 1712 Indochina. 181. coasts. 182 The following portfolios were also consulted at the National Library (maps department): Portfolios 180. 1951 Aeronautical Indochina. Rops. late 17th century Dutch nautical chart. late 17th century Nautical chart. 1792 China Sea 1821 China Sea. radio. manual for the use of troops. China Sea. GeB219 Res. China Sea.61) Ge 2301/17 Ge C 2280 Ge C 15165 Ge C 4269 Ge CC 556 Indochina. 1939 Geographical Service of Indochina. 1940 Indochina. Peter Goes. 18th century China Sea. 1643 China Sea. aviation. 182 . Ge B 220 Res. 1939 Indochina. 1945 Air infrastructure of Indochina. 1897 Girard and Barrere IGN. 1740 Paracels (Western Group) by D. 1947 Indochina. 1951 China Sea.

Annexes 1 2 2A 3 4 5 6 7 8 9 10 11 12 13 14 Map of the South China Sea Chinese map showing China's maritime claims Illustration of these claims Map of the Paracels List of islands and islets Letter from the Governor General of Indochina to the Minister for the Colonies. 6 May 1921 Note from Mr Beauvais. 20 March 1930 Map showing the occupation of the Spratlys (B. 25 May 1950 Note from the Government General of Indochina. 22 January 1929 Map from the 14th year of the reign of Minh Mang Note from the Legation of the Chinese Republic in France. 6 October 1921 Letter from Mr Beauvais.L. Consulate of France in Canton. to the Minister for Foreign Affairs. 4 May 1909 Letter from the Minister for the Colonies to the President du Conseil. 26 December 1927 Note from Mr Bourgouin. 28 August 1788 Letter from the Chief Resident of Annam to the Governor General of Indochina. 4 May 1909 Letter from the official in charge of the Consulate of France in Canton to the President du Conseil. Minister for Foreign Affairs. Minister for Foreign Affairs. Directorate for Political and Indigenous Affairs. 18 April 1921 Letter from the Acting Governor General of Indochina to the Minister for the Colonies. Thomas) Letter from Captain de Kergariou Locmaria. Consul of France in Canton. 8 March 1928 15 16 17 18 . 29 September 1932 Internal Ministry of Foreign Affairs Note to the Directorate for Asia from the Legal Adviser.

10 August 1940 Letter from General Juin. Chief of Staff of National Defence. 17 December 1928 Letter from the Minister for Foreign Affairs to the Minister for the Colonies. 7 May 1951 Letter from General Jacquot to the Secretary of State with responsibility for relations with Associated States. 29April l949 . 6 September 1946 Letter from the Minister of State with responsibility for relations with Associated States to the Minister for Overseas Territories. acting Minister for the Colonies.156 Annexes 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 Note to the Under-Directorate for Asia-Oceania. to the Chairman of the Committee on Indochina. 30 March 1932 Note from the Ministry of Foreign Affairs. 5 May 1939 Telegram of 8 March 1929 Decree by the Governor of Cochin China. 16 June 1955 Letter from the Wai Kiao Pou to the Consulate of France in Canton. 7 October 1946 Report of French naval mission to Pattle Island Telegram of 8 March 1947 Wire from Agence France Presse of 31 May 1947 and telegram of 3 June 1947 Telegram of 25 January 1951 Note from the Legal Department. 28 July 1930 Letter from the Governor General of Indochina to the Minister for the Colonies. 21 December 1933 Letter from the Minister for Defence to the Minister for Foreign Affairs. 18 February 1929 Telegram of 3 April 1929 Telegram of 14 March 1930 Letter from the Minister Plenipotentiary of the French Republic in China to the Minister for Foreign Affairs. to the Minister for Foreign Affairs. 26 February 1929 Letter from the Minister for the Navy. 18 October 1930 Telegram of 4 July 1931 Decree by the Governor General of Indochina. Directorate for Political Affairs and Trade (Asia). 26 November 1928 Letter from the Acting Governor General of Indochina to the Minister for the Colonies.

15 May 1950 Telegram of 23 April 1949 .Annexes 157 42 43 Note from the Directorate for Asia-Oceania.

Implications for delimiting the sea bed and future shipping routes .ANNEX 1 Map 2: South China Sea Hung Dah Chiu. South China Islands.

ANNEX 2 .

ANNEX 2A Chinese Claims Legend: Maximum claim to offshore territory .

ANNEX 3 .

BÃI CHÍNH 1. .ANNEX 4 SITUATION OF THE PARACELS AND SPRATLYS AT THE END OF 1993 I. Vietnamese Name NHÓM AN VINH Cốn Cát Tây Đảo Cây ĐảoBắc Đảo Trung Cốn Cát Nam Đảo Phú Lâm Đảo Linh Côn Đảo Nam NHÓM LƯỠI LIỀM Đá Bắc Đảo Hoàng Sa Đảo Hữu Nhật Đảo Quang Ảnh Đảo Duy Mộng Đảo Quang Hoà Đảo Tri Tôn Bãi Gò Nói Bãi Thuỷ Tề Bãi Quảng Nghĩa Bãi Châu Nhai Đá Bông Bay Đá Chim Yến Đá Lối Đá Bạch Quy English Name AMPHITR1TE GROUP West Sand Tree Island North Island Middle Island South Sand Woody Island Lincoln Island South Island CRESCENT GROUP North Reef Pattle Island Robert Island Money Island Drummond Island Duncan Island Triton Island Dido Bank Neptuna Bank Jehangir Bank Bremen Bank Bombay Reef Vuladdore Reef Discovery Reef Passu Keah Island Chinese Name XUANDE QUNDAO Xi Shazhou Zhaoshu Dao Bei Dao Zhong Dao Nan Shazhou Yongxing Dao Dong Dao Nan Dao YONGLE QUNDAO Bei Jiao Shanhu Dao Ganquan Dao Jinyin Dao Jingquing Dao Chenghang Dao Zhongjian Dao Xidu Tan Beibianlang Zhanhan Tan Binmei Tan Langhua Jiao Yuzhuo Jiao Huaguang Jiao Panshi Yu 2.HOANG SA/ PARACELS/ XISHA ARCHIPELAGO Islands and banks CÁC ĐẢO.

15.TRUONG SA/ SPRATLYS/ NANSHA ARCHIPELAGO UNDER VIETNAMESE CONTROL 1. 7. 8. 5. 18. 13. 21. Vietnamese Name Đá Lát Đảo Trường Sa Đá Tây Đá Giữa (Đảo Trường Sa Đông) Đá Đông Đảo An Bang Bãi đá Thuyền Chài Đảo Phan Vinh (Hòn Sập) Đá Tốc Tan Đá Núi Le Đá Tiên Nữ Đá Lớn Đá Len Đao Đá Cô Lin Đảo Sinh Tồn Đảo Sinh Tồn Đông (Đá Gri san) Đảo Nam Yết Đảo Sơn Ca Đá Núi Thị Đảo Song Tử Tây Đá Nam English Name Ladd Reef Spratly Island West Reef Central Reef East Reef Amboyna Cay Barque Canada Reef Pearson Reef Alison Reef Cornwallis South Reef Pigeon Reef (Tennent Reef) Great Discovery Reef Landsdowne Reef Collins Reef Sin Cowe Island Grierson Island Namyit Island Sandy Cay Petley Reef Southwest Cay South Reef Chinese Name Riji Jiao Nanwei Dao Xi Jiao Zhong Jiao Dong Jiao Anbo Shazhou Bai Jiao Bisheng Jiao Liumen Jiao Nanhua Jiao Wumie Jiao Daxian Jiao Qiong Jiao Guihan Jiao Jinghong Dao Ranqing Shazhou Hongxiu Dao Dunqian Shazhou Bolan Jiao Nanzi Dao Nan Jiao . 6. 12. 20. 14. 11. 17. 10.Annex 4 163 II. 19. 9. 3. 4. 16. 2.

Đá Ky Vân Đá Kiệu Ngựa Đá Hoa Lau Đá Én Ca Bãi Thám Hiểm English Name Mariveles Reef Ardasier Reef Swallow Reef From June 1999 Erica Reef Investigator Reef Malaysian Name Terumbu Mantanani Terumbu Ubi Terumbu Layang Layang Terumbu Siput Terumbu Peninjan . 4. 6. 2. 3. English Name Fiery Cross Reef Cuarteron Reef Johnson Reef Hughes Reef Gaven Reef Eldad Reef Subi Reef Mischief Reef Chinese Name Yongshu Jiao Huayang Jiao Chigua Jiao Dongmen Jiao Nanxun Jiao Anda Jiao Zhubi Jiao Meiji Jiao Đá Chữ Thập Đá Châu Viên Đá Gạc Ma Đá Huy Gơ (Đá Tư Nghĩa) Đá Ga Ven Đá Én Đất Đá Xu Bi Đá Vành Khăn UNDER FILIPINO CONTROL Vietnamese Name 1. Đảo Song Tử DĐông Đảo Dừa ( Bến Lạc) Đảo Thị Tứ Đảo Bình Nguyên Đảo Vĩnh Viễn Đảo Công Đo Cồn san hô lan can (Bãi An Nhơn) Đảo Loại Ta Loaita Island Kota Island English Name Northeast Cay West York Island Thitu Island Flat Island Nanshan Island Commodore Reef Lamkian Cay Filipino Name Parola Island Likas Island Pagasa Island Patag Island Lawak Island Rizal Reef Panata Shoal UNDER MALAYSIAN CONTROL Vietnamese Name 1. 3. 4. 5. 3. 2. 2. 4. 5. 7. 6.164 Annex 4 UNDER CHINESE CONTROL Vietnamese Name 1. 8. 5. 8. 7.

Annex 4 165 UNDER TAIWANESE CONTROL Vietnamese name Đảo Ba Bình English name Itu Aba Island Taiwanese name Taiping dao .

which were then looted by Chinese fishermen. As a preliminary measure I felt it my duty to advise you briefly.would be legally valid only if the Paracels were res nullius at the time. to the Minister for the Colonies. when an official ceremony marking the taking of possession was held on the initiative of the Viceroy of the Two Kwangs. dated 22 January 1929. of the Government General's views on the matter. I was myself informed of them by our Consul in Canton in his letter No. Following the wreck in 1898 of the British vessels Bellona and Huneji Maru. Your Ministry has been duly informed of them at regular intervals.the Chinese themselves have not always feigned certainty of this. Yet . I now have the honour to provide a more detailed reply to your letter No. the Viceroy of Canton countered the protests of the Minister of Great Britain in Peking with the retort: 'The Paracels are abandoned islands which belong no more to China than to Annam. Hanoi.' This ambiguous reply would seem to imply that the author was not unaware of the ancient rights to the islands acquired by the Court of Annam. The first and most significant move occurred in 1909. dated 20 March 1930. Paris Further to my telegram No. Wishing to obtain accurate information myself. This taking of possession. A copy of Mr Le Fol's reply. the only power concerned. 184 of 31 December on the same subject.unlike 1909 . in the above-mentioned telegram. they are not administratively attached to any district of Hainan and no special authority is responsible for policing them. a copy of which is enclosed. . It is likely that the Provincial Council of Kwangtung now claims that its decision is based on this ceremony. 184 you requested further information. intentions which may be put into effect at any moment.ANNEX 5 Letter No. In your letter No. I asked the Chief Residency in Annam for details on 12 January 1929. 17 of 20 February. It was necessary to acquaint you without delay of the intentions of the Kwangtung Government. has never officially made its views known. 501 of 14 March on the sovereign rights claimed by the Provincial Government of Kwangtung over the Paracel Islands. 704-A-Ex. is enclosed. from the Governor General of Indochina. The correspondence incontrovertibly establishes the priority of the rights of the Hue Court. The decision of the Kwangtung Council is merely the natural progression of a series of moves by the authorities of South China to assert their rights of sovereignty over the Paracels.on which France.

the French Government has actually never definitively abandoned asserting the historical and geographical rights of the Empire under our protection. It is perhaps worth noting that Governor General Paul Doumer requested the colony's technical services to look into the possibility of constructing a lighthouse on the islands as early as 1899. when a Japanese company . 135-B of 3 April 1921. were reiterated in my telegram No. . a radio station on the islands to warn of typhoons would be of the greatest possible benefit to navigation in Indochinese waters. At that time. The Paracels were specifically excluded from this inquiry. To sum up. Considerations of expediency alone have so far militated against the official assertion of these rights.without permission . It appears from a report written in 1927 by Mr Krempf. I can do no better than refer you to the above-mentioned letter from the Chief Resident in Annam. which makes this point remarkably well.simply plundered the more accessible parts of them. The strategic interest of the archipelago seems quite another matter. was aware that he could not discuss the status of this archipelago with a representative of France. Budgetary considerations alone prevented the actual construction from going ahead. As Mr de Monzie said in the letter you forwarded to me. it was clearly in our then interest not to alienate Chinese opinion at the very time when the SinoIndochinese Agreements were being negotiated in Nanking. I should add that Indochina would have a further interest in being mistress of these islands. Their geographical location obliges vessels setting a course from Saigon to Hong Kong to make a large detour in order to avoid these reef-strewn waters. Moreover. I agree wholeheartedly with your correspondents in recognizing that it would be in the interests of France to claim sovereignty over the Paracels on behalf of Annam. As I told you in my telegram of 14 March. it seemed to me that the climate of opinion which had been stirred up in both Indochina and France over this issue did not justify any fresh conclusions. initially set out in a note to your Ministry in 1921. Since 1920. since Mr Kurosawa. the guano deposits which prompted several applications to the Government General for concessions have been of only minor importance. The grounds for temporization. that the economic worth of the Paracels has been exaggerated.Annex 5 167 The Japanese Government was in no doubt about the matter: in 1927 it requested its Consul General in Hanoi to make an unofficial approach to the Government General to ascertain the territorial status of several groups of islands in the China Sea. Director of the Oceanographic and Fisheries Department of Indochina. on the instructions of his Ministry.

France would therefore have had a guarantee against any cession of the islands. no doubt you will hold the consequent political drawbacks to be out of all proportion to the importance of the objective to be attained. conclusions which were entirely relevant at the time and which echoed this Government General's view. I would even add that the conclusions of the letter of 22 August 1921 from the President du Conseil. and when the mystique of the Kuomintang had not yet reached the heights we see today. The Paracels might then constitute a bargaining chip or compensation for our concessions on other points. We may indeed find ourselves obliged to envisage the abandonment of certain advantages and privileges which we currently enjoy in China. That letter considered that incorporating the Paracels into the administration of Hainan Island would automatically entail the application to the islands of the provisions of the Peking Convention of 10 April 1898. Minister for Foreign Affairs. . Yet in view of the strategic interest of the archipelago for us and the force of the rights acquired by the Empire we have taken under our protection. Charge d' Affaires in Peking. We would also have secured a subsidiary guarantee of nonfortification by obtaining a declaration from the Chinese Government in exchange for the official recognition by France of China's sovereignty. However. deemed that it would be inadvisable to initiate negotiations on the Paracels with a Government which did not have any authority in southern China. An attempt to negotiate on this subject would most probably be doomed to failure. whether you approve of my view of the matter. Consequently. I cannot deny that it would be even more difficult to obtain from the Nationalist Government today something which our diplomatic representatives in China felt unable to request at a time when China stood divided under two equally weak Governments. and later Mr de Fleuriau. the most expedient attitude to adopt still appears to be wait and see. still a possibility. are doubtless no longer so justified in the current state of affairs. This has the advantage of reserving our rights until the day when more propitious circumstances allow us to secure their recognition. In any event. I should be obliged if you would let me know. As for unilateral action on our part.168 Annex 5 The latter reason has become far less compelling with the adjournment of the negotiations sine die. after consulting the Minister for Foreign Affairs. I would be most grateful for instructions or suggestions on this question from your Ministry and from the Quai d'Orsay. I feel we cannot ignore the matter. in 1921 Mr Maugras.

is an interesting summary of what we know about the history and geography of the archipelago.Annex 5 169 For your own information. and also that of the Minister for Foreign Affairs. This brochure./. (Signed) Pasquier . complete with photographic material. I enclose in duplicate a study on the Paracel Islands written by Mr Lapique.

ANNEX 6 .

Captain of the frigate Calypso .ANNEX 7 Excerpt from a letter dated 28 August 1788 from Count de Kergariou Locmaria.

172 Annex 7 .

Annex 7 173 .

174 Annex 7 .

Annex 7 175 .

176 Annex 7 .

Annex 7 177 .

178 Annex 7 .

Annex 7 179 .

Since then. to the Governor General of Indochina. No. a corps of 70 men recruited from among the inhabitants of the village of Vinh-An formed a garrison on the Paracel Islands under the name Hoang Sa doi. These documents. deserted and barren. a geographical work on Annam published in the 14th year of the reign of Minh-Mang. book 6. 4. the occupation was nonetheless effective. from the Chief Resident of Annam. The matter was the subject of a detailed study carried out in 1925. . prior to the voyage undertaken by the director of the Nhatrang Oceanographic and Fisheries Institute. give the following details. who is said ceremoniously to have raised the flag of Cochin China. In his work The Geography of Cochin China. a geographical work by Duy-Tan. and later disbanded it. volume 2. I can do no more than reiterate the facts established by the above-mentioned investigation. Bishop of Isauropolis and Apostolic Vicar of Cochin China-Cambodia and Champa. 103-A Ex dated 12 January 1929 regarding the ownership of the Paracels. conserved in the archives of the Annamese Government. translated into English and published in the Journal of the Asiatic Society of Bengal in 1838. Monsignor Jean Louis Taberd. Under former dynasties. No new information providing a definitive answer to the vexed question of ownership having since emerged. Hue. reports the occupation of the Paracels archipelago in 1816 by Emperor Gia Long. as evidenced by works such as Annals of the Annamese Government (DaiNam-Nhat-Thang-Chi).ANNEX 8 Letter of 22 January 1929. Hanoi No. 184-A I have the honour to acknowledge receipt of your letter No. Another doi named Bac Hai was later formed and placed under the command of the Hoang Sa doi. a veritable labyrinth of small coral islands and sandbanks deservedly feared by sailors. The Paracels archipelago. or Nam-Nhat-Thong-Chi. seems to have remained res nullius until the beginning of the last century. Gia Long reorganized the garrison in the Paracels. Nam-Viet-Dia-Du. it does not appear to have been re-established. Although doubts may be cast on the authenticity of the formal taking of possession by Gia Long himself.

to assert the right of the State under its protection to the islands in question. even though this is too vulnerable because the coastal route lays it open to destruction by the long-range guns currently in use in existing naval units.were found. In the event of war. appear not to have asserted their ownership of the Paracels for many years. Our proteges. would be directly under the eye of a base set up in the islands.000 pounds (can) of various objects . It would appear that Annam no longer has any connection with the Paracel Islands. One of them discovered an ancient pagoda bearing an inscription in characters. their occupation by a foreign power would be one of the most serious conceivable threats to the defence and integrity of the territory of the [French] Union. 30 December 1928). did state in a letter dated 3 March that year that 'these islands still belong to Annam. iron. An adversary would find that they provided a powerful naval base. Annam's largest port. it should have been for France which. we would be obliged to use the existing railway. which passes close to the Paracels. In 1838 Minh Mang sent workmen and materials to the islands to erect a pagoda and a monument to commemorate the expedition. In the present circumstances. . therefore. When China claimed the islands in 1909. since the shipping route between Saigon and Hong Kong. etc. Most of the fishermen or junk owners of the coast know nothing at all about the islands and none of them go there. the Far East and the Pacific would be cut off. The islands are actually the natural prolongation of Hainan. thus playing into the hands of the Chinese. with wells and several excellent anchorages. had taken the place of Annam in the conduct of its foreign relations . former Minister for War who died in 1925. around 2. there is no dispute on this score'. such a base would be practically impregnable. pig-iron. .laminated copper.Annex 8 181 Minh Mang despatched several official missions with instructions to explore the archipelago. but also to isolate Tonkin by cutting off access from the sea. By its very nature. During the excavation required for this construction. Similarly. who were reportedly preparing officially to take possession (Eveil Economique. providing clear evidence of a former appropriation of the island. It seems on the contrary that France completely lost interest. under the terms of the Treaty of Protectorate. no-one is entitled to ignore the considerable strategic importance of the Paracels. although His Majesty Than-trong-Hue. A flotilla of submarines based there would be able not only to blockade Tourane. all communication between Indochina. In order to maintain a link between Cochin China and Tonkin.

/. cannot have escaped the notice of the competent authorities. I felt it my duty to bring them to your attention once again. at this critical juncture. Nevertheless. (Signed) Le Fol . although in my view some authorities have failed to appreciate the very serious nature of such threats.182 Annex 8 I am well aware that these threats. since of all the countries of the Union. and other more serious ones. Annam will be the one most directly interested in a solution to the question.

From the geographical work Hoang-Viet-Dia-Du 14th year of the reign of Minh Mang .ANNEX 9 Map of Indochina .

signed in Peking on 26 June 1887. President of the Commission of Inquiry into these islands. at latitude 21 °30' north and longitude 108°2' east. Clause 3 of the Convention on the Delimitation of the Frontier between China and Tonkin. The eastern group is called the Amphitrites and the western group the Crescent. most of them are barren sandbanks. and to the files on the islands compiled by the Department of Industry of Kwangtung Province. lie in the territorial sea of Kwangtung Province (South China Sea). These groups lie 145 nautical miles from Hainan Island. the Paracel Islands in any event lie far to the east of the line and are separated from the coast of Indochina by Hainan Island. beyond the frontier as determined by the Delimitation Commission. the Legation of the Chinese Republic in France has the honour to transmit its Government's reply to the Foreign Ministry's Note of 4 January 1932 on the subject of the Paracel Islands.ANNEX 10 Note of 29 September 1932 from the Legation of the Chinese Republic in France to the Ministry of Foreign Affairs. according to the above provisions. and form the southernmost part of Chinese territory. From their . the islands lie between longitude 110°13' and 112°47' east. following the coast southwards from this point. The islands which are east of the north-south line passing through the eastern point of the island of Tch'a Kou. are allocated to China. 10 or so are rocks and 8 are true islands. The Si-Chao-Chuin-Tao Islands ( ). According to the reports on the Si-Chao-Chuin-Tao (Paracel) Islands drawn up in the Year XVII of the Chinese Republic (1926) by Mr ShenPang-Fei. Since the coastline of Indochina lies west of ChouChan.) and called the Paracel Islands in the foreign tongue. stipulates that at Kwangtung it is agreed that the disputed points which lie east and north-east of Mon Cai. Paris On the instructions of its Government. The starting point of the frontiers between Indochina and the Chinese Province of Kwangtung is Chou-Chan ( ). the Si-Chao-Chuin-Tao Islands form one group among all the islands in the South China Sea which are an integral part of the territorial sea of Kwangtung Province. More than 20 in number. are also allocated to China. to the northeast are the Ton-Chao Islands ( ). also known as Tsi-CheouYang ( . The Gotho Islands and the other small islands west of this line belong to Annam. which forms the boundary. large and small.

moreover. on the occasion of the Meteorological Conference held in Hong Kong. Since the Paracel Islands already formed part of China's territory. In 1908 the question of constructing a lighthouse on one of the islands in the Paracels for the protection of shipping was a matter of international maritime importance. in 1909 the Government of the former Ch'ing dynasty sent a naval expedition to study conditions in the islands and to manifest its effective occupation to other nations of the world: the Chinese flag was raised and was saluted with a round of gunfire on Woody Island. According to international law and custom. The natives of Hainan who settled in the Paracels. thereby bringing these territories into their country's possession. the French Director of the Observatories of . Since the Tenth Year of the Chinese Republic. In April 1930. the authorities of Kwangtung Province have already on more than five occasions granted authorization to Chinese nationals wishing to exploit the resources of the islands. have done so since the distant past. Indeed.Annex 10 185 geographical position. having received through the maritime customs service a request from the shipping companies concerned for the construction of a lighthouse. The Chinese Government. on that occasion either. and built houses and fishing boats there to supply their needs. the prime condition for the possession of an island lying far from the mainland is the first effective occupation. The only people to visit these places are the inhabitants of Hainan Island. Apart from Woody Island and Lincoln Island. The French Government made no protest. the remainder of the islands in the archipelago are formed of nothing more than sand or outcrops of coral. it is easy to see to which country they should be attached. The archives which substantiate these claims may be consulted. but it omits to mention that 100 years ago Indochina was under Chinese tutelage. in other words the nationals who were the first to settle lands. Compelling evidence which might justify the French Government's resort to the right of priority of claim is lacking. The Foreign Ministry's Note does not say on what island monuments and tablets were erected. who come here to catch or collect fish and Indochinese people have never been known to settle there. has never before expressed any claim to occupy these islands. presenting no value from the point of view of colonization. What exceptional grounds did the Kings of Annam invoke for going there and erecting monuments and tablets? The French Government may well consider such literary allusions to be historical. The French Government. subsequently consented. where guano deposits provide material for fertilizers. Indochina had no right to carry out acts of occupation on the possessions of its suzerain.

since there is no mention of this matter in its records. Mr E. who both attended the Conference. Paris . and the subsequent intervention of the British Consul in Hoihow. and the Director of the Zi-Ka-Wei Observatory. but that the French themselves share this view. Stamp of the Legation of the Republic of China. According to the principles of international law concerning the right of priority of claim and continuous occupation. suggested to the representative of China that an observatory might be set up in the Paracels./. documents and records incontrovertibly show that the Paracels archipelago forms a part of China's territory. It is difficult for the Chinese Government to verify the case involving the loss of vessels in the area of the Paracels in 1898. Froc.186 Annex 10 Indochina. Reverend Father L. the islands belong to China as a result of its occupation of them over a period of many centuries. The treaties. and consequently there is no doubt that no other country may claim any rights to them. This proves that not only are the Paracel Islands internationally recognized as belonging to China. Bruzon. as stated in the Note of the Ministry of Foreign Affairs.

in 1947 as in 1937. The Chinese Government did so by its declaration of 26 October 1946 and the French Government by its declaration of 18 February 1947. ** * .ANNEX 11 Internal Ministry of Foreign Affairs Note of 25 May 1950. since the two States involved in the dispute have accepted the optional clause in the Statute of the International Court of Justice. * * * The consistent reluctance of the Chinese Government. the only means of settlement which remains open is thus a unilateral one. The decision to initiate proceedings directly against the Chinese Government before the International Court of Justice therefore depends on the French Government . 194 of 16 May 1950.to establish the arguments on the merits which might be put forward in support of the claim to French sovereignty over the Paracels. to accept the French Government's proposal to take the matter to arbitration. for a settlement of the dispute between France and China concerning sovereignty over the archipelago. this procedure is not without difficulties. even unilaterally'. we can do this. suggests that the Chinese Government will be no more willing today than it was yesterday to conclude a special agreement with us on this point. addressed to the Directorate for Asia by the Legal Adviser Re: the Paracels The purpose of this note is not . Although apparently simple. on condition of reciprocity. both of which are valid for a period of five years. Technically. namely to indicate the possibilities open to France 'to submit the case to the International Court of Justice.with a view to any subsequent arbitral or jurisdictional debate . Legally speaking. owing to the present situation in both Indochina and China. Its purpose is solely to answer the question raised by the Directorate for Asia and Oceania in its Note No. recognizing the Court's compulsory jurisdiction.and the French Government alone.

188 Annex 11 A. acting as protector State. The Vietnamese Government might therefore express the wish to share in the drafting of the application. and Emperor Bao Dai. Were relations between France and Annam still governed by the Treaty of Protectorate concluded in Hue on 6 June 1884. it would be difficult to deny that the dispute over the Paracels directly affects Vietnam's 'own interests'.are titles which belong to Annam and it is in its capacity as the protector State. prior to any negotiation. thus constituting a precedent whose ramifications it would be unrealistic to underestimate. in his capacity as President of the French Union. the powers which it is unable to exercise. the earlier exercise of sovereignty . in his capacity as sovereign of Vietnam. on a narrow interpretation of the text. responsible for the conduct of Annam's foreign relations. However. this would present no difficulty. might even demand that the application be submitted in its name. it would be for the French Government. submitting the dispute to the International Court of Justice by means of a unilateral application could be said not to involve the 'negotiation' or the 'signature' of an 'agreement' at all. Under Article II of these diplomatic instruments. and might insist on appointing Vietnamese agents or counsel with instructions to defend the view of the applicant Govemment(s) before the Court. Such demands would probably raise no insoluble legal problems and their moderate character might even prompt the French Government to accept them. Yet it must be clearly seen that they would definitively enshrine Vietnam's international personality and would result in Vietnam appearing directly before the International Court of Justice. However. it submits its plans to the Government of the Republic for examination by the High Council and that negotiations are conducted in consultation with the diplomatic missions of the Republic' Admittedly.e. The sole titles to which France lays claim in this case i. which is determined by the exchange of letters of 8 March 1949 between the President of the French Republic. ** * . to exercise for and on behalf of the State under its protection. such a view is more in line with the current state of the law. on the express condition that. France took possession of the Spratlys in 1931 -1932 'in the name of the Emperor of Annam'. that France claims to invoke these rights against third States and possibly to obtain recognition of such rights before the International Court. 'Vietnam shall be empowered to negotiate and sign agreements relating to its own interests.

who are nationals of the States which have already recognized Ho Chi Minh. the Government of Ho Chi Minh. and that consequently no Chinese judge ad hoc would be appointed.apart from inevitable protests on the radio and in the press .especially if it succeeds meanwhile in establishing effective control over the Paracels . A second difficulty relates to the existence in Indochina of a de facto authority. which the French Government has refused to recognize. the Republics of Eastern Europe. and might prompt dissenting opinions unwanted in their conclusions and their reasoning alike. The existence of two governments and the instability of the present situation in Vietnam might thus mean a weakening of the impact of the Court's Judgment.is the Nationalist Government.the Soviet. Unfortunately. However. etc. the People's Republic of China (Government of Mao Tse Tung). Certain judges would most probably not fail to avail themselves of such arguments. several third States have recognized the Ho Chi Minh Government as the sole Government of Vietnam. possibly even rejection of the present Chinese judge. the other. Without for one moment wishing to impugn the independence of the judges of the Court . There seems very little likelihood . which is recognized by several States including the USSR. India. Yugoslav and Polish judges for example . and against which it is engaged in hostilities. can perhaps not be absolutely ruled out. .Annex 11 189 B.the only one recognized by France . At present there are two authorities in China: one .who in no way are the agents of their respective governments .will not fail to pose as the sole heir to Chinese sovereignty in the archipelago. the United Kingdom. ** * Similar objections must be made with regard to the Government of the respondent State. Pakistan and the Netherlands. the fact that China has a judge at the Court. a refusal by that Government to recognize any international settlement achieved without its participation. Here too there is reason to believe that the Government of the People's Republic of China . does not dispense with all the difficulties. thus strengthening neither our position nor the authority of the Court.of this de facto authority intervening in any proceedings before the International Court of Justice.the possibility that this consideration might influence the decision of the judges . Some of these are easily imagined: a demand by the Communist Chinese Government to take part in the proceedings.

the Legal Department finds it preferable to defer settlement of the dispute before the Court until such time as a single./. without of course claiming that such reasons are decisive in a debate in which political factors are also important. unchallenged governmental authority has been established in both China and Vietnam. (Signed) A.S. .190 Annex 11 ** * For all these reasons.

Woody Island. which remain their operational base until October. Robert and Money Islands. Others lie clustered in the two main groups: the Crescent to the north. Large expanses of reef feared by sailors lie scattered between the islands. and in winter. Passu Keah Island to the south. and their roadsteads are traversed by violent currents. felt it proper to draw the Governor General's attention to the importance of the geographical situation of these islands in relation to Indochina. The anchorage they offer would not be suitable during the north-east monsoon. Ship captains make it their business to identify them. such as the Triton group to the south-west. The Paracel Islands. including Duncan. When their activities are finished. and for salting and drying fish. The islands are low-lying. they take advantage of the end of the south-west monsoon to return home. and Tourane on the coast of Annam. as well as being too deep (40 metres or more). over 150 nautical miles south-east of Hainan. too exposed and of poor quality (coral seabed). Pattle. Hanoi The first mention of the Paracel Islands found in the files of the Government General dates from 1898. On land they have primitive huts used for storing provisions. lie more or less equidistant from Tuling Kan. Only two islands have springs yielding brackish water. Towards the end of the north monsoon. following a communication from our Consul in Hoihow. they cannot provide permanent shelter. and then only by day. from the Directorate for Political and Indigenous Affairs.ANNEX 12 Note dated 6 May 1921. flotillas of Annamese and (mostly) Chinese fishermen set out for the Paracels. clear weather they are a known landmark. A few islands are isolated and outlying. Government General of Indochina. . In calm. including Woody Island and Rocky Island. The largest. Sailors avoid them in the season of typhoons and fogs. Drummond. In winter the Paracels are deserted. While they might offer temporary refuge from a violent wind from a particular direction. the southernmost port of Hainan. Lincoln Island to the east. is only one mile long by three-quarters of a mile wide. the Amphitrites to the north-east. The Paracels are not permanently inhabited and anyway are almost barren. At that time the Ministry of the Colonies. which fishermen from Hainan and Annam find drinkable if boiled. They form a thinly scattered group of islands surrounded by coral banks.

Pakhoi. The wrecks were abandoned. Chinese Fishermen in light craft then began systematically to loot the wrecked ships. Weitanao). claiming that the Paracels were abandoned islands which belonged no more to China than they did to Annam. and that they should be held responsible. The Bellona and the Imegu Maru were both carrying cargoes of copper insured with British companies. Ships expensively chartered for that very purpose were dogged by bad weather and had to return to Hong Kong with very little to show. Chabrier. that they were not administratively attached to any district of Hainan and that no special authority was responsible for policing them. However. demanding that the copper be impounded. With . and since part of the copper had already been landed at Hainan. On the advice of Mr Pichon. The Germans made systematic hydrographic surveys of the area between 1881 and 1884. It was not possible to infer their true intentions from such operations. Until 1908-1909. that they should have taken precautions to prevent the looting. the latter two giving rise to noteworthy disputes. in June 1899 Mr Doumer informed the Ministry that the commercial venture planned by Mr Chabrier stood no chance of success. who wished to set up stores in the Paracels to supply fishermen. the Ministry of the Colonies transmitted to the Governor General a request for information it had received from a journalist. (a Japanese vessel) on the Amphitrites in 1896. which they carried out in general in almost all corners of China's seas (Hainan. at their behest the Minister of Great Britain in Peking and the Consul in Hoihow intervened. The insurance companies refused. France's Minister in Peking. However.192 Annex 12 There have been many shipwrecks: the Mariana (a German vessel) on Bombay Reef in 1891. the Bellona (a German vessel) on North Reef in 1895 and the Imegu Maru. in view of their situation. it seems that no power manifested any intention of annexing the Paracel Islands. as far north as Amoy and Foochow. stating that the mandarins of Hainan had been informed of the wrecks as soon as they occurred. On various occasions the British press urged the British Government to build a lighthouse on one of the islands in the Paracels. it seems that this was solely in the interests of navigation. Through their shipowners in Hoihow. they offered to sell the looted copper for half its value. Mr N. The mandarins protested. In December 1898. the Governor General of Indochina felt that France might be well-advised to prevent another power from becoming established in the Paracels. A vain attempt was made to salvage the cargoes.

until recently under the following circumstances: in a letter dated 20 September 1920. Captain Remy. Having thus taken possession of the whole of the Paracels on behalf of its Government. which might in some way be considered part of that Empire. our Consul in Canton. and the archives of the Government General contain no reply from either of the two Ministries concerned. In June 1909 a second expedition was sent. I must add that. the abandonment by France of all rights to ownership of the Paracels might seem like the compensation demanded. They included the Paracels. saving that Government's face. In 1907. there has been no further mention of the Paracel Islands. sand. whether the Paracel Islands were French possessions. felt it necessary to ask the Commander of the Navy in Indochina. on 24 September 1920. unhealthy climate. or else 'to turn a blind eye' so as not to stir up Chinese 'nationalism'. nor do they contain any document showing that either metropolitan France or the colony has since shown any interest in the question of the Paracels. an official Chinese expedition explored the Paracels and concluded that it would be possible to mine the rich deposits of phosphates the expedition claimed to have identified. the expedition returned home some days later. Following these various displays. having found nothing but rocks. In April 1909. at approximately the same time. In such a situation. firing a 21-round salute on two of the larger islands. asked the Minister for Foreign Affairs for advice on what to do in this situation: whether to prevent the Chinese Government from taking effective possession of this group of reefs. It appears that Mr Beauvais never received a reply. the Viceroy of Canton became exercised with claiming ownership of all the groups of islands along the coast of the Celestial Empire. in the wake of Japan's claims to the Pratas Island group. A few days later. In explanation. Mr Beauvais. he advocated building a lighthouse for the purpose of justifying any subsequent claim to sovereignty on our part. Mr Boissonnas suggested in one of his letters that any French concession at all to the Chinese Government. Captain Remy saw fit to reply: . Since that time. at least not to our knowledge. a Japanese shipping company. would make it easier to settle the matter of compensation for the Tunnam railway. Mitsui Bussan Kaisha. some brackish wells and a torrid. It formally raised the Chinese flag. Nothing came of the matter. apparently less enthusiastic than its predecessor.Annex 12 193 this in mind. the company claimed that it intended to mine minerals having a phosphoric acid content of 32 per cent which it had identified on the islands.

Nevertheless. dated 24 January 1921. the Paracel Islands. 206 of 28 September 1920 Navy Saigon to Navy Paris ((Question having been raised and investigations Indochina unfruitful please advise whether nationality Paracel Islands duly established pursuant to what document.Chinese claimed ownership of Paracel Islands in 1909 only information found so far. reading as follows: 'Approximately 300 kilometres from the coast of Annam lies a group of deserted rocks. the Commander of the Navy had turned to the Governor of Cochin China. having failed to find any information in the naval records establishing the nationality of the Paracel Islands. the Governor of Cochin China requested me to raise it directly with the Ministry of the Navy. who reportedly had the matter investigated in his own archives and in those of the Government General to no avail: 'Deeming the question interesting. despite the fact that the Department held full records on the question since the present note has been drawn up solely on the basis of the documents in its archives. 569 of 23 January 1921 Navy Paris to Navy Saigon ((Your 206 .' This explains the following cables: . Moreover this Government General has . the Government General was not directly confronted with the question until a telegram of 1 February 1921 from the Ministry of the Colonies. Advise origin and purpose of this question 1830/21/1)). it appears that. Did the official who drafted the reply not realize that one submarine base in the Paracel Islands would be sufficient to blockade the entire coastline of Indochina?' Clearly. Europe Nouvelle was referring to Captain Remy's reply to the Mitsui Bussan Kaisha Company.194 Annex 12 'There is no paper in the official documents of the Navy allowing the nationality of the Paracel Islands to be determined. but this assertion is based solely on my personal memories and I cannot provide you with any conclusive document in support of this.No. 1100/28/29)). The reply was negative. For whatever reason.' From a letter addressed by the Commander of the Navy to the Government General.No. I think I can assure you that they are not a French possession. . The telegram referred to a short paragraph which had appeared in the newspaper Europe Nouvelle of 2 January 1921. Recently the Consul of Japan wrote to the Government of Indochina to ask whether France claimed ownership of the islands. It must be said that there is no document in the Department of Political and Indigenous Affairs either from the Governor of Cochin China or the Commander of the Navy referring to any request for information on the Paracel Islands.

831 dated 30 March 1921 and published in the Official Gazette of Kwangtung (No. did not see fit to bring the matter to the attention of the relevant 1 We read today in a report From Mr Beauvais that the representative of Mitsui Bussan Kaisha in Canton has sent a personal letter of congratulation to Dr Sun Yat-Sen on his recent elevation to the Presidency of the Republic of Kwangtung. for whom the claimed authority of the Governor of Cochin China could in no event serve as substitute in such circumstances. dated 6 April 1921. one cannot help but compare the dates. However.Annex 12 195 never had occasion to reply to any request whatsoever for information on the matter. or others. Furthermore. albeit in a personal capacity. had barely begun when a letter was received from Mr Beauvais. who were aware of Captain Remy's reply to the Mitsui Bussan Kaisha Company. Consul General in Canton. and did so without first consulting the Government General. either from a Japanese consular or diplomatic authority. The inquiry into the matter. the civilian Governor of Kwangtung announced that. no doubt interested parties. or from any other source. if some surprise is also warranted at the fact that the Ministry of the Navy was consulted on a dispute concerning French nationality. immediately ordered by the Governor General. the heads of the military Government of the south had decided administratively to incorporate the Paracels into the sub-prefecture of Yai Hien. it seems regrettable that the Commander of the Navy saw fit to reply. 2619 of 2 April 1921).ratification of the act done in June 1909 . appears to enjoy fairly close relations with the most eminent personage in the new Government. and it is not beyond the bounds of possibility that the Canton Government's attention may have been more particularly alerted to this matter. it may well be possible that there is no connection between the recent decision of the Canton Government . In view of the previous events we reported above. The Company. or by eminent Chinese nationals having read Europe Nouvelle in Paris.and Captain Remy's above-mentioned reply to the Japanese shipping company. it is even more surprising to note that that Ministry. at a meeting on 11 March 1921. at least in the person of its representative in Canton.1 This being so. Hainan Island)). . informing the Governor General that: ((By an order No. to a foreign shipping company on matters whose very nature should have warranted silence or at least more cautious reservations. when approached. by the opinion of diplomats at the Legation of China. nor between the Government's decision and the article in Europe Nouvelle referred to in the Ministry's telegram of 10 February.

196 Annex 12 department of the Ministry of Foreign Affairs. Hanoi. concerning as it did land close to one of our major possessions. the Ministry of the Colonies. 6 May 1921 . or.

the Viceroy of the Two Kwangs sent an expedition comprising three officers to the Paracels at the end of last March. they pose a major threat to shipping and a lighthouse may prove necessary. On reading the report. The officers did indeed find proof that an expedition consisting of two Germans and one Japanese. Consulate of France in Canton Re: The Paracel Islands The difficulties which arose over the Pratas Island group drew the Chinese Government's attention to the various groups of islands along the coasts of the Celestial Empire. In the report submitted on their return. as evidenced by the many boreholes they left in their wake. together with their Malay servants. The islands are also visited by Annamese and Chinese fishermen. the largest ones being five to six miles long. and a fresh voyage to the Paracels is about to be made by the Chinese authorities. However there were any number of clearly visible traces of the passage of foreigners at various times. the three envoys stated that they had identified 15 islands. The fishermen said they were aware of the passage of foreigners in the area. the Viceroy contrived a plan to entrust the exploitation of the islands to a syndicate of Chinese merchants: to this end. but that they were to be found in southern Hainan. he instructed the Taotais Wang p'ing ngen and Li Che-suin to conduct a new survey of the islands. and that there were no Europeans in the archipelago. our agent states that the Paracels have a certain importance for France: lying halfway between Saigon and Hong Kong. Bloody fights break out on such occasions between fishermen of the two countries. Mr Beauvais contends that France has as many rights to the islands as China and that it would be easy for us to find arguments to support our . Since the Viceroy had originally been told that the Japanese and the Germans had visited the islands. To counter the possibility of a similar attempt on these islands. including on the trunks of coconut palms. In this connection. particularly the Paracels archipelago. Names had been carved in many places. the envoys closely questioned the Chinese fishermen living in flimsy huts. who halt there during their fishing trips for a perfunctory preparation of their catch. the only people they found in the normally deserted islands. and had prospected for deposits worth mining. had travelled around the southern part of the large island.ANNEX 13 Note dated 4 May 1909 from Mr Beauvais.

in his view.198 Annex 13 claims. more damaging to us than the possession of the Paracel Islands would be useful. to turn a blind eye. since any intervention on our part might lead to a fresh wave of nationalist feeling in the population./. it would be preferable. (Signed) Beauvais . However. should the game not be worth the candle.

The civilian Governor approved this application. Immediately on his return to Canton he applied for the concession for the island.ANNEX 14 Letter of 6 October 1921. (Signed) Tulasne . it would appear that Mr Ho Jouei-Nien is nothing more than a ligurehead and that the real founders and beneficiaries of the company set up to exploit the resources of the Paracels are none other than Japanese. to enable him to work it in conjunction with the Paracels. Minister for Foreign Affairs No. On passing through Ch'ang Kiang./. of the recent allegations in some newspapers on the subject of the concession for these islands. From articles and Sin Min Kouo Pao published in Min Yi Pao . Incidentally. from the official in charge of the Consulate of France in Canton to the President du Conseil. I must advise you. 74 of 30 September. he noted the existence of an unworked island named Feou-Choei-Cheou ( ) lying very close to this sub-prefecture. travelled to the Paracels on a study voyage. Mr Ho Jouei-Nien. 76 Re: The Paracel Islands I have the honour to advise you of the content of a fresh order published in the Official Gazette of Kwangtung dated 4 October. for information only and without in any way being able to vouch for their veracity. the holder of the concession for the islands. concerning the concession for the exploitation of the Paracels and addressed by the civilian Governor to the sub-prefect of Ch'ang Kiang As I stated in my report No.

and Ou King Yong. . . the mission returned from its explorations and arrived in Hong Kong. The seven islands in the western group were covered with coconut palms. who brought the Viceroy back a map of the archipelago. . comprising eight and seven islands respectively. By 19 April. . islands which to some extent may be considered part of that Empire. the largest ones being five to six miles long. this matter drew the attention of the Chinese Government to the various groups of islands along the coasts of the Celestial Empire. On 26 and 31 March. its walls fashioned from pieces of coral. and 150 miles from Yu lin kang Bay in Hainan.ANNEX 15 Letter dated 4 May 1909 from Mr Beauvais. and the smallest just two miles long. and the roof from sea shells. . the Viceroy's envoys had already submitted their report. east and west. It was also reported that the Viceroy of the Two Kwangs. lying at a distance of approximately 145 miles from Ling chouei hien . 86 of 1 May 1909) on the Pratas Island group. On each of the 15 islands. reckoned that salt production could be successfully undertaken there. its crew having a thorough knowledge of the seas around Hainan and the Gulf of Tonkin. where it caused wonder in the local population by exhibiting 20 or so enormous turtles brought back from these deserted islands. Consul of France in Canton. the envoys. fearing that an attempt might be made on the islands similar to the Japanese attempt to claim the Pratas Island group. Lin Kouo Siang. These islands include the Paracels archipelago. On 15 April. for many years on surveillance duties off the coasts of southern China. falling into two groups. which is the Chinese name for the Paracels. They had identified 15 islands. there was a small pagoda. The three envoys embarked on belonging to the customs service and used the cruiser K'ai pan. Wang Jen-t'ang. the Chinese press reported that a European gunboat had recently sailed the length of the Si cha Islands. had just sent three officers on a mission there. The water was brackish. to the Minister for Foreign Affairs. Paris Re: The Paracel Islands As I informed you at the end of my last report (No.

I refrained from doing so. the only people they found in the normally deserted islands. the delegates closely questioned the Chinese fishermen living in flimsy huts. coral and other sea produce. of course. recently discussed with you. The fishermen said they were aware of the passage of foreigners in the area. regular intervals. which his emissaries assured him were found there in extreme abundance. during my time in charge of the Vice Consulate of Hoihow. detailed inspection. the Viceroy of Min Cheu. and his projects took shape. recalling that in 1898. he had the idea of entrusting the development of these islands. which he had just taken back into the fold of the Celestial Empire. Enclosed please find the text of the orders which he gave the Taotais Wang p'ing ngen and Li Che-suin. These men are to make a fresh. On 3 May. including on the trunks of coconut palms. Mr Hauchecorne. and that Admiral Li had been requested to provide the explorers with all possible assistance. On reading the reports. had travelled around the southern part of the large island. as evidenced by the many boreholes they left in their wake. but that they were to be found in southern Hainan. However. The officers did indeed find proof that an expedition consisting of two Germans and one Japanese. and that it seemed to have done a lot of work. This was. It was the idea of His Excellency Chang that warships would visit at frequent. I was on the point of telegraphing a brief outline of the situation to you. Names had been carved in many places. together with their Malay servants.Annex 15 201 The authors of the report noted that there were no Europeans in the archipelago. However there were any number of clearly visible traces of the passage of foreigners at various times. As the Viceroy's intentions became clearer. thus averting any recurrence of incidents similar to the recent events involving the Pratas Islands. and a new voyage to the Paracels by the Chinese authorities is about to take place. it was announced that the Viceroy of the Two Kwangs had borrowed the cruiser Yuan k'ai from a colleague. and had prospected for deposits worth mining. you requested from that post as much information as possible on the Paracels and on any objection . at Foochow. the expedition which my colleague in Hoihow. to a syndicate of Chinese merchants. the Viceroy of the Two Kwangs said that he wished to have the Paracels surveyed as accurately as possible and to transport a number of Chinese families there in order to collect phosphates. Since the Viceroy had originally been told that the Japanese and the Germans had visited the islands.

who halt there during their fishing trips for a perfunctory preparation of their catch. along with the cargo. these islands. However. Chinese fishermen had already taken care of the salvage and the copper had been removed. The Chinese . in the ports of the Hainan coast. carrying a cargo of copper ingots was wrecked in the Paracels. However. Moreover. a Japanese vessel I believe. an incident occurred which elicited from the Chinese a peremptory denial of ownership. A steamship. where it is not unusual to encounter them. Yet precisely at the time you requested information on the intentions of the Chinese Government vis-a-vis the Paracels. the then Consul of Great Britain in Hoihow. which. I did not feel it proper to use telegraphy to inform you of a question in which the Ministry appeared to have lost interest for 11 years. who lodged a request for compensation. Some of them find it much easier to steal from those who have taken the trouble to catch their cargoes of fish.202 Annex 15 which the Chinese Government might have to their occupation. Bloody fights sometimes break out on such occasions between fishermen from the two countries. That was enough for Mr O'Brien Butler. answered your questions. when they arrived at the scene. the Paracels are of some importance for France: lying halfway between Saigon and Hong Kong. when our proteges come off worst in the fight. equidistant from Annam and Hainan. it would have been necessary to abandon the lighthouse keepers to their fate for all that time. Nonetheless. recently appointed Consul General of His Britannic Majesty in Yunnansen. Moreover. In my opinion. the women and children are added to the stolen cargo and sold by the Chinese. The French Government having subsequently given no sign whatsoever of embarking on the practical implementation of the plans which your above-mentioned letter appeared to indicate. Mr Kahn. since the Annamese are in the habit of taking their wives and children with them. the incumbent. the insurance companies attempted to salvage the cargo. The vessel being abandoned by its owners. they pose a major threat to shipping and may need a lighthouse. if my memory serves me well. since it is impossible to land on the islands during the north-east monsoon. you transmitted in code for greater security. France has as many rights to the islands as China. on the same parallel as Tourane. Evidence later emerged that the copper had been taken to Hainan. are also visited by Annamese and Chinese fishermen. I have heard it said that we once had this project in mind but drew back in view of the expenditure entailed. and the insurance companies were able to obtain receipts for the import duties levied on the ingots by Chinese customs authorities on the island.

we could perhaps. It would therefore seem that./. since any intervention on our part might lead to a fresh wave of nationalist feeling in the population. easily find arguments clearly demonstrating our right as well as irrefutable evidence of it. were it in our interest to prevent the Chinese Government from seizing this group of reefs. precisely on the grounds that the Paracels were not part of the Chinese Empire.Annex15 203 Government rejected this. it would perhaps be preferable. However. with a little research. more damaging to us than the possession of the Paracel Islands would be useful. should the game not be worth the candle. I trust you will advise me of any steps you feel I should take on this matter. to turn a blind eye. (Signed) Beauvais . all things considered.

I would be grateful if you could return the enclosed documents once you have perused them. I did not feel I should approach the Ministry of the Navy about this before ascertaining your own views on the matter.ANNEX 16 Letter of 18 April 1921 from the Minister for the Colonies to the President du Conseil. including geographical and historical relations with Indochina and the known diplomatic background to the current state of affairs. is a Note prepared by the Government General of Indochina. Appended to this letter. Minister for Foreign Affairs Re: The Paracel Islands Further to your letter No. I would particularly draw your attention to the idea mentioned by Mr Long on the last page of his letter. to the effect that 'It would perhaps not be excessive. which contains all the requisite information on the short paragraph published in L'Europe Nouvelle. to request a formal commitment from the sovereign Government never to set up a military or naval base there and to install no facilities to that end. in exchange for official recognition that the Paracels are Chinese.' I would much welcome your opinion on this suggestion. I have the honour to enclose herewith for your information a copy of a letter the Governor General of Indochina has just sent me concerning the Paracel Islands. (Signed) Illegible . As for the regrettable consequences of Captain Remy's reply of 24 September last to an inquiry made by the general agent in Saigon of the Japanese shipping company Mitsui Bussan Kaisha Limited./. The Note gives the fullest possible account of the question of the Paracel Islands. 441 dated 26 May 1921.

Ardasier Bank. It betrays certain ambitions which cannot be a matter of indifference to our . Thi Tu Island. Paris I have the honour to inform you that Mr Kurosawa. Loai Ta Reef. asked the Head of the Foreign Relations Department of the Government General. There is no doubt that the question put by the Japanese Consul General would be of great interest to the British. Fiery Cross. The names of the main islands concerned are: Trident Reef. London Reefs. whether he could give him any information. Consul General of Japan. Storm Island. lay outside the delimited quadrilateral and were of no interest to the Japanese Government. There is no mention on any chart of the territorial dependency of these islands. which belong more logically to the Indonesian archipelago than to the Indochinese peninsula. and on which only a few Chinese fishermen or Japanese nationals mining guano venture to set foot. Tizard Reef. Hanoi. which together make up an area particularly dangerous for shipping. Mr Kurosawa wished to know whether France or Great Britain. on the territorial status of several groups of small islands and reefs lying in an area of the China Sea off the coast of Borneo and Palawan. On the other hand. between latitude 7° and 12° and longitude 117° and 118°. 'in a purely personal capacity'. Mr Kurosawa had in his possession a long letter from his Government and a Japanese nautical chart on which the zone concerned had been carefully marked. It would seem that France has never voiced any claim to these islands. American and Dutch authorities. or more probably America (owing to the proximity of the large island of Palawan. Discovery Reef. to the Minister for the Colonies. known as the Paracels. Swallow Reef. Rifleman Bank. during an interview. forming part of the Philippines archipelago) might claim rights of sovereignty or rights of first occupant in the event of any question as to the territorial status of these uninhabited reefs and islands. Amboyna Cay.ANNEX 17 Letter dated 26 December 1927 from the Acting Governor General of Indochina. Mr Kurosawa said that the three groups of islands and reefs off the coast of Hainan Island and the coast of Annam. Danger Reef.

206 Annex 17 Ministry of the Colonies. You will doubtless see fit to inform the latter two Ministries of the above inquiry. Ministry of Foreign Affairs and Ministry of the Navy./. (Signed) Pasquier .

most of them now destroyed. who find an abundance of turtles and sea cucumbers there. Overall. the Japanese claims to the area would totally conflict with the rights of . Some just break the surface. The shipping routes give them a wide berth. protrude slightly above the water and have sparse vegetation (bushes. The area is now visited only by a few Chinese fishermen from Hainan. such markers as there are being rudimentary. not without encountering a whole collection of wrecks washed onto the shoals by the currents. passing on the south-east flank.). and between latitude 7°40' and 9° north. Itu Aba Island (Tizard Bank).ANNEX 18 Note dated 8 March 1928 from Mr Bourgouin Re: Japanese claims to the islands of the China Sea According to Nautical Instructions (China Seas. Strictly according to the details given by Mr Kurosawa. Only three islands. which took soundings and noted some coordinates. on the above-mentioned islands. No trace of any document relating to the territorial situation of the islands has been found in the Ministry's archives. the southernmost land belonging to the Philippines. Most of these reefs are covered by three to four metres of water even at low tide. in the corridor which separates this area from Palawan Island. two of them have wells. The delimitation of the Philippines under Article III of the Treaty of Paris of 10 December 1898 placed under American rule the area between longitude 116° and 117° east of Greenwich. owing to the poor visibility of the shoals. The only remotely detailed observations were made at the end of the last century by the British vessel Rifleman. Loai Ta Island and Thi Tu Island. they are circular in shape with a diameter of 300 to 500 metres. the group of islets and reefs to which Mr Kurosawa referred in his inquiry to Hanoi comprises a vast area of coral shoals and outcrops which are separated by trenches over 1. the area has the reputation of being dangerous ground for shipping. However it should be noted that the quadrilateral to which Mr Kurosawa refers overlaps the territorial waters and the dependent territory of the Philippines level with Barobao Island. very few of which are marked or buoyed. it appears that some of them built temporary shelters. coconut palms). having either a lagoon or an expanse of sand in the centre.000 metres deep. and over which the sea breaks dangerously in bad weather. pages 612 et seq.

more realistically. In any event. has no need to worry about the mtentions revealed by Mr Kurosawa's inquiry. any exercise by Japan of a right of surveillance in the region concerned might constitute a threat to the security of maritime communications between the islands of the various south-east Asian archipelagos and the Chinese or American ports on the China Sea. where we would be more interested in maintaining the status quo. . being separated from this coast by an unbroken ocean trench 1. It therefore seems that France. the islands in question belong neither politically nor geographically to the coastline of Annam./.000 metres.208 Annex 18 sovereignty granted to the United States.000 metres deep. which would already bring the Japanese very close to the southern islands of the Philippines and to the immediate vicinity of the Palawan passage. for its part. it cannot be denied that. this loss of interest perhaps applies only at the official level. Nevertheless. Similarly. since information gleaned by the Consul of France in Hoihow early in 1925 makes it clear that Japanese smugglers are still active in the archipelago. However. especially if. that they stop at longitude 115° or 116° east of Greenwich. It may be supposed. the Japanese Government no longer has any interest in the Paracels archipelago. in geographical terms they are separated from Palawan Island by an ocean trench where the sounding line reached a depth of almost 3. as Mr Kurosawa assured us. in the event of war.000 to 2.

The matter should of course be examined and settled. The granting by the French State of a permit to prospect for mineral deposits is an act of sovereignty. addressed to the Under-Directorate for Asia and Oceania Re: Spratly or Storm Island The first step is to know the exact terms of the reply to the Japanese inquiry at the beginning of 1928. flag. an act which cannot be performed if the island in question already belongs to or is claimed by some other power. in consultation with the Ministries of the Navy and the Colonies. followed by actual operations undertaken by the holder of the concession./. orders issued by the police) would be the kind of act establishing the sovereignty of France over the island in question.ANNEX 19 Note dated 26 November 1928. and accompanied by any manifestation whatsoever of continuous occupation by the French State (visits by warships. If the island is at present terra nullius. the granting of a permit to prospect. (Signed) illegible . The eventual solution might well also be applied to all or some of the other islands in the same group.

ANNEX 20 Letter No. The application was accompanied by four mineral prospecting declarations. against the time when the question of the exercise of our sovereignty over the Paracels is settled positively. on which the appropriate duties had been paid. from the Acting Governor General of Indochina. for the time being. General Gaston Hoang. as it were. I have replied to the New Phosphates Company of Tonkin along these lines. recently planned to sail to the Paracels for the purpose of recognizing them as Chinese territory. in a way confers virtual rights upon it. I am in the process of having the Foreign Relations Department prepare a Note summarizing the various aspects of the Paracels question. any decision. a missionary priest who is General Hoang's trusted adviser as well as being our most loyal informant. I do not know whether the trip actually took place. the plans it has submitted to me. spurred on by the ever-increasing megalomania of Chinese nationalism. The present Governor of Hainan Island. dated 17 December 1928. together with the correct documents. it would take very little for the intentions of the Governor of Hainan to be put into practice. however I would be most grateful if. to the Minister for the Colonies. Paris Re: Rights of sovereignty over the Paracel Islands The New Phosphates Company of Tonkin has submitted an application to the Government General requesting permission to prospect for mineral deposits in one group of the Paracel Islands. This is not the only instance of a challenge to French sovereignty over the islands surrounding the Indochinese Union. though the Company concerned does not know what the eventual legal outcome of its application might be. This procedure. prospecting or settlement must be entirely the responsibility of the individuals concerned. It is therefore time for us to take the initiative and to assert rights which appear to be recognized both in historical documents and by geographical realities. like all those it previously submitted for that matter. . are unlikely to come to anything. However. In the present state of affairs. pending the Note. 2276. you could provide some pointers to enable me to speed up decisions should the Chinese claims become more specific. Hanoi. but according to information supplied to me by Reverend Father Savina.

(Signed) R. 77 (Political Directorate) of 12 May 1928. 1763 of 26 December 1927 and your reply No. Robin .Annex 20 211 Your pointers should be seen against the background of the Japanese intentions which were the subject of our letter No./.

of 18 February. further to your letter to me of 11 January under the stamp of the Directorate for Economic Affairs. does not seem to me sufficiently explicit to warrant a change in that attitude. concerning the possible designs of the Chinese Government on the group of islands known as the Paracels. Paris Re: Right of sovereignty over the Paracel Islands By a letter . Third Bureau. I would therefore be grateful if you would send me the note announced by Mr Robin at your earliest convenience and once I have it I shall ensure that I give the matter further consideration if necessary.No. Paris. the Indochinese administration thus appears to advocate. to the Minister for the Colonies. a position contrary to that decided upon by the French Government in 1921. and which apparently entailed recognizing Chinese sovereignty over the archipelago. enclosed with your above-mentioned letter . 268. in respect of the Paracels. The letter from the Governor General of Indochina dated 17 December 1928.ANNEX 21 Note No. 252 .No. 2276 of 17 December last. As you point out. In that letter. No. Political Directorate. . subject to the application of the Franco-Chinese Agreements of 2 and 15 March 1897.of 18 February./. from the Minister for Foreign Affairs (Directorate for Asia and Oceania). dated 26 February 1929. First Bureau. and of 4 and 10 April 1898. the Indochinese administration now supports the view that France has sovereignty over the archipelago and to that end puts forward historical arguments which it intends to develop in a Note to be sent to you shortly. 252 . you sent me a copy of a letter from the Governor General of Indochina.

acting Minister for the Colonies. it will certainly not have escaped your notice that Mr Robin currently supports the argument of national sovereignty. Nonetheless. based on historical documents which. have not been mentioned before. Paris. I would be most grateful to have your views on this matter at your earliest convenience. the position apparently agreed. In present circumstances. unless a summary of the arguments of the local administration is requested forthwith by cable and received by the same means. for pointers he could follow should the Chinese claims become more specific.S. if necessary. which will enable me. to furnish the Governor General of Indochina with the pointers he requests as a matter of urgency. 125 of 22 February 1929 concerning an application for a mining permit on Storm or Spratly Island.ANNEX 22 Letter of 18 February 1929 from the Minister for the Navy. I would particularly draw your attention to the paragraph in this document where the acting Governor General of Indochina asks. and I feel it should be granted as soon as possible. P. a copy of a further letter from the Governor General of Indochina. in 1921 in particular. is legitimate. 2276 of 17 December last. I have the honour to enclose. as a matter of urgency. the Indochinese administration's desire for pointers dictating what its conduct should be. to the Minister for Foreign Affairs (Directorate for Political Affairs and Trade (Asia . The following passage in the report relates precisely to the above . As I close this letter. was to recognize Chinese rights to the islands 'under certain conditions of security and non-cession'. this time on the possible designs of the Nationalist Chinese Government on the group of islands known as the Paracels. Paris Re: Rights of sovereignty over the Paracel Islands Further to my letter No. it would now seem that any guidelines issued to the Indochinese Government can now only be a matter of wait and see. Pending receipt of the background note announced by Mr Robin. No. the Ministry has received a report from the Governor General of Indochina on the political and economic situation in China.Oceania)). so far as my Ministry is aware. for your information. Quite the contrary. with your full consent.

.'..) 'General Gaston Hoang had planned to visit the Paracels./. . would do well not to allow itself to be taken by surprise by the fait accompli of Chinese possession which it would no doubt be obliged to accept. Annam however possesses historical rights over this group of uninhabited islands which are much less open to question than any Nationalist China might claim. which has a duty to safeguard the integrity of the kingdom under its protection.214 Annex 22 question. apparently substantiating the view that the historical rights referred to several times by Mr Robin relate to the Kingdom of Annam: (. and France. no doubt with the intention of asserting Chinese sovereignty there.

Saigon. Recent interest in Paracels by several business groups. situation has not changed appreciably since Note sent to your Ministry in 1921. especially in present circumstances. do not share view expressed by my predecessor ad interim under No. Having personally considered matter. it does not seem best moment at present to re-open any dispute on ownership of said islands. should be adhered to. In any event. (Signed) Pasquier . the attitude adopted in 1921 and since maintained. I therefore still think that.ANNEX 23 Coded telegram dated 3 April 1929. frankly does not seem to me to warrant fresh conclusions. In fact. New Note would only confirm this. Paris 135 S . from the Governor General of Indochina. in full agreement with the Ministry of Foreign Affairs. to the Ministry of the Colonies.Reply 304 of 9 March. 2276 of 17 December. in the form of actually rather vague applications for mining concessions and certain press articles.

501 Reference your letter 184 of 31 December last. Please inform diplomatic services. Paris No. Consul France Canton reports Legation Kwangtung Provincial Council adopted 14 February last resolution to mine guano deposits Paracel Islands at own expense. Hanoi. nor definitively abandoned asserting historical and geographical rights Empire of Annam. which it had only considered formally relinquishing for reasons political expediency and in exchange guarantees re non-fortification and non-cession archipelago to foreign powers. from the Governor General of Indochina. Remind you French Government has never officially recognized Chinese sovereignty over archipelago. Failing such agreement. and question remaining as indicated in my cable No. we cannot remain indifferent to fresh assertion sovereignty by Chinese authorities./. to which reply sent by mail. (Signed) Pasquier (Certified accurate) . to the Ministry of the Colonies. 135 of 3 April last.ANNEX 24 Official telegram of 14 March 1930.

A NNEX 25 Letter of 28 July 1930 from Mr Wilden. 20 March and 27 May last. to Mr A. . respectively. Minister Plenipotentiary of the French Republic in China. 239 dated. this Legation has stated its views on the matter. While France has never officially recognized China's rights over the archipelago. Your Excellency informed me that the Ministry of the Colonies. 350 Rights of France over the Paracel Islands By your telegram No. in its endeavour periodically to interrupt the prescription which could be invoked against it. Briand. 117 and No. the fact nevertheless remains that we have deliberately not lodged any protest at the acts by which that country. has for some years sought to make plain that it considers the Paracels as dependencies of its territory and is attempting to confront us with a fait accompli. was preparing to claim sovereignty over the Paracels for the benefit of Annam and asked my opinion on the matter. By its telegrams No. Minister for Foreign Affairs No. 113 of 6 June last. reversing its previous position./.

3. (Annals of the Annamese Government). Hanoi. and which you requested of me on 23 July. are the only ones relating to the Paracels which it has been possible to trace in Hue. as follows: 1. as I do. As stated in my above-mentioned telegram 1343. the date on which the Chinese appear first to have expressed their claims to sovereignty over the Paracels. to which I have appended four letters and four maps. book 6. 2. Indeed. to the Minister for the Colonies. An excerpt from 'Dai-Nam-Nhat-Thong-Chi' (a geographical work by Duy Tan).ANNEX 26 Letter No. written in characters with a translation into French. The expedition ordered by his son Minh Mang is proof of a continuity of views within the Nguyen dynasty. In reply to the first of these questions. These documents. that they are sufficient to establish incontrovertibly that Annam took effective possession of the archipelago well before 1909. returning in the fifth month to offer the products collected on the islands for sale in the capital. a continuity which the Chinese Government would be hard put to lay claim to itself. . in reestablishing the Hoang-Sa Doi in 1816. An excerpt from 'Dai Nam-Nhat-Thong-Chi'. volume 2. further to an inquiry from the Minister for Foreign Affairs. written in characters with a translation into French. this doi travelled to the Paracels in the third month of each year. 1512-A. please find enclosed certified copies of the documents traced by Mr Le Fol in the archives of the Residency and of the Hue court. on receipt of your instructions I set about obtaining as soon as possible. I have the honour to enclose herewith the information on the Paracel Islands referred to in my telegram 1343 of 13 August. An excerpt from 'Nam-Viet Dia-Du'. (a geographical work compiled under Minh Mang). all the documents which might provide a detailed answer to the three questions put by the Quai d'Orsay. Paris Further to your telegram 1164 of 29 August and your communication 149 of 1 September last.Ex dated 18 October 1930 from the Governor General of Indochina. written in characters with a translation into French. which you forwarded to me in your 1021. You will probably find. Under former Annamese dynasties. from the services of this Government General and from the consular posts concerned. Emperor Gia Long himself was merely reviving an old tradition.

Please find enclosed a copy of a letter dated 14 August from the Director of the French and Colonial Finance Company concerning a planned expedition to gain a precise idea of what the resources in these islands are. it should be possible to remedy this deficiency. partly by certain responses to my requests for information currently awaited from the Consulates in Hoihow. commissioned a feasibility study on the construction of a lighthouse on one of the islands. As for the other questions put by the Minister for Foreign Affairs. I have given instructions for a search to be made in the central archives of Indochina. It might even be possible to find copies in the archives of the Ministry. following a report on the Paracels by the French Consul in Hoihow. the then Governor General. I would ask you kindly to refer to my above-mentioned letter No. I think I should also add that a number of people representing French business interests in Indochina have contemplated exploiting the islands. These two officials saw fit to make a number of reservations on this matter concerning the validity of our rights. it would be easy to prove that the Paracels are still visited by French nationals. There is no reason to accept the assertions made by these technicians based on inaccurate knowledge of the matter from the diplomatic angle. and partly by means of records which my services are still trying to track down or which may be run to earth in the Ministry itself. I enclose herewith a copy of a letter dated 14-9-1916 from the Head of the Public Works Department and accompanied by an engineer's report on this matter. in which 1 gave an account of the looting of the wrecks of the Bellona and Huneji Maru in 1898. Whatever the case. Pakhoi and Canton. which I feel would constitute our best argument in any diplomatic disputes with China. 704. Actually. the same year the Government General was concerned with the problem of how to guarantee the security of navigation in * Sic.Annex 26 219 I must particularly emphasize the value of this documentation. The relevant records have not yet been traced at the Public Works Department. Incidentally. . I have not been able to assemble such detailed documents as on the first one. that in 1898 Mr Paul Doumer. Nevertheless. This construction project was not* subsequently abandoned. Annamese fishermen sometimes come here during their fishing trips for a perfunctory preparation of their catch. these documents prove that the French administration has never ceased to show interest in the archipelago. I have duly informed you of applications for concessions sent to me on this subject. it was at the instigation of the Ministry of the Colonies. As for the Ministry's third request. which probably received copies of them at the time. It is perhaps noteworthy that.

Please also find enclosed copies of two letters. It was not realized that an official confirmation of this reply to the British Consul in Canton would constitute a virtually watertight argument in support of our case. I enclose herewith a copy of a telegram. and which I drew to your attention by my above-mentioned letter No. No. Attached to the latter is a note on the Paracels by a British national.220 Annex 26 the waters of the archipelago. Mr Dowdal. (Signed) Pasquier . 71 and 89. from Mr Eynard concerning the above-mentioned diplomatic incident. 704. deserted islands which belonged no more to China than they did to Annam. Meanwhile. from the French Consulate in Hoihow containing some interesting views on how the Canton Government is pressing China's alleged rights to the Paracels. and a copy of letter No. I shall not hesitate to let you know as soon as I find out. who by telegram of 18—8 last informed me that he was asking our Consul in Canton to question his British colleague on the subject. the Chinese Government declared that it had lost interest in the Paracels. 104. I put this interpretation of the matter to the French Minister in Peking. 149 from the French Consulate in Hong Kong. the fact that its author spontaneously came to discuss with our Consul the results of his expedition seems indicative of the opinion in foreign circles in southern China on the merits of the Chinese Government's claims. This communication is interesting in the same way as the approach to this Government General by Japan in Hanoi. which sets out the strategic value of the Paracels. Apart from the documentary interest of this note. Nos.

(Signed) Reynaud ./. at beginning of the 18th century existed but very hard to predict outcome arbitration owing to absence for over a century. but this activity should avoid form taking possession and have appearance of simple exercise pre-existing sovereign rights. 680 Reply to your telegram 903 Here is summary consultation legal adviser (one word indecipherable) before Ministry of Foreign Affairs: Rights Annam. Cable your views . documents confirm taking possession of Paracels by Annam mission 1909 and various displays since then by Chinese authorities. Arbitration can only focus on survival rights Annam in 1909.ANNEX 27 Telegram of 4 July 1931 from the Ministry of the Colonies to the Government General [of Indochina] No. Also. Legal position Hue could be strengthened by surveillance mission vessel Paracels archipelago.

they shall each. — In this capacity. — The officials in charge of these Delegations in their capacity as Delegates of the Resident of France at Thua-thien shall reside on Pattle Island and Woody Island respectively. — Two administrative delegations shall be created in the Paracel Islands under Thua-thien Province (Annam) and named Delegation of the "Crescent and Dependencies" and "Amphitrite and Dependencies". Having regard to the Decree of 5 October 1936. The boundary between these two administrative districts shall be determined by the line of the 112th meridian. 156-SC of 15 June 1932 creating an administrative delegation in the Paracel Islands under the authority of Thua-thien Province (Annam) and named the Delegation of the Paracels. except where it intersects Vulladore Reef. . This allowance shall be chargeable to the local budget of Annam. Having regard to the Decree of 28 December 1931 regulating the allowances and benefits in kind and in cash. 156-SC of 15 June 1932 shall be amended as follows: Article 1. paragraph 3.ANNEX 28 Decree by the Governor General of Indochina The Governor General of Indochina Grand Officier de la Legion d'Honneur No. Section 12.Decree No. Article 3. Article 6. 3282 Having regard to the Decrees of 20 October 1911 laying down the powers of the Governor General and the financial and administrative organization of Indochina. Having regard to Decree No. On the proposal of the Chief Resident of Annam: DECREES: Article 1. which is wholly contained within the Delegation of the Crescent. to cover the costs of representation and tours of duty. . Article 2. be entitled to an annual allowance of 400 piastres (400$00) laid down in the Decree of 28 December 1934.

Brevie . in so far as it concerns him. 5 May 1939 (Signed) J. — The Secretary General of the Government General of Indochina and the Chief Resident in Annam shall each. be responsible for the implementation of this Decree.Annex 28 223 Article 2. Hanoi.

ANNEX 29 Encoded telegram of 8 March 1929 Hanoi I have informed the Governor of Cochin China that. on the understanding that this permit is issued at the risks and perils of the parties concerned should this group of islands be validly claimed by some other power. I have no objection to awarding a mining research permit to the Tonkin Phosphates Company in the Spratly Islands. if appropriate. like you. Also discussion with Commander Bonnelli during my forthcoming visit to Cochin China. I would ask you to keep diplomatic services informed of foregoing measures. diplomatic services and Ministry of the Navy of any proposals . clearly stating those reservations./. I have invited him to discuss this matter with the Commander of the Navy and to ask him to consider mission soon with an appropriate unit at his disposal for effective reconnaissance of the island. I shall contact you in due course with a view to informing. After my talks with Senior Commander of troops Saigon. Have therefore asked him to consider Spratly Islands as administratively attached to Baria and to accept declaration research subject to reservations spelled out above and inform Phosphates Company above decision. (Signed) Pasquier .

Itu-Aba. Having regard to the Decree of 9 June 1922 for the reorganization of the Colonial Council of Cochin China and to the subsequent texts. . 034. 21 December 1933 THE GOVERNOR OF COCHIN CHINA. Loaito and Thi-tu which fall under it. ARTICLE 2. each in so far as it concerns him. Officier de la Legion d'Honneur Having regard to the Decree of 20 October 1911. Two Islands group. shall be attached to Baria Province. Saigon. Having heard the Conseil prive. Having regard to letter No.The island named Spratly and the islets named Amboyna Cay. Krautheimer). for implementing this Decree.ANNEX 30 Decree by the Governor of Cochin China (J. situated in the China Sea. Krautheimer Certified true copy of the original Filed in the archives of the Conseil prive . DECREES: ARTICLE 1. and letters No. Head of Baria Province and the Head of the Land Registry and Topography Department shall be responsible.The Administrator. 2243-AP of 24 August and 14 September 1933 from the Governor General concerning the annexation of the islands and islets in the Spratly or Storm group. 21 December 1933 (Signed) J. Having regard to the deliberations of the Colonial Council dated 23 October 1933. Having regard to the Opinion published in the Official Gazette of the French Republic of 26 July 1933 by the Ministry of Foreign Affairs relating to the occupation of certain islands by French naval units. . Saigon.

the idea of taking possession of banks not permanently uncovered. do not meet this condition. such as Rifleman Bank and Ardasier Bank referred to in letter No. It is not possible to take possession of the unexplored part owing to the dangers to navigation in those waters. 1. 242 of 27 February 1931 from the Minister for the Colonies. The act of taking possession would be worded as follows: . 3. Only islands which can be occupied should be taken possession of. In the better-known part. This pre-emptive taking of possession cannot signify that I have the slightest intention of making use of this archipelago for military purposes. those on which men can not only land but also sojourn. if 100 kilometres is accepted as the length of this radius. The act of taking possession can have effect within a certain radius around the landing site. it might serve as a precedent to foreign powers for the purpose of claiming fishing banks or banks adjacent to our coasts yet situated outside our territorial waters. 2. Please find enclosed with this letter a note from the Hydrographic Service describing the archipelago in question. some of whose crowns are constantly above water. you asked me to take possession of the islets and reefs situated between latitude 7° and 12° N and west of the triangular American zone of the Treaty of 10 December 1898. such possession would be pointless and contrary to international law.Directorate for Political Affairs and Trade (Asia-Oceania) Re: Taking possession of the islands west of the Philippines By letter 110 of 27 February. the first of which was occupied on 13 April 1930) would suffice for an affirmation of our sovereignty over virtually all the known part of the archipelago in question. in reality. In my view it is not necessary to take possession of all the islands which can be occupied. in other words. should be abandoned. which is composed of an unexplored part and a part which is better known. and 3 A on the attached sketch. four landing sites (Nos. I have the honour to inform you that I am minded to take possession of these islands in order to prevent a foreign power from claiming sovereignty over them.ANNEX 31 Letter of 30 March 1932 from the Minister for National Defence (Navy) to the Minister for Foreign Affairs . reefs.

The landing sites and what might be termed the radius of sovereignty were only given above by way of indication. I the undersigned. (Signature) This record was also signed by the persons designated below' (Signatures) To effect an act of sovereignty over all the known part of the archipelago.. 19.. they must not form the object of any taking of possession. . which is most likely to occur in the period between the monsoons. this operation needs to be carried out in very fine weather. in order to multiply the points of taking possession and to reduce the radius of sovereignty accordingly. It will be for the ship responsible for taking possession of the archipelago to land on all the islands which can be occupied and where it is feasible to perform this operation. of.. it is feared that the operation planned cannot be carried out before April 1933. day of.. I shall ask him to arrange for the archipelago to be taken possession of as soon as he considers the atmospheric conditions favourable. but as the atmosphere is sometimes disturbed in these waters by typhoons at the September period. on behalf of France. in April and September... but as these points do not lend themselves to occupation.... have taken possession. and of the islands or islets situated within a radius of one hundred kilometres from the point indicated above. it would also be necessary to land at points A and B in the sketch. When I send a copy of this letter to the Commander of the Navy in Indochina.'This.. However.. Island situated at.. You asked me to take possession of the archipelago as soon as possible.

Japanese Ambassador. It was decided to incorporate the islands into the French Empire and the act of possession was duly effected by an advice-boat from our Navy. (Asia). Foreign powers were informed. . it was realized that this archipelago could perhaps be used as a landing strip for planes. invoked its titles of first occupant. Great Britain took formal note of the fact. Directorate for Political Affairs and Trade. In the course of one of the discussions held at the Ministry between Mr Seto. and Mr Leger. A commemorative boundary-marker containing the documents relating to the taking of possession was erected. Annamese fishermen also put in various appearances and. Japanese fishermen endeavoured to mine the guano covering the uninhabited islands. The French flag was raised on the main island. a number of islands and reefs. in the China Sea. whose economic and perhaps also strategic value only appears to have become apparent at the end of the last century. but very soon abandoned the attempt.ANNEX 32 Note from the Ministry of Foreign Affairs. includes. despite having pointed out that the island had previously been visited by a British ship. Japan was the only country to raise difficulties about recognizing the legality of our act of possession and. after aerial reconnaissance exercises by the French Navy. 10 August 1940 Re: Spratly Islands The Spratly archipelago. In fact. At that time. as a base for seaplanes and even as a refuelling stop for ships in the fleet. it seemed that the Japanese Government was not digging its heels in and that the matter could be regarded as settled. in August 1934. Talks were initiated in both Tokyo and Paris regarding the Japanese claims. This act of possession formed the object of a decree published in the 'Official Gazette' and attaching the Spratlys to an administrative district of Annam. alleging that there had been previous incursions by Japanese fishermen and a short-lived attempt to mine phosphates in the archipelago. when the Government General of Indochina and the French Navy began to show interest in the Spratlys. to the south of Hainan Island and to the west of the coast of Annam. these islands were regarded as res nullius until 1930.

and having arrived there. as and when appropriate. decided for its part to mark the French presence in the Spratlys and dispatched Annamese militia there. the Japanese grew more * Gaimusho = Ministry of Foreign Affairs . The protests which the French Ambassador was immediately asked to lodge with the Tokyo Government were dismissed out of hand. put in at the Spratlys. At the request of the Ministry. Our reply was that we would be developing such bases ourselves and that. However. in August 1937. on a tour of duty in the South China Sea. the Navy had a vessel. Being determined to gain a foothold in the Spratlys.During the ensuing years. no doubt following instructions received from Tokyo. set up camp and installed a radio station. no effort was made. the Imperial Government published a decree under which the archipelago was annexed to the Japanese Empire and attached to the administrative district of Formosa. Subsequently. who in reality were Formosan militia led by Japanese officers. the Japanese Navy immediately expressed its intention to extend its activity to the waters off southern China. either by Indochina or by the French Navy. They set up a radio station and were supplied by a cargo ship which periodically called in there from Annam. would authorize British planes to use them. Finally. On the outbreak of the Sino-Japanese War. The members of this company. The Ministry of the Colonies. in agreement with the Ministry of Foreign Affairs. There were moments of quite serious tension in the archipelago between the occupants of the French and Japanese camps. our representatives resolutely carried out their mission and. to give concrete form to our occupation. It set a course for the Spratlys. while Japanese fishermen continued to appear from time to time. The response to the protest which our Ambassador was instructed to lodge in Tokyo was that the Japanese Government had never recognized the legitimacy of our possession of the archipelago. the British for their part reaffirmed their recognition of our sovereignty and proposed that we lease them a site which could be used as an air base. landed its men then took them off again. who were also installed in a camp. the Japanese conceived the idea of setting up a company for the mining of guano and exploiting fishery products. the British Ambassador supported his French colleague in his approaches to the Gaimusho* aimed at ensuring that our rights over the archipelago were respected. Despite the rebuffs they suffered. to place themselves in a legal position on a par with ours. but who were to behave towards the Japanese like simple fishermen.

230 Annex 32 courteous so that relations between the occupants of the archipelago eventually became correct if not actually cordial. invoked the Franco-Japanese Treaty of 1907./. In the diplomatic arena. in its representations to the Japanese Government. . affirmed the legitimacy of its rights to the archipelago and. even considered putting the matter to international arbitration. The Japanese declined. the French Government. to prevent the conflict from turning sour. Each of the Parties has doggedly maintained its position and the ambiguous situation of the Spratly Islands has so far not altered.

it will. consolidate our position in the any future legal debate on this matter between France and China.ANNEX 33 Letter from General Juin. There can be no question of establishing a military base in the Paracels. Chief of Staff of National Defence. If it transpires that the occupation of the Paracels leads to a resumption of the discussion on our rights of sovereignty. On the other hand. with the force of the fait accompli. to the Chairman of the Committee on Indochina. 7 October 1946 Cf: Letter 42/AS from the Ministry of Foreign Affairs transmitted under dispatch note 1048 LC of 20 September 194 [illegible] Re: Paracel Islands Thank you for sending me the letter quoted in reference from the Ministry of Foreign Affairs asking me to let you know my conclusions on the matter. occupying them therefore has no positive military benefit for us. (Signed) Juin . it is of the utmost importance for France to prevent any sign of occupation by a foreign power of the islands which command access to the future base of Cam-Ranh and dominate the sea route Cam-Ranh-CantonShanghai.

Unloaded 10 tonnes of equipment and supplies. .LANDING OF NATIVE GUARDS AND RE-EMBARKATION OF NAVAL DETACHMENT 26 January Weather fair .Wind NNE 1 to 2. Detachment setting up camp. squalls 27 January Fresh monsoon. Landed personnel. Towed a water container to the southern shore. At nightfall. Link with land only with whaler. squalls.-MOVEMENTS 23 January 1330 H 24 January 1730 25 January 1100 26 January 1330 29 January 1830 Set sail from Saigon Docked in Nhatrang Sailed from Nhatrang Anchored at Pattle Island Set sail for Tourane. Lighterage impossible. 28 January Monsoon dropped slightly. advice-boat Commandant Duboc. to Rear Admiral. 52/EMP/TS of 16 January 47 Message 63/EMP/TS of 20 January 47 Instruction N. 2. Commander of the Navy in Indochina References: Instruction N. wind got up. choppy sea. .ANNEX 34 Confidential Report of 29 January 1947 on French naval mission to Pattle Island from Captain Hennequin. handed to head of detail party 1. 8th division of advice-boats and Captain. with individual kit and weapons. Commander. 33 EM 3 Mar. together with the whaler to try it out. Ind of 23 January 47 Enclosures: Instructions from Major Delay. Radio link established with Nhatrang at 1600 hours. 69 EMP/TS of 22 January 47 Instruction N. Whaler then launch put to sea. Deputy to Colonel in command Nhatrang sector. Lighterage easy and tide favourable for coming alongside jetty.

Nevertheless. the detachment had 4. this senior officer and myself left the island. These Chinese seem harmless and are willing to lend a hand for a little food or simply in exchange for the right to pursue their activity. On our departure.CURRENT SITUATION OF THE ISLAND a. on mission on board.The water tanks seem to be in good condition. At present. 12 casks transported one by one in hold. The woodwork needs repairing. At 1600 short ceremony of hauling down the naval colours and hoisting the colours of the relief detachment. An assistant from the Aimed Forces Equipment Department has made a detailed examination. . They have a total capacity of some 200 cubic metres. Launch transported equipment and re-embarked naval detachment from jetty. There are some 15 Chinese living on the island where they earn their livelihood from fishing and collecting shells destined for China. including 2.The two wells providing slightly brackish water are in working order. Deputy to Colonel in command Nhatrang sector. ll) . southern beach.General situation The naval detachment reported that the situation had remained calm during its stay. having carried out a kit inspection and transmitted his instructions to head of detail party. At 1630. they could be observers in the pay of the Chinese Government. Robert Island is deserted. there is only a handful of fishermen with sampans.430 packs of 'Pacific' rations.The living quarters are dilapidated. lll) . Transport operations completed. they contain only 28 cubic metres of usable water. There are apparently also surface springs providing slightly brackish water. The shell of the buildings has suffered damage from shells and machine-gun fire. Junks apparently call in to collect what they have caught. 3. On Money Island. Major Delay.000 packs of iron rations and fresh water.Annex 34 233 Whaler rowed ashore. . . Slow but steady progress in choppy sea. b. 29 January Gradual improvement to fair weather. .Material situation l) .

repairs to shrouds on radio masts. which is empty.repairs to guttering and drainpipes. They permit the hauling up of a craft 15 metres in length. . . . The tower needs re-pointing and painting.provision of a canvas water container with a capacity of 10 cubic metres enabling rapid shipment of drinking water.4 metres in the beam and 1 metre draught (about 15 tonnes).repairs to rails on slipway. . These steps are listed in order of priority: . 6. Repairs to gas piping and reconditioning of burner.The maritime facilities need refurbishing but can still be used for docking of motorized craft the size of a launch from a large vessel subject to careful timing and observation of the tides (about 2 hours before to 2 hours after high tide).234 Annex 34 4. The launching cradle and its carriage are in good condition. . The two masts. is still standing. . 4.The lighthouse could easily be restored to working order. rotten and beyond repair. 2. . Its hauling winch is also broken. . 5. There is no longer any radio equipment from the former station or any meteorological observation instruments. Repairs to ladder and upper safety railing.structural repairs to buildings.URGENT REPAIRS REQUIRED A cursory examination of the present condition of the various facilities suggests some initial steps that might be taken to maintain a force of some 30 men in occupation of the island. Masonry on the slipway: 120 metres. One of the shrouds is missing from one mast and three from the other. The lighter Bourrasque which has run aground on the beach is holed. . .construction of narrow-gauge railway.MARITIME EQUIPMENT AND LINKS A station ship which could be hauled up the slipway (the solution opted for in 1938 incidentally) is all that could be supplied to Pattle Island.repairs to woodwork in living quarters. . 28 metres high.The radio and meteorological station currently consists of only an empty building with no doors or windows. are in good condition. there being no anchorage sufficiently sheltered from the fresh winds which blow very frequently on the island. 5. . Gauge: 2 metres. The shed for the meteorological instruments.

CONCLUSIONS Independently of all other considerations. 6.Annex 34 235 While the possibility of providing the island with a launch of about 15 tonnes which can be hauled up the slipway is under consideration. Regular operation of the lighthouse and the meteorological station would mean that our occupation could be seen . At that moment. This period would seem to be the one close to the spring tides. the distance from the east radio mast is 900 metres. The anchor held very well in a fresh wind. it would be useful as soon as possible to send a flat sampan to the island equipped with sail and outboard motor. . it would seem. b) .ANCHORAGE The Commandant Duboc dropped anchor at 155 some 800 metres from the lighthouse.and to a far from negligible extent . the depth of the sea at that point being 42 metres.as a form of international co-operation. This result. . The supplier must have motorized craft in excellent condition and equipped with gear properly designed for hauling up in choppy seas. This craft would be adequate for showing the flag and for surveillance of the neighbouring atolls. it seems to us that the substantial facilities built on the island by the Government General and their present state of conservation warrant sufficient effort being made to see that this island remains a possession of Indochina. A good mooring mark is the following: proceed in a northerly direction towards the centre of the house to the right of the post of the pontoon and drop anchor when in sight of the rock visible at 306. on a seabed of sand and shells. In our view. .HYDROGRAPHIC INFORMATION a) . with 4 lengths of chain in the water. Fresh supplies ideally need to be delivered during periods when the high tide occurs by day. could be achieved quite quickly without the need for great expenditure. and can then beach on the shore visible between the coral. the amounts needed being about 10 tonnes of provisions and 10 tonnes of water. which could easily be hauled up the slipway in its present condition.DOCKING Motorized craft can come alongside the slipway from 2 hours before to 2 hours after high tide. fresh supplies to the island will ideally be required once per month. 7.

Some circumstances might entail skilful negotiations in which imagination and finesse. Until such time as the water tanks are repaired and filled. dynamic. with a basic knowledge of naval matters. having organizational ability and a pioneering spirit. The island is an ideal spot climatically. experience has shown that the landing of fresh water in casks is a very heavy burden for the supplier.236 Annex 34 The present detachment will soon be in a position to transmit a daily summary weather bulletin to Nhatrang and Tourane. Where deliveries of fresh supplies by sea are concerned. allied to firmness. young. These casks have to be delivered either by rowing boat or motorized craft. a canvas water container with a capacity of 10 cubic metres needs to be delivered as soon as possible to the detachment occupying the island and kept there. we consider that command of the island should ideally be assigned to an officer from the regular army. The detachment currently has a total of 65 such casks. On a different topic. as well as diplomacy. Such a post would give an officer whose health has suffered from service in Indochina an opportunity to recover at the same time as performing a useful service to his country. (Signed) Hennequin . full of drive. would not go amiss.

But he will not allow men to disembark onto the jetty. that a cruiser is in these waters. He will explain to him that the island is a French possession. 2. 1.Annex 34 237 GUIDELINES ON CONDUCT REQUIRED While strictly carrying out the orders regarding defence. Make him understand that the island is a French possession and that it is strongly defended. 3. If the officer will not be persuaded. Only use force as a last resort. ask him for certain information: nationality. etc. If the officer insists. 'bluff for all you are worth': constant radio link with the Navy. If a launch is put to sea and approaches the jetty. Only permit a person of rank to alight from this craft. such as: a) A unit from a foreign power could drop anchor off the island. that it has a sizeable complement of men. offer him refreshment. Set the appropriate alarm procedures in motion. purpose of visit. the head of the detail party should courteously greet the officer on reconnaissance and ask him for certain information: nationality. b) A number of light craft appear off the island As in the first case. the Head of Detachment should stress the fact that the post is in constant radio contact with the Navy. 4. etc. courtesy and amiability. report back. where he hails from. signal to the effect that only one craft is authorized to come alongside. Immediately report this by radio to the Commander of Nhatrang sector. Do not permit anyone to venture further onto the island. Display a great deal of tact. etc. Keep the Commander informed. If the craft proceed towards the jetty. purpose of his mission. In other words. Set the appropriate alarm procedure in motion. Observe the vessel which has moored. where he hails from. Various circumstances could arise. He will not allow the officer to venture further onto the island. bluff to prevent any incident. Greet him courteously. cruiser . Convince people that the island is French. bloody incidents should be avoided. Observe the movements of the craft. In no circumstances should the head of the detail party agree to board an apparently unfriendly foreign vessel. then Tourane.

large complement of men. etc. 28 January 1947 Major Delay . NB: These instructions only cover important incidents.238 Annex 34 anticipated within a few hours. heavily armed. They are meant only as an illustration to indicate the spirit in which the mission assigned must be carried out.

298 in clear sent by diplomatic bag. appears to be contradicted by the information given by the Director for Europe of the Wai Kiao Pou* to Mr Roux during a general discussion he had with him yesterday. My colleague reiterated our position as set out by the Director for Asia of the Ministry of Foreign Affairs on 30 January (your telegram No. Mr Yeh. This information. he confirmed to him that. 99 in fine to the Counsellor of the Chinese Embassy) and he stressed the fact that the Wai Kiao Pou should give consideration to the formula which I have already suggested to him in accordance with the terms of your telegram No./. in fact drew my Counsellor's attention to the fact that the Wai Kiao Pou continued to be under strong pressure from (certain) Chinese departments to secure agreement from the French Government to withdraw the military personnel it has landed on Pattle Island.ANNEX 35 Telegram from Ministry of Foreign Affairs. 319-320 I refer to my telegram No. (Signed) Meyrier Note from the Cipher Department Telegram No. harks back to the 'instructions' which the Chinese Ambassador is said to have received from his Government with a view to 'negotiations' with the French Government regarding the case of the Paracel Islands. 160 and which is acceptable to both parties. 298 not yet reached the Cipher Department. according to the Chinese Government. Yet at the same time. announcing that two Chinese warships are to be dispatched to Woody Island. having spontaneously broached the question of the Paracels. this withdrawal was to precede any resumption of diplomatic talks aimed at an amicable settlement of the matter and at the conclusion of a special (joint) agreement. like that contained in my communication referred to above. Nanking. A further press article. * Wai Kiao Pou = Ministry of Foreign Affairs ./. 8 March 1947 No.

France has proposed that the matter be put to arbitration by the International Court of Justice in The Hague but this proposal was not accepted by China. Nanking. A motion for the return of Hong Kong to China was not adopted. The resolution relating to the withdrawal of all French forces from the Paracels states that China must protect its sovereign rights and step up the archipelago's defences. Among the main resolutions adopted was the immediate return of Macao to China and the withdrawal of French forces from the Paracel Islands. . 'by force' if necessary. The Council also decided to protest to France at the discrimination allegedly suffered by Chinese nationals in Indochina. The Ministry of Foreign Affairs declined to comment on this decision by the People's Political Council. Both France and China are known to claim sovereignty over the Paracel Islands and to have dispatched troops there. 31 May 1947 The People's Political Council this morning adopted some 60 resolutions mostly marking a hardening of the Government's attitude and a more nationalistic stance./.ANNEX 36 Wire from Agence France Presse. of 31 May 1947 and telegram of 3 June 1947 FRANCO-CHINESE RELATIONS Nanking.

Annex 36 241

TELEGRAM Nanking, 3 June 1947 I feel it my duty to transmit to you, for information, the following text of a motion on the Paracel Islands tabled on 31 May in the People's Political Council: 'In order to rebuild the Paracel Islands and strengthen the defence of our country, we call upon the Government to guarantee our sovereign rights with all its might, to precisely delimit our frontiers, to promote national defence and to reward the servants of China, who have placed all their energies at the service of recovering this territory'. As the account by the Agence France Presse correspondent in Nanking of this motion submitted to the People's Political Council, among 60 other motions relating to national defence and Chinese foreign policy, was partly inaccurate, I was anxious give you the exact text./. (Signed) Sivan

ANNEX 37 Telegram, Saigon, 25 January 1951 No. 153 to 155-Urgent Re: Your telegram No. 60 of 13 January. Firstly: French presence in Paracel Islands is still confined to Pattle Island, the only habitable island in the western group. Secondly: It cannot be certified that there is no Chinese occupation of Woody Island, the only habitable island in the eastern group. In fact, to avoid incidents with Chinese Governments, instructions issued, both to successive garrisons on Pattle Island and to naval forces, have always limited our action regarding the eastern group to mere reconnaissance and especially airborne missions, which were necessarily imprecise. Thirdly: Results of these reconnaissance missions as well as fact that a Chinese garrison could not subsist on Woody Island without periodic supplies which could not go unnoticed, suggest that this island has never been permanently occupied. On the other hand, seasonal fishermen from Hainan Island probably put into Woody Island for short stays. Fourthly: Pattle Island was reoccupied by a French garrison in late 1946. As approach to island by seasonal fishermen, now Communist in allegiance, could provoke incidents, it was decided in October 1950, in order to avoid any possible dispute with Peking Government, to station a wholly Vietnamese garrison on Pattle Island answerable to the Central Annam Government./. (Signed) Haussaire

ANNEX 38 Note from the Legal Department, Paris, 6 September 1946 Re: French sovereignty over the Paracels A. BACKGROUND TO THE PROBLEM The telegram from Admiral d'Argenlieu reports that a naval reconnaissance mission has been carried out in the Paracel Islands off Indochina, and that the French Navy intends to set up a duty station there. The Admiral asks what our rights over the Paracels are and what steps have been taken in the past to gain recognition of them. B. GEOGRAPHICAL AND HISTORICAL DATA a) Situation of the islands The Paracel Islands extend from longitude 110° 10' to 112°45' E. They lie 490 kilometres from Hue (Annam) and 350 kilometres from Yulinkiang, a port on the southern coast of the Chinese island of Hainan. The islands, some large and some small, are about 20 in number. Most of them are sandbanks, the others, about a dozen, are formed of rocks; eight are truly islands. For a long time, these islands appear to have only been frequented, and then intermittently, by fishermen from Annam or China taking turtles and coral. On one of them, Woody Island, a Japanese colony had settled, engaged in mining guano, and was reconnoitred by our advice-boat Savorgnan de Brazza. b) The historical rights of Annam The first reference to the Paracels appears to be in the annals of the Court of Hue, where it is stated that, in the year 1700, a company was set up to harvest the produce of the sea in the archipelago each year. This maritime activity continued, more or less intermittently. Then, in 1816, Emperor Gia Long decided to annex the islands to Annam. c) The Franco-Chinese dispute In 1909, however, the Cantonese authorities dispatched two exploratory missions and raised the Chinese flag on the islands. In 1920, they proceeded to administratively attach the Paracels to Hainan Island; in 1930, they decided to exploit them. The Chinese claims were disputed by the French Government, acting on behalf of Annam, its protectorate. On 18 February 1937, in a note to the

244 Annex 38

Chinese Embassy, France proposed an amicable settlement or, failing this, a settlement by arbitration. This proposal was not followed up and sovereignty over the islands remained in dispute. In 1938, France decided to occupy the islands. Yet this occupation was carried out with the consent of China, then at war with Japan, and therefore preferring possession of the islands by a friendly government. It was understood that the rights of the two parties were reserved. d) The Franco-Japanese dispute Japan challenged the French occupation of the islands without putting forward any strictly legal argument, confining itself to vague assertions, sometimes that the Japanese colony established on Woody Island had been there for 60 years - which militated in favour of the acceptance of Japanese sovereignty by virtue of prior occupation - or else that the islands were under Chinese sovereignty and that Japan was at liberty to take the war there and occupy them. C. LEGAL SITUATION As Japan is now out of the picture and as its titles are even more questionable than China's, the question arises as to whether we are justified in asserting our rights over the archipelago and, if so, how. a) Annexation of the Paracels by Annam in 1816 This annexation, even without effective occupation, seems to have been carried out in conformity with the international law of the time. The annexation therefore conferred legal title on Annam. However, it is certain that, with the advent of modern principles, this annexation was no longer adequate. France acting on behalf of Annam as a protectorate cannot now oppose the appropriation of a res derelicta by a foreign power.1 b) Indecisive Chinese moves towards appropriation However before this can happen, it must first be possible to consider the territory formerly occupied as res derelicta and the foreign power must have complied with modern international law. On the latter point, China would not appear to have done more than assert its claims; it would not appear to have gone as far as actual occupation. The rights of Annam thus still hold sway; there has been no interruption in them.

1

Precedent of the Caroline Islands, mediation by Leo XIII.

Annex 38 245 c) The French occupation of 1938 If the Paracels had been res nullius, this occupation could not have conferred legal title on France, since at the time the Chinese Government formally reserved its rights. However, in these islands - unlike the Spratlys - it is the rights of Annam and not her own rights which France is asserting; and these rights are based, not on the occupation, but on the historical titles of Annam. In now occupying the Paracels, France is doing no more than confirming these titles, complying with the requirements of modern international law. d) Annam's vassalage to China China's argument that, Annam being in 1816 a vassal of China, to which it paid tribute, Annam's annexations passed to China, cannot be accepted for the reason that, although subordinate to China, Annam constituted a separate legal entity. D. NECESSITY TO REAFFIRM ANNAM'S RIGHTS It would seem that, despite the presence of a Japanese company equipped with arms, the French occupation continued until 9 March 1945, the date on which the native guards - in all likelihood Annamese quit the archipelago.2 The French occupation would appear to have ceased since that date. It needs to be re-established in order to avoid all difficulties which the intervention of a foreign power in the islands could only engender. Yet there can be no question either of a unilateral annexation, like that of the Spratlys, which resulted in a notification to the Official Gazette or of making provision for this annexation in the peace treaty. As the Paracels belong to Annam there is no reason for us to seek another legal title. As to whether it is appropriate to include Japan's withdrawal in the peace treaty, as with the Spratlys, consideration should be given to this in due course. Incidentally, when the Paracels are re-occupied, a certain amount of publicity will be required in order to provoke a reaction from the Powers and ensure that the rights of Annam are solemnly recognized. Among the countries from which a reaction can be anticipated is China, which should ultimately be offered arbitration proceedings in the event that amicable recognition of Annamese sovereignty cannot be secured. The choice of arbitration tribunal should be determined by the manner in which the question is raised.

2

Telegram of 3 June 1945 from Admiral d'Argenlieu.

246 Annex 38

In view of the Agreement of 6 March 1946 between France and Vietnam, consideration must be given to the question whether Annam should be involved, in one way or another, in the re-occupation of the Paracels. Prior consultation with the Vietnamese Government would have a number of practical drawbacks; also, it is not possible to hoist the Annamese flag without the participation of representatives of that Government. As the Agreement of 6 March only recognized Vietnam as possessing rights of domestic sovereignty, its external status being left in abeyance, the situation has not changed. It is for France, on behalf of Annam, to assert its rights in the wider world, France is therefore justified in re-occupying the Paracels on behalf of Annam. It goes without saying that, if there is any reaction from Annam, it will be possible, after the event, to involve it in the operation on the basis of the external status it will be granted./.

ANNEX 39 Letter of 7 May 1951 from the Minister of State with responsibility for relations with Associated States to the Minister for Overseas Territories Re: Spratly Islands I have the honour to transmit herewith a letter dated 24 April 1951 by which Mr Edouard F. Miailhe, a French citizen, residing in the Philippines, requests permission to travel to the Spratlys in order to prospect the phosphate resources this archipelago may harbour and also that he be granted a concession as and when appropriate. The request by Mr Miaihle regarding, among other things, the possible granting of a concession in the Spratlys, raises the problem of the authority with the power to grant him such a concession and therefore of the legal status of these territories in the French Union. Since 1933, when the French Government effectively took possession of the Spratlys on behalf of France and up to the present day, these islands were included, for administrative purposes, under the former Government General of Indochina to which they had been attached. Political developments since then in the former Indochinese Federation and which resulted in the replacement of the latter by the three new Associated States have in no way prejudiced France's rights over this archipelago. Indeed, at no point in its history did the former Empire of Annam make any claim to these territories, which, furthermore, it has never occupied; and the fact that the Spratlys were for a time attached to Cochin China simply for administrative convenience cannot be relied on by the new State of Vietnam as justification for rights it never possessed. The dismemberment of the former Indochinese Federation in favour of the three independent States of Vietnam, Cambodia and Laos on the other hand raises the problem of the status of the Spratlys. For these islands cannot remain attached to Cochin China which now no longer comes under French sovereignty; nor can they fall under the political entity 'French Indochina', which has ceased to exist; unless it is considered, in this particular instance, that the French High Commissioner in Saigon should retain the administration of these territories within his powers, it would appear, subject to any observations a legal adviser might find it appropriate to make on this point, that the Spratlys should now come under the French Department of Overseas Territories, on the same basis as other French territories in the Pacific. If this

248 Annex 39

principle is accepted, the fact remains that, owing to the strategic position of the Spratlys, the French representative in Indochina should be consulted before any steps whatever are taken regarding these islands. If you share this view, I should be obliged if you could have your competent technical services study what action could be taken on the request by Mr Miailhe. For my part, I am asking the French High Commissioner in Indochina to let me know whether he can see any reason why this request should not be granted as and when appropriate. I shall not fail to keep you informed of the reply from General de Lattre. (Signed) Jean Letourneau

The only resource is guano which.Geographical position of the Spratlys (see enclosed map) The Spratlys is the name of a group of islands situated in the South China Sea. General Commissioner of France and Acting Commander-in-Chief in Indochina. 2 . Jacques. Itu-Aba Island. 3 . 16 June 1955 No. and which essentially includes Spratly (or Storm) Island and Itu-Aba Island.The Vietnamese Ministry of Public Works has sounded out the French authorities in Saigon about a possible visit to the Spratlys by an economic mission. some 300 nautical miles east of Cape St.Background Previously res nullius. prior to World War II. Position of Spratly Island: latitude 8°40' N. which is 1. Itu-Aba lies 840 kilometres east of Saigon and 600 kilometres from the coast of Annam. longitude 111 °55' E Position of Itu-Aba Island: latitude 10°22'N. Itu-Aba was administratively attached to Cochin China in 1929. to the Secretary of State with responsibility for relations with Associated States Saigon. 1 . Spratly Island. which is 1. The official taking of possession was effected by the . 3958/SPD/AFG Re: Sovereignty over the Spratly Islands (Spratly Island and Itu-Aba Island) Enclosure: map.000 metres in length. was mined by a Japanese company. is flat and uninhabited. The question of sovereignty over the Spratlys is therefore likely to be raised.300 metres in length.ANNEX 40 Letter of 16 June 1955 from General Jacquot. These two islands are separated by a distance of 180 nautical miles. is also flat and uninhabited. longitude 114°21' E As the crow flies. This is why I think it might be helpful if I set out in this letter the historical and legal background to the problem of sovereignty over the Spratlys and if you could let me know what the views of the French Government are on this matter.

the Government of the Philippines manifested the desire to refer the fate 'of certain islands claimed by France' to the United Nations.The report of the visit was buried in a cement boundary-marker erected on this occasion. The Chinese Nationalists had no option but to fall into line.Foreign designs on the Spratlys PHILIPPINES In 1946. 4 . the Spratlys belong to the nearest territory.by the Astrolabe in 1933 . He reportedly obtained a prospecting permit from the French Department of Overseas Territories but subsequently abandoned the idea. the Chinese press published articles stating that 'the People's Republic of China will never allow the Spratlys or any other island belonging to China to be seized by a foreign power'.by the Chevreuil in 1946 . reportedly declared that the Spratlys. The island has been visited: . President Quirino said that 'according to international law. CHINA In 1950. made plans to send a mission to Itu-Aba to investigate the prospects for mining guano.An aerial reconnaissance of the island was made in 1951.250 Annex 40 Malicieuse on 18 April 1930 and notified to the Official Gazette on 26 May 1933.by the Dumont d'Urville in 1938 . A French meteorological station was apparently set up there in about 1938. A note dated 6 December 1946 from the Legal Department of the Ministry of Foreign Affairs asserts that there is no disputing the ownership of the Spratly Islands by France. which had previously been attached to Cochin China. The same year.by the Commandant Robert Giraud in May 1955 . . which is that of the Philippines'. should now be considered Vietnamese territory. Colonel Soriano. In 1950. . a Filipino business magnate. Itu-Aba was occupied by a detachment of the Native Guard of Cochin China from 1938 to 1940. VIETNAM Tran Van Huu. President of the Government.

However. titles and claims to the Spratlys. it can be accepted that French sovereignty over the Spratlys is beyond dispute.Present situation Despite the designs on the islands referred to supra. drafted by the French High Commissioner in Indochina. and addressed to H.M. Indeed. by the Treaty of San Francisco of 8 September 1951 (Article 2(f)). In reality. states that 'the Paracel and Poulo Condor Islands fall under Vietnamese territorial sovereignty'. strategically they may become important in future. but remains silent on the subject of the Spratlys. as was the case with numerous atolls in the Pacific during operations against Japan between 1942 and 1945. it is possible that Vietnam's claims to the Spratlys may assume more concrete form on the pretext that the islands were previously attached to Cochin China. there are therefore no restrictions on France's freedom of action to reserve her rights on the Spratlys. Bao Dai. situated close to one of the crossroads of navigation in south-east Asia. were a French oceanic base to be maintained in Indochina. They might also have a role to play in the commissioning of new weapons such as guided missiles or short takeoff aircraft. it should be noted that the secret Agreement dated 15 March 1949. Legally speaking. Lastly. Japan renounced all rights. that was a purely administrative attachment and nothing obliges us to cede to Vietnam rights previously asserted on behalf of France. Nevertheless. commenting on the Agreements of 8 March 1949. as radar stations or as temporary bases for air and naval personnel. it is conceivable that these islands. . 6 .Conclusions While the Spratlys are of little interest from the geographical and economic angle.Annex 40 251 The Japanese disputed our rights to the Spratlys during World War II. In this connection.1 5 . during periods of hostilities. could be used. the Spratlys would constitute the maritime advance post of this base and would thus be of manifest strategic interest. ** * 1 And also to the Paracels.

I consider that. with an eye to the future. May I request you to let me know whether this is indeed the French Government's position./. may I ask you to let me know what attitude to adopt. at my level. should Vietnam's claims to the Spratlys be asserted.252 Annex 40 For these reasons. In particular. France's rights over the Spratlys must be maintained. (Signed) Jacquot .

that you will order an investigation and communicate the findings in your reply.W. At 1700 hours. registration A. from the Headquarters of the 4th Chinese naval base. The garrison would also ask the French Consulate to inform the French authorities that it wishes to receive advance notice of any future visits by French warships in order to avoid any misunderstanding. inspecting the coast of the island as far as the south-eastern sector. On the morning of the 26th.. which states. No.ANNEX 41 Letter dated 29 April 1949 from the Special Delegate of the Wai Kiao Pou* to the Provinces ofKwangtung and Kwangsi to the French Consulate in Canton concerning the reconnaissance of an island in the Paracels by a French warship.O. I have just received postal telegram No. among other things: On 25 April at 1500 hours. dated 28 April 1949. I saw a green rocket in the south-west. 3863. I again caught sight of the suspect ship slowly heading north-west. gunboat A. headed off in a south-westerly direction and departed. At 1930 hours the same day. then decided to sail along the coast. it proceeded in a southerly direction. Seal of the Special Delegate of the Wai Kiao Pou* (Signed) T. 0427 Sir. Kwok * Wai Kiao Pou = Ministry of Foreign Affairs . Passing west of the island.O. I hope you will kindly note this. the garrison on this island became alarmed and asked me to request your Consulate to investigate this uncalled-for interference and to let me know the purpose of the mission by French gunboat A. It dropped anchor at 1. approached Lin Island ( ) in our Paracels archipelago.O. French gunboat.500 nautical miles (?) from the island. Having established that the visit and reconnaissance by this French ship were unscheduled.

. yet it was not until October 1937 that a lighthouse. At a distance of some 3.DESCRIPTION AND IMPORTANCE The Paracels archipelago is situated east of the coasts of Annam. from the French Minister for Overseas Territories to the High Commissioner in Saigon. on 19 January 1947. reefs and shoals. the military authorities attached a certain strategic importance to the Paracels. were rebuilt by us in late 1947.800 metres long and 1. In a letter of 22 October 1946. Before World War II. The Paracels consist of some 30 islets. the advice-boat Tonkinois sailed from one island to the other in 3 hours and 20 minutes. As early as 1899.5 kilometres south-west of Pattle Island lies Robert Island. 490 kilometres on average from Hue and south-east of Hainan. distributed around Pattle Island. b) the Amphitrites. which can be mined. Governor General Doumer recommended that a lighthouse be built in the islands. As the crow flies. if the . instructed to reconnoitre the area on 28 February 1937. Mr Moutet said that. formally concluded that France 'must not tolerate any foreign settlement in the archipelago'. which is 1. Before World War II. 87 kilometres separate Pattle Island from Woody Island. These islands and reefs are a constant danger to major shipping lanes. and a radio and weather station. there are phosphate and guano deposits. the southern port of that island. falling into two groups: a) the Crescent group. grouped around Woody Island. a flock of 300 sheep was put out to graze there to provide a supply of fresh meat for the detachments on Pattle Island and Woody Island. though this process is problematic. which is 850 metres long and 400 metres wide. 350 kilometres from Yulin. The archipelago has no fresh water and vegetation is sparse. were constructed on Pattle Island. the staff of the cruiser Lamotte-Picquet.ANNEX 42 Note of 15 May 1950 from the Directorate for Asia-Oceania Re: Paracels archipelago I.200 metres wide. These facilities. which were destroyed during the war in the Pacific.

In December 1898. in June 1899. that they were not administratively attached to any Chinese district and that no special authority was responsible for policing them. that they belonged neither to China nor to Annam. and of the Japanese cargo ship Imegu-Maru. according to the military authorities themselves and according to the current defence plan of Indochina. Doumer. a French citizen requested information from the Ministry of the Colonies on the possibility of setting up stores selling provisions on the islands. it was nevertheless of the utmost importance that any moves towards occupation by a foreign power of these lands which commanded access to the future base of Cam-ranh should be prevented. at their instigation. in 1896. 2.Annex 42 255 Government was not planning to set up a military base in the Paracels. The Governor General of Indochina. the British Minister in Peking and the British Consul in Hoihow intervened with the Chinese authorities in Hainan asking them to have the copper impounded. For example. radios. The mandarins protested. the safety of which would be substantially enhanced in these dangerous waters if the archipelago was properly equipped with lighthouses. Chinese fishermen looted the cargo of copper which the ships were carrying and attempted to resell it. TAKING OF POSSESSION BY CHINA (1909-1932) [date unclear] In 1907. the Viceroy of the Two Kwangs was anxious to . that this project had no chance of success and the matter ended there.PROBLEMS OF SOVEREIGNTY 1. This attitude certainly changed subsequently. It now seems to be agreed that the occupation of the Paracels can serve no useful purpose other than for air and maritime navigation. NEGATIVE ATTITUDE OF CHINA AND FRANCE UNTIL 1907 Following the sinking of the German ship Bellona in the Paracels in 1895. II . replied. the High Commissioner's diplomatic counsellor wrote to the Ministry on 2 June 1947 that. even though it was preferable that no foreign power should gain a foothold there. possession of the Paracels held no strategic importance. following Japanese claims on the Pratas Island group (325 kilometres south-east of Hong Kong and 435 [figure not clear] kilometres south-west of Formosa). consulted by his Ministry. The insurers refused and. to the British insurance company. Mr. alleging that the Paracels were abandoned. at half its value. radar. and even landing strips.

Captain Rimy. the Governor General of Indochina. in 1816. Minh Mang. including the Paracels. No doubt as a consequence of this officer's careless reply. Mitsui Bussan Kaisha. These rights were allegedly based on: a) the report in the annals of the Court of Hue of the creation. asked Saigon for information on the 'nationality* of the Paracels. He transmitted this news. an order of 20 March the same year. a Japanese company. a Chinese mission explored the archipelago and concluded that the phosphate deposits could be mined. in 1835. A company was to be set up in Kwangtung for this purpose. In 1920. The Commander of the Navy. it appeared to be satisfied with the guarantees given by these Agreements. Gia Long. the civilian Governor of Kwangtung published in the Province's Official Gazette. b) the solemn taking of possession of the archipelago by the Emperor of Annam. in about 1700. In late March 1909. by which the heads of the military government of this Province decided to administratively attach the Paracels to the sub-prefecture of Yai Hien (Hainan Island). dated 2 April 1921. replied that the archipelago was not under French sovereignty. announced that the Provincial Council of Kwangtung had adopted a resolution for the mining of the guano deposits in the Paracels. 3. In early 1909. of an Annamese company which each year harvested fishery resources in the Paracels.256 Annex 42 claim for China sovereignty over the groups of islands situated off the Chinese coasts. The French Government did not lodge any protest and appeared to recognize Chinese sovereignty over the Paracels. at the same time declaring that France had never ceased to assert the historical and geographical rights of the Empire of Annam over these territories. Mr Pasquier. The plan by a Chinese company to mine the phosphates never bore fruit. . it held that the attachment of the archipelago to Hainan entailed the application to this group of islands of the clauses in the 1897 and 1898 Treaties aimed at prohibiting the cession of Hainan to a third power. an official Chinese mission solemnly hoisted the Chinese flag on two of the largest islands and a 21-gun salvo was fired. c) the building of a pagoda and the erection of a monument by the Emperor of Annam. CONFLICT OF SOVEREIGNTY RAISED BY FRANCE (1932) By telegram 501 of 14 March 1930.

The Chinese claims were disputed by the French Government acting on behalf of the Protectorate Annam. while those of China were recent yet frequently displayed. in a Note to the Chinese Embassy. In view of the practical risk French activities in the islands would incur. the date is uncertain). * Wai Kiao Pou = Ministry of Foreign Affairs . This proposal was not followed up and sovereignty over the islands remained in dispute. OCCUPATION BY FRANCE (1937-1945). but that our position could be reinforced by discreet acts of sovereignty. as the Chinese had put the mining of guano in the Paracels up for tender. The Chinese reply of 29 September 1932 rejected the French assertions and proclaimed China's own rights. 4. A mission was dispatched to the islands from 22 to 30 October 1937 and erected the Pattle lighthouse. built some stone cairns on the principal islands. Numerous Notes were exchanged subsequently between France and China on this subject. the advice-boat Savorgnan de Brazza reported that Japanese civilians were occupying Woody Island. our case would be somewhat shaky in the event of arbitration. In March 1938. the advice-boat Marne. In March 1932. for example. Hence. consulted on two occasions (19 June 1930 and 3 March 1931) considered that the rights of Annam were ancient but insufficiently exercised. the French Minister addressed a note of protest to the Wai Kiao Pou* on 29 April 1932. Among the many arguments put forward by the Wai Kiao Pou* was the fact that Annam had been a vassal of China at the time when Emperor Gia Long had manifested his desire to annex the archipelago. arbitration. attaching a copy of the Note of 4 December 1931. as Mr Basdevant advised. he considered. In February 1938. failing that. CHINA MAINTAINS THE PRINCIPLE OF ITS SOVEREIGNTY (1938) The cruiser Lamotte-Picquet reconnoitred the archipelago on 28 February 1937 and reported that the islands were deserted. the French Government proposed an amicable settlement or. On 18 February 1937.Annex 42 257 The Ministry's legal adviser. it was simply decided to assert our rights in a diplomatic Note. which was handed to the Chinese Legation in Paris on 4 December 1931 (or 4 January 1932. Our reconnaissance and other missions were stepped up.

radio and meteorological station. a handful of coolies. Japan confining itself to vague assertions. 1 Annamese doctor. personnel: 1 French inspector and 1 French doctor. in June 1938. 2 large stone buildings. barracks. on 9 March 1945. A flock of 300 sheep put out to graze on this island provides a supply of fresh meat. On 1 July 1939. The same Note very firmly reasserted the principle of China's sovereignty over the Paracels.which militated in favour of Japanese sovereignty by virtue of prior occupation . Through its Ambassador in Paris. The islands were uninhabited. It was to be re-embarked by the Savorgnan de Brazza on 7 June following. AFTER THE JAPANESE CAPITULATION: RECONNAISSANCE MISSION TO THE PARACELS BY THE FRENCH FRIGATE ESCARMOUCHE (20-27 May 1946) Admiral Thierry d'Argenlieu dispatched the frigate Escarmouche on a reconnaissance mission to the Paracels from 20 to 27 May 1946. in a Note of 18 July 1938. As Japan is now out of the picture. From 1938 to 1945. 5. the Chinese Government. 150 coolies.or else that the islands were under Chinese sovereignty and that Japan was at liberty to take the war there and occupy them. b) Robert Island: 10 native guards. a handful of coolies. 30 native guards.258 Annex 42 Lastly. it would be prudent to include in the forthcoming peace treaty a clause by which Japan expressly renounced all its claims to the Paracels. . the dispute has lapsed of itself. The French occupation was apparently to end in uncertain circumstances at the time of the Japanese attack on Indochina. FRANCO-JAPANESE DISPUTE (1938-1945) Japan challenged the French occupation. the Government General of Indochina embarked on the wholesale effective occupation of the Paracels. took note of the assurance it had received from the Ministry of Foreign Affairs 'that in no manner was this action intended to affect the respective legal positions taken by China and France regarding the sovereignty of these islands or to be prejudicial to a satisfactory settlement of this question in the future'. 6. 2 Annamese radio and meteorological operatives. Half a section was put ashore on Pattle Island. 20 native guards. c) Woody Island: radio. there was no report of any local incident between the French and the Japanese. even though no strictly legal argument was put forward. the French occupation was displayed as follows: a) Pattle Island: lighthouse. However. 1 infirmary: personnel: 1 senior French inspector. sometimes that the Japanese colony established on Woody Island had been there for 60 years .

Mr George Yeh. our Ambassador in China reported that the Chinese press had announced the departure of a Chinese detachment bound for the Paracels to occupy the islands 'to control piracy'. he would not be able to proceed with the effective occupation of the islands before 15 January 1947. The militia post set up there in 1938 therefore needs to be re-established. the High Commissioner telegraphed that. the United States of America and the United Kingdom of the fact. the French Minister for Overseas Territories wrote to our High Commissioner in Saigon: 'It is of the utmost importance that any hint of occupation by a foreign power be prevented. a telegram from Saigon stated that the setting up of a permanent station had not yet received the go ahead. this mission marked the re-establishment of French rights.' On 23 November 1946. for technical reasons.Annex 42 259 In a letter from Admiral d'Argenlieu to the Chief of Staff of National Defence. 7. On 13 (?) January 1947.. as these islands (the Paracels) command access to the future base of Cam-ranh. c) French protest. our Ambassador handed a Note to the Wai Kiao Pou* expressing 'the strongest reservations regarding the legal consequences of the occupation of the Paracels by Chinese forces' and recalling the earlier proposals by the French Government for an amicable settlement or for arbitration. our High Commissioner wrote: 'Of itself. spokesman for the Ministry of Foreign Affairs. REOPENING OF THE DISPUTE OVER SOVEREIGNTY BETWEEN FRANCE AND CHINA a) French hesitation. b) Announcement by the Wai Kiao Pou* of the occupation of the Paracels by Chinese troops (7 January 1947). I am reserving the possibility of unofficially informing the local representatives of China. On 26 November 1946. * Wai Kiao Pou = Ministry of Foreign Affairs . On 12 December 1946.' On 22 October 1946. announced on 7 January 1947 that 'the Chinese Government has reoccupied the Paracels and that the Chinese flag once again flies over these islands which have never ceased to belong to China'. Meanwhile.'. on 11 June 1946. On 16 September 1946. the French Minister for Foreign Affairs wrote to the Secretary General of Indochina: 'I think it would be expedient to re-establish a duty station in the Paracels in order to assert our rights there.. the Ministry urged the French Ministry of Overseas Territories to land some troops on the islands without delay. At a press conference in Nanking.

The Wai Kiao Pou* did not oppose this suggestion. The French commander invited the Chinese commander to evacuate the island. offering to take him on board. the advice-boat Tonkinois severed contact on 19 January 1947 and. On 29 January 1947. that Pattle Island was uninhabited. to a definitive solution of the Franco-Chinese dispute. having established. together with his detachment. Thereupon. The talks were fruitless. the Nanking Govern ment immediately turned this ultimately unimportant matter into an issue of national prestige and blew it up out of all proportion into a major incident. and to return them to Tourane. After telegraphing Nanking and requesting instructions from his government.260 Annex 42 d) Mission by the advice-boat Tonkinois to Woody Island (17 January 1947): the island was effectively occupied by a Chinese detachment: continuation of the mission to Pattle Island. The Ministry therefore came up with various (for China) face-saving formulas designed to lead. Either because the conduct of the commander of the Tonkinois was inept or because the Chinese commander. The talks in Nanking on this matter had serious drawbacks owing to the intransigence which the Wai Kiao Pou* claimed was imposed by Chinese public opinion. a French detachment was installed there (19 January 1947). On 4 July 1947. the Chinese commander declined the offer. through arbitration. the advice-boat Tonkinois. apart from highlighting the strong prejudice which the very principle of recourse to arbitration met with on the part of the Nanking Government. misrepresented the action of the French officer on Woody Island in his report. uninhabited. e) Diplomatic incident between France and China (January 1947). the Ministry therefore proposed that the talks be transferred to Paris. on arriving on 17 January 1947 off Woody Island. in fact found Chinese troops already installed there. new proposals were put to the Chinese Embassy in the context of a 'plan for the simultaneous settlement of the principal questions * Wai Kiao Pou = Ministry of Foreign Affairs . it protested against the French naval operation in the Paracels with extraordinary vehemence and asserted in a welter of publicity that the islands were definitively under its sovereignty. wittingly or unwittingly. The operation aimed at resuming the occupation of the Paracels having been so unhappily delayed. yet it was not until 25 February 1947 that the Ambassador initiated the talks laying down the evacuation of Pattle Island by the French detachment as an essential condition. landed a detachment of 20 men there. the same day. f) Fruitless negotiations in Paris (February-July 1947).

Our Consul in Taipei confirmed this information on 11 May. It was also reported that Nationalist troops fleeing Hainan had tried to seek refuge in the Paracels. the case of the Paracels was no longer mentioned. g) Abatement of the conflict (1948-1950). our station on Pattle Island has so far noticed nothing. CHINESE NATIONALIST ACTIVITY (evacuation of Woody Island?) The Ministry has no precise information on the activities of the Chinese Nationalists in the Paracels. * Wai Kiao Pou = Ministry of Foreign Affairs . 6 and 7 May 1950) reported that a flotilla of Communist junks had left Hainan in the evening of 6 May to 'liberate' the Paracels. today declared that the small Nationalist garrison and naval units based in the Paracels were pulled out last month'. III . However. and probably owing to the worsening situation of the Nationalist regime at home and abroad. Subsequently. before disbanding for two years. called upon the Government in April 1948 'quickly to put an end to France's possession of the Paracels'. 'General Chu Chi-ju.PRESENT SITUATION ( 15 May 1950) 1. Canton having subsequently fallen into the hands of the Communists in 1949. reproducing an Associated Press wire published in Taipei on 8 May 1950. the tension subsided appreciably. 2. 345). apart. that is. The Chinese detachment remained on Woody Island while the French detachment was kept on Pattle Island. in a purely symbolic motion (No. acting chief of staff. the provincial delegation of the Wai Kiao Pou* announced the appointment of an 'administrator' for the Paracels. COMMUNIST CHINESE ACTIVITY Unconfirmed press information (Reuter and United Press. the Chinese National Assembly. from a collection of unidentified junks around Robert Island (Crescent group) on 7 May. At an audience granted by Chiang Kai-shek to our Ambassador in May 1947. These proposals fell on stony ground. In May 1949.Annex 42 261 pending between France and China on the basis of mutual interest'. According to a telegram of 10 May 1950 from our Consul in Hong Kong. the General recalled the importance China attached to the Paracels and indicated that this problem was of particular concern to him.

/. which extended our regional air control to longitude 115° E. of referring the matter to the Inter national Court of Justice. the Department of French Overseas Territories has not yet issued instructions on this matter. has been serviced since October 1947 by the civilian meteorological service of Indochina. Conflict of sovereignty. 2. It requested the advice of the Ministry of French Overseas Territories on this matter and asked for instructions regarding how to react both in the event of a deliberate attack on Pattle Island and also in the event of the occupation by the Communist Chinese of the other islands in the Crescent group. QUESTIONS PENDING 1. for France or Vietnam. The Ministry's legal adviser has been asked to state his opinion on the possibility. in the event of an attack. a ship from the French Navy visits the island once or twice each month. FRENCH ACTIVITY A French detachment is still stationed on Pattle Island. The conflict of sovereignty has still not been resolved. This solution was adopted in the context of international agreements on air security in the wake of the preparatory conference in Saigon on 29 September 1947. to defend the meteorological station to the bitter end. The radio and telegraph post. . It consists of 2 officers. 10 French nationals and 17 Vietnamese.262 Annex 42 3. To date (15 May 1950). our High Commissioner in Saigon reported that the garrison was now under orders. On 8 May 1950. IV. Defence of Pattle Island. originally serviced by military personnel.

Annex 42 263 .

264 Annex 42 .

will unquestionably become harder and harder to prevent. This was demanded not only by the success of delicate negotiations. Nevertheless. it seems to me absolutely essential. The result of our efforts was merely to prevent the exchange of letters from expressly mentioning the fact. was aimed at the Vietnamese and intended to revive the somewhat lukewarm enthusiasm over the Agreement of 8 March. the text of which has not been published. I would point out that it was not the French negotiators of the Agreements of 8 March who drew the attention of the Vietnamese either to the position of the Paracels or to the situation of Poulo Condor Island. I shall send Prince Buuloc some observations on the discretion which is called for in diplomacy. which I repeat is personal to me and may at any time be disclaimed by the French Government should it see fit. had been given. Once this assurance. but such incidents. This lecture. but also by respect for Indochinese tradition and honesty. I shall support the Vietnamese position. I agree that this event was inopportune. but that it was the Vietnamese negotiators. His Majesty Bao Dai's directeur de cabinet.ANNEX 43 Telegram of 23 April 1949 from Saigon The article you refer to is a summary of a lecture given in Saigon by Prince Buuloc. while asking it to agree to limit its diplomatic freedom./. On the substance of the question. . who insisted on raising it specifically. the very consequences of the new status of the Indochinese States. in this dispute. when it has only just joined the game. it could not be withdrawn. an advance copy of which I had not requested at the time Vietnamese independence was proclaimed. Since in the French Union we are conferring associate status with France on a country. considered the Paracels to be a crown dependency of Annam and that. following in the footsteps of the former Government General. I personally had to affirm to His Majesty Bao Dai that this High Commission. and did so of their own accord. not to tell it that we refuse to support national claims whose merits we have accepted for years. highly competent lawyers.

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