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.

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. banks and rocks.resource (except in the case of uncontrolled exploitation which would lead to the local disappearance of certain species) is that of the marine fauna. See the list of islands in Annex 4. . Trawl fishing (which would offer a high return) hardly seems possible owing to the chaotic and jagged coral seabed.7 The respective claims will be studied and 6 7 See Chi Kin Lo. And a harbour was built by the Chinese Navy on Triton Island in 1982.000 square kilometres of water (over ten times bigger than the Paracels). Its northern limit is latitude 12° north and its eastern limit longitude 111° east. though much further south than the Paracels. 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. 118. Routledge. and the total surface area encompasses almost 160. Chinese activities throughout the archipelago have intensified. does not seem to have been borne out.Background Information 19 occupied by China since 1956) found that there were still major phosphate reserves left. The Case of the South China Sea Islands (London. 1989). and many rocky outcrops and sandbanks of varying size.The third . the hope that there might be pearl oysters. the only one with a surface area sufficient to support costly infrastructures. this is carried out on a small scale. cut off from any mainland or major island territory by ocean trenches up to several thousand metres deep. Various documents and nautical charts reveal the existence of 26 main islands or islets. named in several languages.6 The Spratlys Once again we encounter a vast underwater platform in the middle of the South China Sea. However. when the Chinese occupied the western part of the islands (the Crescent group). There are over one hundred of them.and renewable . . about which there had been much talk before World War II. p. has been equipped with an airstrip and an enlarged harbour. On the other hand. However. though the conditions for mining them depended on a more detailed examination of the samples taken. Since the full-scale Chinese occupation of the archipelago. not an industrial one. China's Position Towards Territorial Disputes. and particularly from 1974 onwards. the resulting income providing no more than a living for the fishermen's families. islets.

Lys Shoal. 24 December 1984. at p. Trident Shoal.20 Chapter I examined later. measuring approximately 14 by 11 kilometre.000 tonnes. We shall merely note at this point that not all the islands are occupied. Malaysia. one of which is about one kilometre long. including Itu Aba Island which measures 1 by 0. it is possible to find fresh water and to cultivate crops. comprising two main islands and three reefs. identified on charts. During the dry season. The islands do not have and have never had a native population. the islands have seen a build-up of guano. . China and Vietnam respectively. If wells are sunk. Taiwan. When they administered the islands (between the two World Wars) the French noted the sporadic presence of a few Chinese fisherman from Hainan. The islands are small. A report by the Vietnamese exploratory expedition of 1973 stated that some islands were swarming with mosquitoes and rats. Subi Reef.4 kilometre. Tizard Bank. and for the same reasons. and one which was mined by the Japanese prior to World War II. having vegetation and fresh water. Some are occupied by the Philippines. The archipelago also includes seven groups of rocks. the climate is torrid. All the States which have staked claims currently maintain garrisons on one island or another. 15 May 1978. having wells sunk by 8 9 See 'Inoccupation d'ilots de la mer de Chine' (1933) Asie Fmncaise no. covered only by sand and guano. 313.5 kilometres. The reserves of phosphorus are currently estimated at 370. the Spratlys are thought to harbour a reserve of 25 billion cubic metres of gas and 105 billion barrels of oil. South-West Cay and South Reef). Observers note that the islands are more reminiscent of Oceania than of East Asia.3 kilometre long surrounded by extensive shallows. According to Chinese sources. a coral ring. Newsweek.8 As in the Paracels. North-East Cay. some a few coconut palms. There are two annual monsoons. 'Treasure Islands'. China Daily. at least such crops as withstand the heavily saline soil. Fishery resources appear to be considerable throughout the archipelago. Loai Ta Island. Some are bare of vegetation. Thi Tu Island made up of two atolls. Itu Aba is the most important island. which remain above the water at high tide. The promise of oil is repeatedly mentioned in the international press and appears to have a solid foundation. 266. The distance from terra firma might cause problems (albeit not insurmountable) were large-scale fishing to be carried out. a small island 0. the largest of which measures about 1 by 1. comprising 4 islets (North Reef. Others have a few bushes. a coveted resource.9 The main islands and rocks are: North Danger Group.

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

clearly identified on nautical charts. 'La mer territoriale et la zone contigue" (1934) Recueil des Cows de I'Academie de Droit International. Droit de la mer. but also islets. vol. madrepore. . the nature of the area of land matters little. I I . coral.11 The debates at the Third United Nations Conference on the Law of the Sea revealed the great complexity of the problem. Some authors add that the islands must also be shown on geographical maps. 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. coral reefs and rocks. sandbanks. This distinguishes islands from low-tide elevations. p. The fringes are then seen as accessories to the main islands. It needs to be asked. there is no doubt that the main islands. However. Reports. 49 and 53.10 For scholarly opinion. vol. 12 Laurent Lucchini and Michel Voelckel. I (Paris. rocks. the reply would not seem to be in doubt for either archipelago. 137-278. Although the status of certain fringes is doubtful.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.' l2 There is also a hydrographic criterion: protruding above the high-water line. etc. 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. at pp. sand. 48. 'Mud. 331. On the other hand. nor whether it includes exceptional tides. anything makes an island. 1953. However it does not resolve the difficulty of defining high water.. The concept of land which is capable of appropriation was raised before the International Court of Justice in the Minquiers and Ecrehos case. Artificial islands are thus excluded. among which there are a few proper islands. See Gilbert Gidel. islets and rocks. are capable of appropriation. 'a naturally formed area of land'. Pedone. Article 121 of the Montego Bay Convention of 10 December 1982 uses a geological criterion. silt. Both archipelagos contain many islands. at pp. 1990). 10 11 International Court of Justice.

This is the crux of the current dispute. of the United Nations Convention on the Law of the Sea is applicable to these islands.e. however.Background Information 23 Therefore the dispute indeed concerns lands which are capable of appropriation. Strategies are hesitant. and the importance of finite oil and mineral resources in certain key industries. in itself. the territorial sea. The titleholder must be established before identifying the resultant rights to adjacent waters and the States between which the delimitation will be effected. islets and rocks. paragraph 2. states: Except as provided for in paragraph 3. paragraph 2. Hoping for a favourable outcome. international law allows for delimitation between States with adjacent or opposite coastlines. Article 121. whether the annexation of the archipelagos. the contiguous zone. 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. 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. each attempts to persuade all the partners that all the islands are habitable.the decisive issue is control of the resources of the sea. . Each State claims possession of the land and international recognition of what it considers to be an ancient title. is a prerequisite. Sovereignty. Looming behind the question of title to sovereignty . i. despite the fact that the protagonists hesitate as to the best attitude to adopt in order to serve their own interests. The appetite of States for maritime territory is growing in line with the role of fisheries in national economies. 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. thus multiplying the maritime areas which would fall under its national control. 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.our strict focus here . In order to decide between competing desires for maritime space.

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

13 March 1989. the overwhelming majority of these sprinklings of land come under paragraph 3 of Article 121.16 To make progress on the main issue . If the human habitation mentioned in the Convention is seasonal. similarly. i. 41. widespread after the dispute has arisen. land above the water. with a certain autonomy. in the dry season. must be capable of supporting naturally a relatively stable community of people. It is therefore necessary to go back to the state of the islands as described by navigators or visitors before the conflict caused transformations. since it is well known that such developments. However no economic life of their own. maintained only with military support.. Let us recall that: Sovereignty in the relations between States signifies independence. 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. van Dyke and Dale L. nor of any population maintained there by means of costly infrastructure and facilities. .the validity of the titles claimed the exact nature of the dispute must be identified. 164. Bennett.e. by fishermen from various neighbouring countries who 'lived' there without making the islets their usual abode. p.Background Information 25 To sum up. continuously maintained titles. Islands and the Delimitation of Ocean Space in the South China Sea. What then is the legal foundation of the claims of the various governments? Does any one of them have a better title than another.15 Were both archipelagos able to do so from the beginning? No account must be taken of the presence of garrisons. however insubstantial. or than others. Without doubt. are designed to change the odds. The status of some of the larger islets is debatable. particularly Woody Island in the Paracels. Independence in regard to a portion of the globe is the 15 16 See Jon M. op. cit. has ever been possible for these lands. 1992). on the grounds of ancient. Jeanette Greenfield. mimeographed paper. then since ancient times some islets have been visited for several months of the year. See van Dyke and Bennett. China's Practice in the Law of the Sea (Oxford. The legal nature of the dispute Several States have irreconcilable positions regarding these archipelagos. p. Clarendon Press. which demands recognition? Vietnam asserts that it has territorial State sovereignty over both archipelagos.

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

In the history of claims of sovereignty over island territories.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). in the event of conflict. to rule in favour of the State whose territory lies closest to the disputed islands. 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. 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. 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). 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. it has never been recognized as constituting a rule of international law making it possible. 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. The dispute having been characterized.20 In the Island of Palmas case. His reasoning deserves to be quoted in extenso: In the last place there remains to be considered title arising out of contiguity. Although States have in certain circumstances maintained that islands relatively close to their shores belonged to them in virtue of their geographical situation. . However. which occupy or have occupied the same lands over very different time scales and on the basis of very different titles. Judge Max Huber considered this argument at length. The argument of geographical contiguity This argument must be jettisoned from the outset.

at p.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. either by agreement between the Parties. . The principle of contiguity. may not be out of place when it is a question of allotting them to one State rather than another.21 Although dating back to the period prior to World War II. in the words of Louis Cavare. 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. 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. 4 April 1928. or by a decision not necessarily based on law. Droit international public positif'(Paris. 'It is impossible to accept that proximity can serve as basis for the creation of a genuine right. In international law. for it is wholly lacking in precision and would in its application lead to arbitrary results. it is not the fact that an island is situated within 21 22 23 Max Huber. It is surprising to note the persistence of this argument among a handful of authors such as Charles Rousseau. Pedone. Revue generate de droit international public. but as a rule establishing ipso jure the presumption of sovereignty in favour of a particular State. Island of Palmas. Louis Cavare. or that the distance separating the closest point in the Spratlys from the coast of Vietnam (Cam Ranh) is 250 nautical miles. these comments are still just as pertinent today. op. They mean that one argument devoid of legal value can be eliminated from the field of consideration.28 Chapter I such a rule of international law. have no bearing on the legal substance. cit. Nor is this principle of contiguity admissible as a legal method of deciding questions of territorial sovereignty. 1962). 835. while that archipelago lies some 522 nautical miles from Hainan.' 22 Hence. at pp.. p. and one can but conclude. 854-855. 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. 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. 597. in regard to islands. where the Paracels are concerned. Arbitral Award. 1972.

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

Oral statements made before the International Court of Justice in the case concerning Western Sahara on 14 May and 14. Two new rules were admitted by the signatories. From that time onwards. and showing complete disregard for the populations. The relevant acts must have been performed in sovereignty and could not therefore have been performed by private individuals acting on their own behalf. Mohammed Bedjaoui. 15.24 By this means. supported by numerous arbitral awards or legal decisions. the Great Powers had treated many lands inhabited by peoples unknown to them. it was accepted that. The effects of an act produced as giving access to the title (cession. in particular through the magisterial award of Judge Max Huber in the Island of Palmas case. maintenance of the title could only stem from the generalization of such display. 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. "droits" historiques et auto-determination'. international law with respect to territorial acquisition became consolidated and widely accepted. the word conquest could be omitted. However. being replaced by the much simpler expression of 'discovery'. . the manifestations of that display might be more tenuous than in lands with more developed civilization. remote lands were concerned. conquest. the initial title had to be backed up by the continuous.30 Chapter 1 characterized by the fact that the sovereignty of the State included the right of conquest. And if the initial title had been obtained without the display of authority throughout the territory. peaceful exercise of the authority of the State active in the territory. as terrae nullius. 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. 24 See in this connection 'Terra Nullius. Africa being essentially the field of application. where uninhabited. 1975. However. A distinction was drawn between creation of the title to the territory and the maintenance of this title in continuity. and not on the basis of the law in force at the time when the dispute arose. 16 and 29 July 1975. The change in the law was crystallized at the Congress of Berlin and in the precise terms of its General Act of 1885. discovery or occupation) must be weighed up in the context of the law in force when that act was performed. which had developed their own non-western systems of social organization. Further.

Not until 1960 and the dawn of the great decade of decolonization was what had hitherto been the law completely overturned. 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). even with the passage of time.25 Such was the state of the law from the close of the 19th century until the first half of the 20th century. The Law of the Sea and Maritime Boundary Delimitation in South-East Asia (Oxford University Press. Conquest by force entails a situation of military occupation which is always illegal and which. pp. Kriangsak Kittichaisaree. 25 See. A number of fundamentally important and radically innovative elements were introduced with the Charter of the United Nations. 140 el seq. . 1987). on these points. failing an agreement concluded between the States concerned. the recognition or acquiescence of third States could not serve as basis of the title itself. Wars of conquest. 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. 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. the founding States introduced a vitally important element. as a source of new sovereignty over a territory. namely. the right of peoples to self-determination (Article 1. paragraph 4).Background Information 31 Lastly. cannot be transformed into law. international legal order. which laid the foundations of a universal. are now prohibited. of the Charter). 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. but was an element which reinforced the position of the State exercising the authority. However. paragraph 2. the United Nations Charter also contained another principle which lay at the root of considerable upheavals in international law. Concerned as they were to attain the objective of the maintenance of peace. However. and the integrity of their national territory shall be respected.

Lastly. It highlights the fact that the difficult transition of a colonized people to an independent people. The changes have never occurred abruptly.more uniform but nevertheless not free from complications . had been heralded by the provisions of the League of Nations Charter and the BriandKellogg Pact. clarified. General Assembly resolution 3710 .of China. 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 . social evolution causing each period characterized as new to engender different norms. Against the backdrop of this long evolution of the legal principles over three periods sufficiently distinct for them to be specifically identified. the Charter was strengthened. less precise and radical though those provisions may admittedly have been. by successive stages. whose gestation had been perceptible during the preceding period. the law has developed within a certain continuum. today Vietnam's principal rival for these lands. This is resolution 2625 of 24 October 1970. Even if certain dates have the appearance of watersheds (1885 or 1945). which often takes place in political conditions marked by confusion and disorder.27 This is the set of rules which. . levels out the temporal unevenness by absorbing it into a more blurred landscape. 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. envelops the text of the dated treaty or convention (should there be one) and. Even the most salient one. The law has been transformed step by step with the various historical epochs. One of the major difficulties of this case is the necessity to correlate two totally different historical rhythms. must never involve any encroachment on its territory. have formed the corpus of positive international law.32 Chapter I The last phrase is crucially important. and extended in 1970 by a particular resolution which has sometimes been compared to a constitutional development of the Charter. prohibition of the use of force.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. the history of the two archipelagos must be examined in relation to the troubled history of Vietnam and to that . itself permeated by the slow development of attitudes. the elaboration of law and the gradual modifications through which it passes are slow processes in which the part played by custom.

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

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

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

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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

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

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

The Vietnamese People's Navy seized back control of the Spratlys from the Saigonese troops. . mutual respect. the Government of the Socialist Republic of Vietnam made an official pronouncement on the question of its rights in maritime matters (territorial sea. the administration of South Vietnam recalled that a guarantee of the territorial integrity of Vietnam had been given. 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 24 September. The Saigon administration decided to strengthen the defence of the Spratlys. . 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. the Philippine armed forces took possession of an island in the Spratlys (Lankian Cay) in addition to the ones they had already occupied.1977 On 12 May. contiguous zone. thus eliciting a protest from the Philippines. Deng Xiaoping. considering the complex nature of the problem. In paragraph 5.1978 .Background Information 45 The Vietnamese observer to the United Nations called upon the Security Council to consider the matter. the Pentagon decided not to get involved in the conflict.' . By diplomatic Note addressed to all the signatory States of the Paris Agreements of 2 March 1973. on the occasion of a visit to China by a delegation from Vietnam.In June. It called for a special session of the Security Council. announced: 'This problem will naturally form the subject of discussions in the future.1979 .5 and 6 May . 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. Asked to intervene by the administration of South Vietnam.2 July. Chinese Deputy Premier. .1975 . exclusive economic zone and continental shelf). On 10 September. it was stated that the islands and archipelagos forming part of Vietnamese territory and lying beyond the territorial sea had their own maritime territory. it needed to be examined on the basis of the principles of equality. the New China News Agency announced the development of a large harbour in the Paracels.By a decree issued in February.On 2 March. friendship and good neighbourliness and settled by negotiation. . .1982 . . The Provisional Revolutionary Government of South Vietnam made public its position that.

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

Five States currently share the effective occupation of the Spratlys.9 February . The Chinese vessel apparently refused. In May.25 February . In April 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. an area which the Hanoi Government claimed as its exclusive economic zone. On 8 July the same year. 36 See map.1994 . . a legal analysis of the different claims will need to be made. China being the only occupant of the Paracels since the military incidents in 1974. China seized possession of a number of additional reefs in the Spratlys. . 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.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.On several occasions. . Annex 6. China reiterated its proposal to set aside the territorial dispute and to harness the resources by means of joint exploration.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.36 In the case of both archipelagos therefore. On 23 June 1994.1992 .1995 . the Vietnamese National Assembly authorized the Government in Hanoi to ratify the United Nations Convention on the Law of the Sea.Background Information 47 .

1 For this period. 15. by virtue of discovery accompanied by the assertion of sovereignty. The actual acts of sovereignty effected by the various States. p. an original title was created. acquire sovereignty over an inhabited land. it will be possible to establish whether. op. whether one of the States possesses 'a title superior to that which (he other State might possibly bring forward against it'. in respect of one or other of the protagonists. 2 In Sections II and III. . Punctuated here and there by a number of arbitral awards or theoretical works. cit. in other words. It has been observed that. Max Huber. down the centuries. 4 April 1928. 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. Island Of Palmas Award. it did not undergo 1 2 See Chapter 1. the related evidence and the antecedence of some with respect to others will then be considered (III). in a customary fashion. and in the light of this norm which will first be analysed and clarified (I). By comparing the claims of the different parties.. at p. until the latter half of the 19th century.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. 839. the Paracels and the Spratlys will be considered separately. a State could. above all since the era which saw the development of navigation and the great discoveries. 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).

Whether they are truly universal. what the rules in force were during the periods concerned in other parts of the world. It is a well-known fact that (sovereign) State power usually derives from a triangular relationship between a government. It is this point which needs to be examined here. 3 Permanent Court of International Justice. 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).. There are elements which are physical. material (corpus). The general principle of these rules is. a territory and a population. leaving the matter of the possibility of a change in the holder of the sovereignty for the following chapter. It is the rules relating to this case (or to this series of cases) that need to be clearly identified. this artifice enabling the western powers to act as though affirming a new sovereignty. the clearly expressed will to act as sovereign. a matter of the establishment of a new sovereignty.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. In the context of international law of western origin. 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 other words. The rules which are reviewed here are now held to be general ones based on a very European concept of international relations. involves two elements each of which must be shown to exist: the intention and will to act as sovereign. or was originally.3 Hence. for uninhabited territories hitherto ownerless: . These are inadequate without an element of intent (animus). In the colonial conquests (the particular case of the protectorate apart). p. two sorts of elements must be shown to exist for the acquisition of sovereignty to be accepted under international law. ICJ Reports 1933. that.50 Chapter II any significant change until the 1884 Congress of Berlin. Advisory Opinion regarding Eastern Greenland. 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. will also need to be examined. in other words. . or rather was during the long period referred to here. But in other cases. 45 {territory disputed between Denmark and Norway).

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

7 Paul Fauchille. 'Mere discovery has never constituted sufficient basis for a claim to terra nullius'. A territory. at p. 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. to geographers keen to extend their work to include all territories regardless of who owns them. supposing this condition. The latter can only derive from facts of a certain nature issuing from specific authorities. However. of intentionality. 135.52 Chapter II Mere knowledge of the territory Little can be said about man's first encounter with an unknown territory. (discussed in the following paragraph) is met.. . it is nevertheless true that the first stage in the discovery must subsequently be reinforced. uninterrupted and permanent. can easily have been known from time immemorial to navigators frequenting those parts. yet at the same time never have formed the object of any 'discovery' producing legal effects. it was accepted and required that occupation should materially amount to more than symbolic acts. which falls in the domain. long before the Berlin Act. Paris. 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). Matters are often more prosaic. that this requirement cannot have retroactive effect and that to consider it as so having would be to make an error of law. the declarations of that Conference cannot have retroactive effect. 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.7 However.. We will revert below to the issue of how confusion often arises (sometimes with ill intent) between knowledge of a territory and its 'discovery'. 'Le conflit de limites entre le Bresil et la Grande-Bretagne' (1905) Revue generale de droit international public. and especially an island or an archipelago. It relates to a whole mythology surrounding terra incognita. For to require of the acquisition of sovereignty by occupation an active taking of possession.

and laid down the principle that occupation. and that territories without a master had become relatively few. . pp. 117. p. to constitute a claim to territorial sovereignty.. 43. 443 et seq.11 8 9 10 11 Beatrice Orent and Patricia Reinsch. the Permanent Court recognized that. Paul Reuter. 845-846. op. having regard to the fact that most parts of the globe were under the sovereignty of States members of the community of nations. Droit international public (Paris. International Court of Justice.10 Second. Advisory Opinion concerning Western Sahara. Max Huber. PUF. A claim to sovereignty based upon continued display of authority involves two elements.9 However. cit. 'very little in the way of actual exercise of sovereign rights might be sufficient in the absence of a competing claim'. . in the case of claims to sovereignty over areas in thinly populated or unsettled countries. and some actual exercise or display of such authority.) True. must be effective. or by lodgement of private citizens..... each of which must be shown to exist: the intention and will to act as sovereign. took account of a tendency already existing and especially developed since the middle of the 18th century. 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.).Acquisition of the Original Title 53 The symbolic ceremonies were generally supplemented by some exercise of administrative authority. (. that is. such as the granting of a lease. 'Sovereignty over Islands in the Pacific' (1941) American Journal of International Law. pp. Arbitral Award. ICJ Reports 1975.8 It was a matter of the legal relations between States. p. Island of Palmas. International law in the 19th century. 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. it will be noted: First. offer certain guarantees to other States and their nationals. 1968 Ed.

that fishermen living on and fishing from the Ecrehos had been entered in the register of fishing boats for the port of Jersey. 12 13 Moore 5. 1953. that Jersey had levied local taxes on habitable houses or huts built by the inhabitants of Jersey on the Ecrehos. For this reason acts by private individuals which were not immediately followed up by the public authorities are disregarded. 5037 (original Spanish). among other things. fish for turtles and collect eggs on Aves Island. the fact that the Jersey courts had exercised criminal jurisdiction in respect of the Ecrehos. 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. It was pursued by the parties in the Aves Island case (Netherlands v. The arbitrator concluded: Having regard to the established fact that the inhabitants of Saint-Eustache. 12 Intention derives either from the actual nature of certain facts or from the standing of the party performing the acts. Reports. implying as it does merely temporary. 65. In that case the International Court of Justice considered.13 Together these facts proved the United Kingdom's assertion of sovereignty. See International Court of Justice. This question lay at the heart of the Minquiers and Ecrehos case between France and the United Kingdom. Venezuela).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. . cannot found the right of sovereignty. but the consequence of the abandonment of fishing by the inhabitants of neighbouring countries or by the island's legitimate owner. at p. precarious occupation of the island and being not the exercise of an exclusive right. The debate is of long standing. a Dutch possession. 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. this practice.

the fact of not having actually occupied the island did not prove anything.14 Thus what the Court required was acts that could be considered to be displays of exclusive State authority over the territory concerned. 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. 5027 (original Spanish). at p. is not lost by reason of their absence.Acquisition of the Original Title 55 Conversely. 394. at p. . Netherlands-Venezuela. It has been mentioned and applied in various arbitrations.17 14 15 16 17 Idem. the titleholder further had to renounce the animus possidendi. Arbitral Award by King Victor Emmanuel III (1932) American Journal of International Law. CNRS). Lastly. derelictio results from two elements: in material terms. as distinct from actual facts. the intention to abandon the territory. Moore 5. 238.16 Or again: Against these titles. Gerard Cohen-Jonathan. It follows from these premises that Clipperton Island was legitimately acquired by France on November 17. the absence of any effective administration of the territory concerned.15 The rule is of long standing and is still in force. since she never had the animus of abandoning the island. Clipperton Island. 30 March 1865. in psychological terms. certain facts invoked by France. There is no reason to suppose that France subsequently lost her right by derelictio. 71. Aves Island case. This was a key element of the legal system which prevailed until the late 19th century. p. since the abandonment of the exercise of sovereignty was not enough to establish its loss. the 'animus'. 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. 1858. 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 '. In international law. 'Les iles Falkland (Malouines)' (1972) Annuaire Francois de Droit International (Paris.

Works of geography do not therefore support the claims of one party or another in ancient times.56 Chapter II Such was the law until 1884. 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. AWARENESS OR DISCOVERY. These observations flow from consultation of the maps available at the French National Library. Islands and the Delimitation of Ocean Space in the South China Sea. their legal effects being fundamentally different. from the 18th century onwards. There is no doubt that since ancient times (difficult to date) the archipelagos were known to geographers and navigators from various lands.'19 However. They are mentioned in a host of documents (albeit with the relative lack of precision inherent in old map-making techniques).18 This specificity must be taken into consideration in the analysis. which was characterized by mere awareness of the islands. 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. statement at the Conference held in Bali (Indonesia) on the question of hydrocarbons in the South China Sea. The archipelagos are identifiable on many maps dating from the early 18th century or later. p. In particular: 18th century Dutch nautical chart (GeB 220) . 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. We shall first examine the period prior to the 18th century. elements which could not apply to uninhabited territories. then the period which saw an assertion of sovereignty. the names are given in various languages (often 18 19 See van Dyke and Bennett. 11. 13 March 1989. mimeographed paper. 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. 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.

either State carried out any acts which might have revealed a taking of possession. the Vietnamese called it Hoang Sa. China and Vietnam both appear to consider that any mention embraced all the islands in general. 1785 (GE D 3610) Map of the China Sea. and Nansha by the Chinese. or Truong Sa by the Vietnamese. before the 18th century. beyond geographical awareness or private visits by a few fishermen. 246 et seq. however well the South China Sea was Map compiled in 1808 by Daniel Rops. Examination of the documents first reveals that initially. 1821 (GeCC2301) Map of the Coasts of Siam and Part of the Coasts of China. National naval archives. Excerpt from a letter dated 28 April 1788 from Captain de Kergariou-Locmaria (frigate Calypso). of the Bombay Marine (Ge 2301/17) Map of Neptune's Eastern Realm after Mannevilette (1745. It must be added that. there was no separate mention of two archipelagos. The navigators of the region. See Pierre Bernard in: Lafont (ed. The Europeans called it the Paracels. B. A few Vietnamese documents are nevertheless detailed enough for a distinction between the two archipelagos to be inferred. The explanation for the long confusion is historical. however symbolic. there was no trace of permanent occupation before military logistics made the recent installation of garrisons possible. and for a long time.20 Fishing was always practised by both Chinese and Annamese fishermen. the French Kergariou-Locmaria expedition (1787— 1788) identified the islands more accurately. 1989). as things stand there are no documents in the case allowing us to state that. L'Harmattan. pp. Despite the fact that China and Vietnam claim to have asserted their rights since time immemorial. In the 18th century. Lt. 1732. 20 21 . like the first western navigators (Portuguese. Spanish. Owing to the climate (torrid heat in some seasons and formation of cyclones). separate archipelago. Ge DD 2987) Map of Amsterdam. of a vast.4. believed there to be a single archipelago in that part of the sea. compiled by Mr de la Vignein 1712 (GeC 10431). It is true that the inhospitable seas of the reputedly dangerous zone discouraged idle forays. and the Chinese gave it several names. named the Spratlys.) Les frontieres du Vietnam (Paris. The references produced by China are more vague in this respect. 500 kilometres further south.Acquisition of the Original Title 57 that of the navigator or mapmaker). Annex 7. Dutch).21 Subsequently the charts showed the existence. making it impossible to use such charts to infer conclusions of a legal nature concerning title to sovereignty at the time. 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'.278.

Samuels. London. excerpts from geographical works are quoted as support for a Chinese title to the islands. 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. such as Nouvelles sinologiques or other studies by Chinese researchers. No. 8. they have no value as evidence. Methuen. (1988) Nouvetles sinologiques. The result was that. 7. 1982). without necessarily including them under Chinese sovereignty. 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. 22 23 24 Marwyn S. for centuries it was so notorious for the dangerous ground in the form of islets. No. that navigators setting a course for Singapore or the Gulf of Thailand always hugged the Vietnamese coast. or in publications originating with the Chinese Government. 20 April 1988.58 Chapter II known.23 In the case of more detailed statements. reproducing a document of the Ministry of Foreign Affairs of the People's Republic of China of 30 January 1980. far less was known about the Spratlys than about the Paracels. which for Chinese sailors remained the 'gateway to Champa'. the Chinese geographers and chroniclers concentrated on meticulously describing territories. banks and reefs strewn across its centre. entitled: 'China's Indisputable Sovereignty over the Xisha and Nansha Islands'. pp. And these islands are actually mentioned and described. 23-24. though as they are works dealing with countries other than China. (1988) Nouvelles sinologiques. Like all geographers in search of universal data. 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. . Contest for the South China Sea (New York. inevitably.24 Geographical knowledge In certain Chinese documents.

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

27 This applies to the examples adduced by the Chinese as proof of an act of sovereignty when they state that. sometimes simply because he has run into them in the harbour. first ambassador of China sent to the West. which makes any identification uncertain. refer to sandbanks in the barbarian countries of the south-west. whereas the texts in question. in Dong Xi Yang kao referred to supra. The names of the islands vary in the most whimsical fashion: Jiurulozhou. 330.26 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. in the account of his voyage. still less the Spratlys. but ruins the argument. Wanlichengsha. Most of these accounts refer to the islands using widely varying names. lying as they do over 200 kilometres south-east of Hainan. This is a serious confusion. 27 See. of the Ming dynasty (1536). Qizhousan. such as Hai Yu by Huang Zhung. islands are mentioned which are situated 100 li (50 kilometres) from Wenchang. which avoids any possible confusion with the Spratlys. p. military patrols were organized from Kwangtung and sailed to the Paracels. all the islands in the South China Sea) or when they infer from them a Chinese title. Wu Jing Zong Yao (General Programme of Military Affairs 26 Jian Zhou.60 Chapter II sailors or explorers. . which are much further from the Chinese coasts.' There follows a footnote 18. in which the quotation produced speaks of the Paracels and indicates their latitude. they themselves sometimes agree that the word Wanlishitang denotes the four archipelagos. under the Northern Song dynasty (10th to 12th centuries). Guo Songtao. For example. 1991). Sometimes there are a few details of the distance from the coast. They do not always confirm that it is indeed the Paracels which are being referred to. for example. at p. 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. in other words. which strongly indicates how foreign these territories are to China. also mentioned the Nansha Islands (Spratlys) as belonging to China. Qizhouyang. Wanlizhitang. 'The Dispute over the South China Sea Islands' (1975) Texas Internationa! Law Journal. 273. which cannot correspond geographically to the Paracels. So it is difficult to follow the Chinese authors when they assert that all of these denote the Paracels or sometimes the Spratlys (however. The author states: 7» 1878. Paris X. Qianlishitang. Les frontieres maritimes de la Chine (University thesis. Tao Cheng.

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

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

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

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

Phu-bien tap-luc.e. the Hoang Sa Company found 30 ingots of silver — year Giap Than (1704). the first document 35 36 Le Qui Don. the Company collected several measures of tortoiseshell and sea cucumber. he did not know them sufficiently well to date the Annamese administration with accuracy. The work contains a dated list. China has been unable to invoke any act of taking possession corresponding to the criteria described above. it may be said that: at the time the existence of the Paracels was generally known. i. were based on some knowledge of the archives. from the early 18th century onwards. 126 ingots of silver. Sometimes it found only a few china bowls and two bronze cannons. and found the following: — year Nham Ngo (1702). However. which a thorough examination of the archives would have allowed. Miscellany on the Government of the Marches.36 Thus. established after perusal of the registers kept by the rulers. These events confirm that the rulers of Annam had an effective navy and sought to control the seas. in the context of the 18th century. Mr Le Fol. .Acquisition of the Original Title 65 already well organized by the rulers of 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. over a five-year period. Chief Resident of France in Annam. 5-100 measures of pewter — year At Dan (1705). Doubtless his words. 'The archipelago (Paracels) seems to have remained res nullius until the beginning of the last century'. stating. 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. 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. Annex 8. of the wealth yielded: I have myself examined the registers of Cai doi thuyen. on 22 January 1929.35 The same author refers to known events. the evidence of Annamese administration is well established. Vietnam possesses. in the work of Le Qui Don. Between the year Ky Sun (1709) and the year Quy Ty (1713). On the other hand. naval battles between the Dutch fleet and the Nguyen navy (1643-1644). owing to the absence of earlier evidence. wrote to the Governor General of Indochina.

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

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

in his place. then presided over by four mandarins. author of a Memoir on Cochin China in 1820. Counsellor to Emperor Gia Long under the Vietnamese name of Nguyen van Thang. In 1833. In 1816.40 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'. The work was duly carried out and orders were given by the King for those responsible to be recompensed. This is the account by Monsignor Taberd in The Journal of the Asiatic Society of Bengal (September 1837) and that by Jean-Baptiste Chaigneau. the King ordered the Hoang Sa Company to travel to the islands in order to make surveys. Editions en langue etrangere. What is more likely is that he dispatched an official. .hac Vien. The Authentic Writings on Dai Nam (Dai Nam Thuc Luc Chinh Bien) relate that. yet this information is not confirmed. mimeographed). perhaps because the Emperor did not travel without a retinue consisting of thousands of people. 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. in 1815. These instructions were reiterated in 1835. Minh Mang.39 When the Nguyen dynasty was restored. thus making such a journey to the islands problematic. The maritime companies. those concerned sailing in flotillas of five junks carrying six months' supplies. 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. Emperor Gia Long made an inventory of all the lands in the kingdom. (PhuBien tap-luc by Le Qui Don) (Hanoi. according to certain accounts. Easily visible to navigators. the project having been postponed owing to the violent wind and heavy seas. 1987). In 1815. were to play an important role in compiling a register of the archipelagos. and again in 1816. Vietnam une tongue histoire (Hanoi.68 Chapter II the year. 38 39 40 See Luu Van Loi's analysis of Miscellany on the Government of the Marches. inform him about maritime routes and draw up maps. 1994.38 From 1771 to 1802 the history of Vietnam was marked by dynastic conflict. Pham Quang Anh. his successor. they will prevent many a ship from running aground. See Nguyen K.

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

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

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

under the same command. Each year. land standing clear of the water. and in Dai Nam Nhat Thong. The Hoang Sa Islands lie east of Ly Island. Regulations of Successive Dynasties by Subject-Matter (Lich Trieu hien chuong loai chi). Annamese records clearly show that there were several companies with distinct geographical destinations. Annamese records. i. an idea supported by the map compiled in the 14th year of the reign of Minh Mang.47 Yet the figure of 130 does not correspond to either archipelago alone. The beginning of the Nguyen reign saw the formation of the Hoang Sa Company. it is possible to reach them in three or four days' journey. in the third month. the company embarked to harvest the products of the sea which it brought back to the port of TuHien in the eighth month. or the 10. A Geographical Description of Reunified Dai Nam. under a favourable wind. minded to profit from both archipelagos. with a fresh water spring. lying between one day and several hours apart from each other. See list of islands.e. written between 1865 and 1882. The east of the islands lies close to the prefecture of K'iong Chow on Hainan Island.49 One of the companies founded in the 19th century was called Bac Hai. Seabirds congregate in these places in countless numbers.000-li sandbank.72 Chapter II elevations. Wrecks are commonly found. large turtles. mother-ofpearl. to collect the products of the sea on the Kouen-Leuen Islands in the Northern Sea. and 47 48 49 50 Particularly in Phan Huy Chu. A Northern Sea Company was also founded. Reproduced in Annex 9. which belongs to the Chinese Empire. There is a well on this bank.50 This map shows a group of islands distinct from the coastal islands.A. . etc. The products are many: hai-sam. 1821. Annex 4. doi-moi.46 Also. At their heart stands a bank of yellow sand. These particulars strongly suggest that the emperors. commonly called van-ly-trug-sa-chan. text cited by P. instead it corresponds quite accurately to the two groups together. made up of 70 men from the village of Vinh-An. Lapique. from the name then given to the Spratly Islands by both the Vietnamese and the Chinese. From the port of Sa Can. found a way to do so by bringing under the same command two companies with separate geographical destinations. stretching endless thousands of li. The islands number over 130 rocks.

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

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

Yet there were also fishermen from other 56 51 P. Authors who are not content to confirm pre-established positions. The occupation of Hainan was little more than nominal. a 'first Chinese reconnaissance in the vicinity oftheXisha Islands (Paracels)'. Furthermore. For example. 562.56 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). published in 1906.. p. the Chinese. and one or two ports on the south coast.Acquisition of the Original Title 75 Since the far-off days of Gia Long. cit. the Chinese geography textbook Zhongguo Dihixue Jiao Keshu. thesis completed under the supervision of Professor Hubert Thierry. prior to that date. On that map Chinese territory is shown extending only as far as Hainan Island.A. Les frontieres maritimes de la Chine. 4. for the year 1902. This fact is attested by Chinese researchers themselves. states on page 241 that 'the southernmost point is the Yashou coast of Quongzhou Island at latitude 18°13' north'. 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. Lapique. Zhou Jian. the Chinese occupied only a narrow coastal strip in the north of the island. but who deliberately examine each element of the reasoning in a quest for objectivity. China had voiced no clear claim to either archipelago. in a thesis for a French university. Nanterre.57 This reveals quite clearly that. the only neighbours who might have intervened in the Paracels. there had been neither reconnaissance nor a fortiori administration. 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. were too far away. Jian Zhou notes in his chronology. Until very recent times. p. are therefore led to the conclusion that China has no ancient historic title to the Paracels and Spratlys. The only undeniable fact is the presence of seasonal Chinese fishermen. The author contradicts himself since in the same thesis and without citing precise references. op. . University of Paris X. 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. These documents published at the end of the period under consideration confirm that until then (late 19th century). 265).

p. however. 21. at pp. See Jean-Pierre Ferrier.58 A simple affirmation of the rights of sovereignty or a manifest intention to render the occupation effective cannot suffice. Reports of International Arbitral Awards XI. 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. 180 (The author in no way endorses this Chinese argument). Arbitral Award of 6 June 1904 by King Victor Emmanuel III of Italy. the Emperor of China. 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. This tie of vassalage is difficult to define in legal terms. would be rash. 'The People's Republic of China and the Use of International Law in the Spratly Islands Dispute' (1992) Stanford Journal of International Law. p. 1938). Brazil v. Any comparison with European feudalism. As for the legal validity of these reports.' 60 The nature of this tie of vassalage therefore needs to be elucidated as well as its consequences for the jurisdiction of the islands. as its precise meaning is vague and has fluctuated in intensity down the ages. . the United Kingdom. 82. Imprimerie Albert Portail. op. it obviously cannot be assessed according to the international rules of the community of European States. their acts merely 'confirmed Chinese sovereignty over islands which were not Annamese. a more highly structured model and one better known to western jurists..61 58 59 60 61 See Michael Bennett. 434436. The tie would appear to have consisted above all of religious allegiance accompanied by a tribute of varying frequency. but (prudently) acknowledging Chinese suzerainty. Accordingly. Huan-Lai Cho (Chinese Vice-Consul in Saigon). cit.59 b) The non-existent consequences of vassalage Did not China's suzerainty over Vietnam. Les origines du con/lit franco-chinois a propos du Tonkin jusqu 'en 1883 (Saigon. bearing in mind the two different historical epochs involved and the gulf between European concepts and those of Asian society.76 Chapter II countries. with which they could scarcely be reconciled. p. In international law this does not constitute the basis for legal title.

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

a handsome article worked in gold and silver. views comparable to those expressed today in relation to the archipelagos in the China Sea were put forward. There is a major precedent in case-law which reinforces this assertion. that title had lapsed in 1204. the conclusions of the Court. 1953 at p. On that day 'the symbolic Chinese seal. the kings of Vietnam never failed to seek to appease their gigantic neighbour by symbolically paying liege. When victorious. Reports. the history of Sino-Vietnamese relations has seen many Chinese military ventures against Vietnam. quoted by Nguyen Huu Tru. unless it had been replaced by another title valid according to the law of the time of replacement. The Chinese argument derived from vassalage can therefore scarcely have any legal significance. even if the French Kings had had an original feudal title also in respect of the Channel Islands. 1956. the Court found that. surmounted by a camel 65 66 G. International Court of Justice. cit. the vassalage of Vietnam ended on the very day of the signature of the 1884 Treaty of French Protectorate. vol. are also a fortiori valid for relations between Vietnam and China. II). . ritual and wholly moral suzerainty rather than actual suzerainty of a political kind.' 65 Ever since the State of Vietnam was created by throwing off the Chinese yoke. valid for European feudalism. 56. 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. It was China's very indifference that enabled Vietnamese independence towards it to develop during the years of French settlement (prior to the protectorate). La geste francaise en Indochine (Adrien Maisonneuve. in fact. Taboulet. In the Minquiers and Ecrehos case..78 Chapter II nominal. To this the United Kingdom objected that the title of the French Kings in respect of Normandy was only nominal.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). Noting that these were uncertain and controversial views on a remote feudal epoch. op. It is for the French Government to establish that it was so replaced. p. 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. 27.

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

000 square kilometres.This right was undoubtedly exercised over the Paracels. 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. There is reason to think that the Vietnamese administration also included the Spratlys. or at least enough large islands to result. But there is nothing specific to say that this then concerned the whole of an archipelago covering 160. It remains to be seen whether it was actually exercised over the archipelago as a whole.At the time of the signature of the Treaty of French Protectorate in 1884. there is an 'inchoate title'. in a right over all of them. and subject to the reservations just made.80 Chapter II . which must subsequently be consolidated by its holders. The problem then arises of whether or not the title was consolidated and above all maintained in relation to the evolution of international law. Vietnam possessed a right over the archipelagos. . such as to counterbalance or cancel the manifestations of Vietnamese sovereignty. At this point in the analysis. . by extension. a right unchallenged and going back almost two centuries. In that case. in accordance with the legal system of the time.

marking as it does the beginning of the period of French colonization in Vietnam and also. then the years when the Vietnamese people reappeared speaking for itself. even though this is not necessarily decisive in all cases. the establishment (after the Congress of Berlin) of new rules of international law. but with the many complications and contradictions of the history of Vietnam since the end of the colonial war (Section III). consolidated and maintained. which had developed up to the 19th century in Vietnam's favour.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). or did it disappear through the simple abandonment of these territories. One element will be analysed in an introductory paragraph thus dispensing with one argument relating to the Franco-Chinese Treaty of 26 June 1887. 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). While at first valid in the specific context of the Great Powers present in Berlin and relating only to African territories. . the rules extended under the effect of custom and by application in jurisprudence to the point where they became universal. They were later followed by other fundamental changes in the law. treaty titles occupy an important place. or did it give way to another sovereignty and in what circumstances? First. THE FRANCO-CHINESE TREATY OF 26 JUNE 1887 Where the acquisition of sovereignty is concerned. which had no bearing on sovereignty over the archipelagos. 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). coincidentally. and as regards the administration and occupation of the two archipelagos.

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. deriving from the principle of respect for an undertaking given (pacta sunt servanda). which traced the frontier between China and 1 Max Huber. the treaty can only be the proof and support of effective administration. China sought to base its claim on various arguments. This was the whole thrust of the award delivered on 4 April 1928 by Judge Max Huber in the Island of Palmas case. 4 April 1928. Where the archipelagos in the China Sea are concerned. p.. However. op. among other things: Moreover. States having acquired territories originally vacant by discovery followed by effective administration with the intention of exercising sovereignty. even if she (i. 850 .82 Chapter III True.1 What has to be investigated. each word of which tells and to which the States have pledged themselves by their signature and ratification. is both the reality of the administration of the islands and the intention to exercise that administration as a sovereign. 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. and notwithstanding the solidity of the rights recognized by treaties. The Award states. 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. 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. no such reference is made by either of the parties with respect to the period examined in the previous chapter. However. By itself it cannot make up for the lack of such administration. On the other hand. 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. it is still illuminating to establish whether there was a genuine treaty commitment with respect to these territories. cit. Spain) had acquired a title she never intended to abandon.e. therefore. inter-State relations are more solid if based on a written text. Island of Palmas Award.

The object and purpose of the 1887 Treaty were the delimitation of the frontier between Tonkin and China (indeed. Shao Xunxheng. to have abandoned them three years after extending its protectorate over the whole of Vietnam. For the Vienna Convention of 29 June 1969.2 The Chinese Government still holds to this view today. at longitude 108 ° 03' 13 " east of Greenwi ch. p. beyond the frontier as fixed by the Delimitation Commission. Although indications of lines drawn in the sea are given in old conventions 2 3 4 See Annex 10 for this Note. This is an argument which is found in a number of western authors writing in English or French. are also allocated to China. op. 3 of July 1956. which states: In Kwangtung. The Convention relates to the land territories. 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.4 However. in an article published in Renmin RibaoPeking No. 155. cit. . are allocated to China. for example. In other words. The French colonial power would thus appear.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. Jeannette Greenfield.Subsequent Development of the Title 83 Vietnamese territory then under French control. An example is a Chinese publication of 1956. which codified the rules for the interpretation of treaties. A Chinese author. bases himself on the terms of this Convention when contending. there is good reason to consider this view irrelevant. The islands which are east of the Paris meridian of 105°43' east. this is the title of the Convention as formulated by its authors). The island of Gotho [Kao Tao] and other islands west of this meridian belong to Annam. that the Paracels and Spratlys lying east of this delimitation belonged to China under the same text.. by this form of words which does not even mention the two archipelagos. it is understood that the disputed points which are situated to the east and north-east of Monkai. 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). See.

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

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

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

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

peaceful. were it not for the fact that the vicissitudes of history introduced other concepts whose legal content must be determined before we proceed. the current occupying State is then in a position of acquisitive prescription. cit.14 Thus nonrecognition may impede the validation of a de facto situation. 1997). original title. In such a case. 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. the judges or arbitrators scrutinize most carefully the attitude of the States claiming to hold the true. at pp. It therefore requires a certain degree of intensity. Cohen. .13 there being no 'customary rule attributing to effective possession atone the capacity to shift the existing title to sovereignty'. Les iles Falkland (Malouines) (1972) Annuaire Francais de Droit International.15 However. p. PUF. Possession contestee et souverainete territoriale. in which the previous occupying State showed no interest. 389 et seq. 240.16 13 14 15 16 Jean-Pierre Cot. Marcelo G. For an outline of these difficulties. Publications de l'Institut Universitaire des Hautes Etudes Internationales (Geneva.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. at p. and also by the exacerbation of political rivalries between States. Annex II. 492. For 'a sovereignty which is challenged must react. Chronique de jurisprudence Internationale. on pain of forfeiture'. Affaire du Temple de Preah Vihear (1962) Annuaire Francais de Droit International. op. Their silence implies acquiescence. It must be noted that the legal analyses favouring the Chinese position rarely take account of the various State successions. other rights having already been established. If it can provide evidence of a long period of continuous. All we would need to do is verify their application to the situation of the archipelagos. see the note by the Foreign Ministry's legal adviser dated 25 May 1950. such non-recognition must be periodically renewed and must reflect a genuine will to oppose the actual situation. conversely protest preserves their rights. public administration. inter alia Jian Zhou. Gerard Cohen-Jonathan. Such are the rules shaped by the greater demands of relations between societies and the increasing rarity of undiscovered territory.

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

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

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. It gives no precise guidance on how to identify the successor and predecessor States (or Governments) when there are several contenders. one in which two States co-existed de facto. is it possible to interpret the relations of power within China. not the State of Vietnam. therefore. At the same time. That is an issue settled bilaterally through the procedure of recognition.Subsequent Development of the Title 91 Which country. its French partner represented France alone. under the Geneva Agreements. China's case also presents some interesting difficulties in terms of State succession. 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. which rejected the Agreements. each claiming with different diplomatic support to represent the Vietnamese nation. the armistice agreements between the two high commands were concluded. . particularly the rules for attributing international powers. providing only ill-defined solutions. at war with each other. France recognized the full independence and sovereignty of the State of Vietnam. So a further phase in the history of Vietnam commenced. 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. How far could the Central Government subsequently rely on these acts? Moreover. and each having de facto only partial control over the territory and the population. 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. The Vietnamese military command represented the Democratic Republic of Vietnam. each member State of the international community is free to recognize the State or government it chooses.

there is the protection afforded to the right of self-determination of peoples under contemporary international law. having recalled the principle of the right of peoples to self-determination. states: The territory of a colony or other Non-Self-Goveming Territory has. Second. owing to an insufficient number of ratifications. Similarly. but for all parties. paragraph 2. 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. 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. the status of territories has an objective character in international law. First. contemporary international law has formulated and refined some recent principles which may be useful in seeking a solution to the dispute over the archipelagos. Thus. under the Charter. in Article 1. It was written into the purposes of 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. the other on the Succession of States in respect of Matters other than Treaties (1983).22 Nonetheless. 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). Status remains valid not only for the signatories to a treaty (when status derives from a treaty) or for the parties directly concerned. . since practice is so diversified. neither has yet come into force. and has been echoed in many subsequent texts which have sought to flesh out all its consequences. one on the Succession of States in respect of Treaties (1978).92 Chapter III The content of the rules of State succession This content is itself equivocal.

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

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

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

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

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

The mandarins protested. 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. Only one incident is related by historians. It appears to bolster the thesis of Chinese acquiescence in the occupation of the islands by other countries. . 4. Both vessels were carrying a cargo of copper insured with British companies. The text is more specific. p. They were local authorities and therefore in the best 32 33 P. and they denied liability. stating that the Paracels did not belong to China.A.A. Chinese sailors in sampans or small junks looted the wrecks and landed the copper at Hainan. who sought to hold the local mandarins responsible. The insurance companies then requested the intervention of the Minister of Great Britain in Peking and their Consul in Hoihow. It proved impossible to salvage the cargo and the wrecks were abandoned. claiming that the Paracels were abandoned islands which belonged to China no more than to Annam. reading as follows: The mandarins protested. op.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. It was described by P. Lapique.. Lapique: Two of the many shipwrecks in the Paracels caused disputes which deserve mention. Quite the reverse.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).33 Both versions clearly state that the authorities at local level firmly rejected any idea of Chinese sovereignty over the islands. This view is of considerable significance. cit. See Annex 12. were not administratively attached to any district of Hainan.

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

I have some personal memories dating back 20 years or so. an expedition did take place. at p. or by mounting a show of annexation. pp. Lapique. sending me to the frontiers of Tibet at the time of the projected excursion to the Paracels. cit. 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 aware of some of what transpired. M. then living in Hong Kong. quite easily reached the port of Yu-Lin-Kan at the south end of Hainan. two small Cantonese gunboats set sail. In a similar vein. To justify raising the flag and firing a salvo (which are recognized facts). cit. op. but was more in the nature of a private venture. It might not even have had any link with the original project. 53-54. being then resident in Hong Kong. 17.. In late May 1909. the Company which employed me having decided otherwise. op. Apparently what interested them more than my ability as a sailor to reach the islands was the fact that I was French. advancing in the lee of the land. it tarried there at least a fortnight. I was approached by some Cantonese friends who were planning an expedition to the Paracels. or how.37 P. when. as well as Chinese sailors including an admiral. so it would seem.. Although sorely tempted by this adventure.A. gave his own interpretation of the events of 1909 in the following words: As for the Paracels.100 Chapter III The Chinese documents give a different version of the facts. with two Germans from the Carlowitz Company on board. with no mention of where. 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. the reiteration implied in the prefix 're' evoking the idea that the same ceremony had taken place before. which some authors claim lasted one month.S. An expedition to the Paracels did take place in May-June 1909. for the 36 37 Nouvelles Sinologiques. p. There is disagreement as to the duration of Admiral Li's voyage. Nonetheless. and is worth mention. For whatever reason. Jian Zhou. I was unable to take part.36 They speak of a tour of inspection. 277. Samuels. doubtless waiting. they state that this reasserted China's sovereignty. Late in 1908. . for although the little fleet. The latter was a 'river' admiral. no. 8. The officials doubtless sought to regain face by organizing an expedition to the Paracels. before tackling the ocean.

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

In March 1932. since time immemorial. 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. all the more so in that other interests showed their hand. the projects came to naught. 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).. However. peaceful. on the grounds of effective authority. which handed China a previously prepared Note in which the French Government asserted its rights and offered to take the matter to arbitration. effective. marked an interest which did indeed exist but these acts were not sufficient to constitute a long. Jian Zhou. probably as a result of the Chinese domestic situation. which inspected the Paracels and submitted documents. 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. and demanding that the concession be revoked. . p. rights which would allow China to supplant Vietnam.39 d) Renewed Chinese interest in the Paracels (1928) It was from 1928 onwards that Chinese interest in the Paracels again became active. and 1909 (exploration and salvoes fired to proclaim sovereignty) weakened all the other assertions that the Chinese occupation had lasted thousands of years. Annex 14. This prompted a protest by France. China then based its claim on the fact that Vietnam had been its vassal before the colonial period. plus a few concessions and an apparently symbolic administrative attachment. Over the entire period (1884-1939) the acts advanced by China concerned the Paracels alone.38 Some Chinese authors state that China subsequently continued to award licences to mine or otherwise exploit the islands. they dated Chinese interest in the territories as being recent. continuous occupation. On the eve of the War the Chinese position was explicit. even doing so via a national company. should China not recognize these rights. cit. They were carried out by a government which had no place in the continuity of the Chinese State. 280. the Chinese put the rights to mine guano in the Paracels up for public auction in Canton. op. claiming that he was no more than a figurehead for Japanese interests. The acts of 1909. A commission was set up.102 Chapter III The French Government kept a particularly close eye on the matter because some Chinese newspapers attacked the merchant. The documents were summarized in a report reasserting the Chinese claims to the islands and presenting ambitious projects to exploit them.

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

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

France did not pose as successor to the rights of Annam. aware that he had no authority to speak. a Japanese company wishing to mine phosphates on Woody Island applied to the Commander of the Navy in Saigon. In his reply. As can be seen. In that initial phase. A minor commotion was created by an incident reported by P. it stated: My Ministry agreed with Mr Beauvais and we allowed the Chinese to do as they pleased. 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. expressed in slightly different terms by various authorities. the Commander of the Navy. and positions began to be contradictory. The application proves that. I believe that I can assure you that they are not a French possession. asking whether the Paracels were a French possession. Since a gap of 12 years had elapsed between Mr Beauvais' opinion and the Note in question. When China announced that the Paracels had been administratively incor- 41 See Annex 13.41 This opinion was to persist until the late 1920s. This was made very clear in a Note from the Foreign Ministry. On 20 September 1920. 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. 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. it was unsure of its rights. . mentioned supra. at that date. Japan was concerned about France's possible rights. revealed France's hesitations. the Ministry of the Colonies was alerted and requested further information from the Foreign Ministry. Overall. dating from the 1920s. All correspondence exchanged on that occasion. more damaging to us than the possession of the Paracel Islands would be useful. Lapique. and did not know how solid such rights had been. acted with caution. but this assertion is based solely on my personal memories and I cannot provide you with any conclusive document in support of this. Recalling the opinion of Mr Beauvais. cited supra.Subsequent Development of the Title 105 feeling in the population.A. Nevertheless.

negotiating the abandonment of its rights meant recognizing that it had rights. All the above relates to the Paracels alone. in view of the absence of a 'Chinese Government'. Annex 16. Annex 12. 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. M. Paris debated whether it was necessary to protest against the incorporation and to declare the islands a French possession.S. Annex 18.42 However. 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. Samuels (op. addressed to the Under-Dircctorate . .4 3 in a letter to the Foreign Minister dated 25 October 1921. cit. As for the Spratlys. 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. which at the time Japan considered to be a matter between itself and China. for the Japanese.45 A Note of 8 March 1928 similarly states: The islands in question belong neither politically nor geographically to the coastline of Annam. It would perhaps not be excessive.46 A further Note of 26 November 1928.) contends that. France's Charge d'Affaires in China referred to the difficulty there might be in negotiating with China at that time. but not that of the Paracels. Quoted as the view of the Governor General of Indochina in a letter of 18 April 1921 from the Minister for the Colonies. in exchange for official recognition that the Paracels are Chinese.106 Chapter III porated into Hainan. 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. it might have been feasible to discuss with France the status of the Spratlys. See Annex 17. Yet from 1922 onwards a degree of concern surfaced at the idea that complaisance towards China might eventually serve Japanese ends. which belong more logically to the Indonesian archipelago than to the Indochinese peninsula.for Asia and Oceania.44 The Governor added: It would seem that France has never voiced any claim to these islands.

France had not clearly asserted its sovereignty. Annex 8.49 This document is extremely important. Annex 20.' 48 Seeking to buttress the French position. The clear and official assertion of French sovereignty over both archipelagos Finding himself obliged to reply to the New Phosphates Company of Tonkin. Such acts as it did carry out were unassertive and sporadic.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. . therefore reduced to silence. All the more so in that France took no steps legally to renounce its rights in favour of some other sovereignty. writing to the Minister for the Colonies on 17 December 1928 and denouncing 'the ever-increasing megalomania of Chinese nationalism'. the Governor General of Indochina. . However. What legal conclusions may be drawn from this period (from initial colonization until the late 1920s)? . which sought to work the Paracels. the Governor General asked the Chief Resident in Annam for full information. it gave the impression of waiting for a propitious moment to recall its rights and then to negotiate them. cited supra. it was not completely absent from them either. and it may be asked whether they were actually a genuine factor in maintaining and consolidating effective occupation. 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. Rather. not the initial holder of title to sovereignty. which the Resident supplied in the letter dated 22 January 1929. half-hearted attitude being the act of the colonial power. .This hesitant. b) The second period of colonization (until World War II).Subsequent Development of the Title 107 terra nullius and repeated that no decision had yet been taken as to French sovereignty over the Paracels. did not entail any interruption of the rights previously acquired by a people which was dominated at the time. in the correspondence analysed.Although it was not active in the archipelagos. nevertheless it had never officially recognized Chinese sovereignty. 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. The Resident recalled the rights which Annam had 47 48 49 Annex 19.

appearing to remember the status of protectorate initially granted and with it the possible and necessary expression of the views of the interested parties. did affirm in a letter of 3 March of that year that 'the islands still belong to Annam. 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. even through the colonial system derived from the protectorate. in November the same year. he sent a telegram which advocated maintaining the attitude adopted in 1921.52 However. Thus. Annex 23. there is no dispute on this score'. appear not to have asserted their ownership of the Paracels for many years. he referred to information which had reached him. On 3 April 1929. Paris knew less about the situation than some local authorities. Our proteges. and 50 51 52 Annex 21. 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 1921.50 As is often the case. and requested further information. and therefore of France. a French Senator. Even so. . The Resident deplored the passive attitude of France faced with the Chinese claim of 1909. Pasquier (Governor General of Indochina) was the slowest to understand both Annam's ancient rights and the interest the Paracels represented for France. the Minister for the Navy (standing in for the Minister for the Colonies) still urged a waiting game. Mr de Monzie. wrote to the Minister for the Colonies: The rights of Annam. However. then noted that Annam's coastal fishermen (at the time he wrote) no longer visited the islands.108 Chapter III long asserted and maintained. 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. former Minister for War who died in 1925.51 Of all the authorities involved. therefore. although His Majesty Than-Trong-Hue. Writing to the Foreign Minister on 18 February 1929. Annex 22. to the Paracels seem to have been beyond dispute since the 17th century. he wrote as follows.

A. Finally. 53 54 55 56 Telegram of 14 March 1930." Thenceforth. Official telegram of 4 July 1931. a Note was addressed to the Legation of China. asserting France's rights. The Ministry of the Colonies then urged Pasquier to explain his reticence. but offering to take the matter to arbitration should China reject these rights. Moreover. finally asked the correct legal question. The French position was therefore to have the 'appearance of a simple exercise of preexisting sovereign rights '. and his correspondence in March 1930 reflected the shift in his views. Lapique. Had the sovereignty plainly acquired by Annam been lost since it had not been exercised? The author concluded that it was not so. Annex 27. his fears concerning China still prompted him to advocate a waiting game. on 4 February 1932. It was confused. France did not rule out being obliged to recognize Chinese sovereignty. the reply relied on the Sino-French Treaty of 1887. However. 28 July 1930.56 A further telegram of 19 July 1931 from the French Foreign Ministry revealed further hesitation. as expounded supra. Annam had possessed rights since the 18th century. Annex 25. all French documents reflected the clarification of the situation. He relied on the study by P. Yet it could not be said that at that precise time Annam's rights had been extinguished.53 A Note from the Quai d'Orsay. signed Knobe! and dated 19 June 1930. . China had endeavoured to assert its rights only since 1909. yet. the Treaty is irrelevant in this case. Annex 24. the confusion springing from the names used for the islands (the Chinese referred to another archipelago. stating that the Paracels had not been abandoned and therefore had not become res nullius. Pasquier studied the whole case. China's reply was dated 29 September 1932.54 Governor Pasquier's letter dated 18 October 1930 put an end to France's hesitations. He became convinced of the validity of Annam's rights. 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. Peking.Subsequent Development of the Title 109 the islands would be an excellent place to install a radio station to provide advance warning of typhoons. 150 miles away). See Annex 26.

did express an interest in 1929 in the form of an inquiry made by its Consul General in Hanoi. In March 1929. See Annex 28.110 Chapter III Towards the end of this period. Annex 29.59 All the correspondence analysed supra relates to the Paracels. issued by the Governor General of Indochina on 15 June 1938. The French Foreign Minister asked the Consul of France in Manila about any claims the Philippines might have.58 The inhospitable nature of the islets must be borne in mind. created a delegation (administrative unit) covering the Paracels. p. 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.61 57 58 59 60 See Jean-Pierre Ferrier.. there was no 'use of force' against the Chinese. The officials heading the delegations were given the title of Delegates of the Resident of France in Thua Thien. It explains the gap between the intention to act as sovereign and actual administrative occupation. cit. They were supposed to reside on Pattle Island and Woody Island respectively. Not until 1938 was there was a permanent military presence. However.57 What is certain is that an initial decree (n° 156-SC). op. 182. The Consul replied on 22 March 1929 that the Philippines had shown no interest. since there was nothing that might be characterized as a Chinese occupation.60 This reflected the doubt which persisted in the Governor's mind. an application having been submitted to mine guano. the other the Amphitrites. The latter happened gradually. cit. 306. however. The Spratlys were a simpler matter. France appears not to have adopted the same attitude for the two archipelagos. This spurred the French colonial administration into action. Nowhere in the case is there any trace of any Chinese claim whatsoever to the Spratlys throughout the colonial period. Governor Pasquier saw no objection. and that a second decree of 5 May 1939 signed by Jules Brevie created two administrative delegations. France at last asserted its rights over the Paracels in unequivocal terms. Japan.. Some authors maintain that it did so formally in March 1925. Jian Zhou. contrary to the contentions of some Chinese authors. p. and incorporated them into the province of Thua Thien (Annam). op. . one covering the Crescent group of islands.

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

. VII. in the last decade (before the War). but World War II was then looming on the horizon. in any case. the cases of Bouvet and Spratly Islands' (1986) 2 British Yearbook of International Law. This is why this case has been examined by authors under the heading: abandonment of territorial claims. The Japanese army occupied the Spratlys in 1939 and the Paracels a little later. Under the pretext of mining guano. the British Consul General in Saigon informed the Foreign Office. The Imperial Japanese Government annexed the islands by decree in 1937 and attached them to the administrative district of Formosa.112 Chapter III Governor-General of Indochina in a letter dated 25 December 1927 to the Minister for the Colonies. b) Great Britain When in 1930 France began to indicate its intention to assert its sovereignty over the Spratlys. Indeed. no abandonment can be discerned in legal terms. In this letter. considering that the acts actually performed by the British subjects were too slender a basis to have constituted an 'inchoate title' and that. Annex 32. in the course of its rise to military power in the late 1930s. Geoffrey Marston. See Ministry of Foreign Affairs Note. he mentioned that the Consul General of Japan had told him that the Paracels were of no interest to the Japanese Government. 10 August 1940. Yet Great Britain decided not to assert any rights. there had been no subsequent consolidation.65 However. Formosan militia led by Japanese officers set up a camp on the islands. France protested. 'Abandonment of Territorial Claims. there was even an affirmation or reaffirmation of France's rights. Leune in Mer et Colonies. confirming Japan's renunciation of its claims. August-September 1938.64 Talks were held between Japan and France in Paris in August 1934.67 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. Japan made a move towards the islands. this was more lust for power than legal argument. Yet the long period of French uncertainty or 64 65 66 67 Quoted by J. Same correspondence. Voluminous diplomatic correspondence was exchanged on the matter and legal experts were consulted. noting that certain islets had apparently been occupied by British subjects in 1877 with the consent of Her Majesty's Consul General in Borneo.66 However.

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

and despite this context. However. Did this amount to abandonment of the rights of Annam. 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. that is. even though established late in the day. Where the Spratlys are concerned. For China did not make any specific claim to the Spratlys throughout this whole period. was slow off the mark and unsuccessful. This rule. However. The exercise of the previous title. France did not invoke the same link. The occupation must be effective and must correspond to an overall administration. circumstantial and lacking any legal basis. China's acts were neither sufficiently clear and continuous. It took possession of these islands as it would of a terra nullius. constructed patiently and at such length. the continuity of the right of France and of the right of precolonial Annam is genuine where the Paracels are concerned. 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. has been tightened in the 20th century. while lacking the patina of age and considered to be rights asserted over terra nullius. which had been in cold storage much longer. France announced in unequivocal terms that it had taken possession of six islets. Yet for this archipelago it remained an open question. as in the case of the Paracels. the problems of the two archipelagos differed since the French rights over the Spratlys. and only as regards the Paracels. 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. 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. which was still valid until the close of the 19th century. they were not challenged by the claims of another State.114 Chapter III Confronted by the difficult. Hence. was paralysed as a result of the colonial period and the administration of the islands was very sporadic. when the time came. the only true rival power. during the colonial period. a belated show of interest by the Philippines and nothing else. So much so that. And just as French hesitation over the Paracels could not destroy the ancient rights of Vietnam. China. always assuming those rights were genuine? Respect for the right of peoples militates against this. or undisputed. chaotic yet genuine maintenance of this title. The nature of the locations concerned must . In 1933. were stronger by virtue of the fact that. to constitute a right.

as this situation was dominated by the presence of the French Expeditionary Force and a French administration (until 1954-1956). a highly complex one in legal terms. the Government of the People's Republic of China. The Japanese army was present until the capitulation of Tokyo and would not leave the two archipelagos until 1946. as we shall see. they involve France. This Treaty authorized Chiang Kai-shek to occupy the Paracels. However. 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. Chapter III. with the result that this acquisition would also include the other islands as well. 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. they involve the Government of Nationalist China and. after 1949. The material elements The disorder created by the end of World War II was reflected in the material situation in the archipelagos. these are simply facts of war. These elements involve Japan (though it would very soon be completely expelled from the region). the Government of the Democratic Republic of Vietnam. which obtained in Vietnam in the immediate post-war years.Subsequent Developmen t of the Title 115 therefore be investigated to find out whether it is indeed the principal islets which have been acquired. which he would appear to have done in November 1946. Where China is concerned. 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. certain elements from the Philippines. He also occupied the Spratlys. despite having no 69 70 Chapter I.material or intentional constituting the maintenance of the rights need to be identified. and the Associated State of Vietnam. There are also. 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. An examination of the situation in more recent periods will show how far this approach goes. the two elements . Sometimes. In this confused period. Where Vietnam is concerned. .

See documents of 31 May and 3 June 1947. 249). at the diplomatic level.116 Chapter III mandate to do so from the Allies.75 The French were still present on Pattle Island (2 officers. the Chinese reiterated the administrative attachment of the Paracels to Hainan Island. in 1947. But contrary to the assertions of certain Chinese authors. our position in the legal debat. Pierre Bernard Lafont suggests the date of 7 January 1947 (p. cit. but it remained there for only a few months. to the Bao Dai Government. pp.76 On 5 May 1949. See telegram of 25 January 1951. March 1947. France landed a French infantry unit from the Savorgnan de Brazza on certain islands. 10 Europeans and 17 natives). Annex 36. this is not to say that China possessed 'historical' rights over the islands. General Juin recommended the reoccupation of the Paracels in order to consolidate. 76 . In May 1946. The presence of Communist Chinese troops in the Paracels in 1951 and in the following years has not been confirmed. See this letter dated 7 October 1946 to the President of the Committee on Indochina. a French military mission arrived on Pattle Island. in December the same year. or rather. 249 and 254. Yet it was not until 1956 that the administration of South Vietnam. as this inclusion was of late date and associated with particular circumstances. In April 1950.72 In early January 1947. Telegram of 8 March 1947. Annex 35. Nationalist Chinese troops were evacuated from Woody Island only to be replaced by troops from the People's Republic of China. In July 1949. France and China decided to open talks. the Ministry of the Interior of the then Chinese Government published an atlas in which China included the archipelagos. Annex 34. France once again indicated its desire to refer the case to the International Court of Justice. op. Annex 37. there being no effective presence in the Spratlys. in the wake of the 71 72 73 74 75 See Pierre Bernard Lafont. Annex 33. as he put it.73 In March the same year China re-established a foothold on Woody Island and protested against the French military presence. the French Government officially handed over control of the archipelagos. In late 1946.71 In support of this presence is the fact that.74 The political situation worsened just as. See report of 29 January 1947. of the Paracels. In October 1950. The French Ministry of Foreign Affairs. 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..

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

Annex 39. See letter of 16 June 1955 from General Jacquot.118 Chapter III put into port there must request authorization to do so from the High Commissioner. See Note dated 15 May 1950 from the Directorate for Asia-Oceania. In the negotiations. It was not to resurface after that date even though France never explicitly abandoned the Spratlys. in which the High Commissioner. 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. negotiations on the Paracels were held in Paris because holding them in Nanking was impossible owing to the intransigence of Chinese public opinion. Letoumeau. General Jacquot. Later on (from 1951 to 1955). 81 . apparently recognized Vietnam's sovereignty over the Paracels though remained silent on the Spratlys. the French Ministry of Foreign Affairs even sought to assert that the Spratlys could not be Vietnamese. Any passage by a French vessel was challenged and protests were sent to the French Consul in Canton. An example was Great Britain which turned to France in 1948 with a request for permission to use Lincoln Island for military exercises. 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 42. Official letter dated 29 April 1949 from the Special Delegate of Wai Kiao Pou.78 This argument was reiterated in a Note from the Department for Asia-Oceania of 11 July 1955. Annex 40.80 In 1947. on the occasion of the drafting of the peace treaty with Japan. referred to a secret letter of agreement of 15 March 1949 addressed to Emperor Bao Dai.. Annex 41.81 This was Nationalist China. b) China The intentions of the Chinese were also very clear as regards the Paracels. These talks were unproductive but were an opportunity for France to reaffirm its rights and to propose that they be put to arbitration. The Paracels were the subject of negotiations with (Nationalist) China from February to July 1947.. to back up the claims of the French Union. though the People's Republic of China took over the Chinese claims on its own behalf 78 79 80 See letter from J. and a further example was the Australian Government which said it was prepared.79 The French position during this period was recognized and supported by other countries. 7 May 1951. French Commissioner General in Indochina. which would appear to have pulled out in May 1950. commenting on the Agreements of 8 March 1949. On 16 June 1955.

Subsequent Development of the Title 119 and asserted them in no uncertain terms. 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. d) The Philippines Lastly. not only for the Paracels but the Spratlys as well. author of the telegram. 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. published on 1 December 1945. e) Multilateral declarations or agreements In the multilateral context. Formosa and the Pescadores. the representatives of the Vietnamese people reaffirmed the sovereignty of Vietnam. since the end of World War II. the Philippines joined the fray in 1950 regarding part of the Spratlys at least. such as Manchuria. And Mr Pignon. The French authorities indicated this in a telegram dated 23 April 1949 to the Ministry of Foreign Affairs.82 This underscores the long-standing nature of Vietnamese intentions. .83 82 83 Telegram of 23 April 1949. 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. Even before the end of the War. Lazar Focsaneanu. there has been an abundance of intentions to act as sovereign forming the highly complex fabric of this case. stating that they would not tolerate occupation of the islands by any hostile force. c) Vietnam During this period. 'Les traites de paix du Japon' (1960) Annuaire Francais de Droii International at pp. Annex 43. which the Japanese had stolen from the Chinese and to expel Japan from all the other territories it had seized by force. already expressed before the War and exemplified by the Japanese military occupation. to restore to the Chinese Republic all the territories. the heads of government of the United States. As we see. were destroyed by the Japanese defeat and subsequent disarmament. 256 et seq. 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. through the Cairo Declaration of 1943.

four solutions were considered:85 a condominium over the abandoned territories of all the States at war with Japan.84 The Treaty was signed on 8 September 1951 between Japan and 48 Allied Powers. Japan renounced all rights. The absence of attribution was to generate much comment and lead to various theories. O'Connell.P. by a Declaration of 15 August 1951. the peace treaty with Japan was to be drawn up. There was neither reservation nor separate declaration by China regarding these territories. The Cairo plan was to expel Japan from them. including the Associated States of Vietnam. China itself was party to the Declaration. following a French recommendation. the former recognizing only Nationalist China and the latter having recognized the People's Republic of China. China's interest in these islands at that time was therefore not decisive. The repercussions of this for the archipelagos in the South China Sea were extremely important.P. whose number included France. Marshal Chiang Kai-shek having been present in person in Cairo. China had been obliged to remain silent on this point. Under Article 2 of the Treaty. 405 el seq. However. the Spratlys and Paracels among them. It cannot have been fortuitous. 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. According to D. where the talks lasted several days. D. Laos and Cambodia. At all events. 'The Status of Formosa and the Chinese Recognition Problem' (1956) American Journal of International Law at pp. the Treaty did not effect any devolution of these territories. unable as it was politically to assert its uncertain claims before the States assembled there. in other words. It was decided not to invite either of the Chinese Governments to attend. Now. admittedly not from within the Conference since it had not been invited to attend. In 1951.120 Chapter III The Spratlys and Paracels clearly form part of the other territories. The omission of the archipelagos from this part of the 1943 Cairo Declaration is remarkable. . But unlike Manchuria. The People's Republic of China protested. the United States of America and the United Kingdom were the host powers at the San Francisco Conference. a partner which had never recognized China's rights over the islands and had even. O'Connell. titles and claims to a number of territories. Formosa or the Pescadores. proposed to China that the matter be referred to the International Court of Justice. the archipelagos concerned here do not form part of the territories 'stolen' from China which the three Governments together proposed to restore to it. Fifty-five States were invited. Some years later. on several occasions.

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

had always been expressed as challenging Vietnam's previous positions and exercising the balance of power. in connection with the draft peace treaty with Japan. the very terms of the (individual or collective) peace treaties with Japan. when France quit Indochina? Leaving aside the claim to the Spratlys by the Philippines. It actually administered the two archipelagos until the Japanese occupation. Chou En-lai's claim. 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. which hesitations may well have weakened its title. through its silence. France left behind the hesitations of the early colonial period. which is a context of breakdown. 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. had no basis and the San Francisco Conference and surrounding events weakened the position of China which. which after 1949 took over the mantle of continuity from the former single Chinese Government. Minister for Foreign Affairs. the latter having all the solemnity of treaty instruments and the former substantial political force. However. warrant the conclusion that at that time the Republic of China ceased asserting rights to the disputed islands. though to varying degrees. made on 15 August 1951. as we have seen. However. signify that Nationalist China. a claim which barely surfaces. Consequently. and rejected by the Conference on 5 September with the Soviet amendment. over this long period (1884-1954/56). True. that 'the Paracels and the Spratlys have always been Chinese territories'. In the Paracels it did so in a clear . Did that claim have any basis since the surviving predecessor State (the Republic of China) had. 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. it will be seen that. the Franco-Vietnamese positions on the one hand and the Chinese positions on the other fluctuated. the People's Republic of China for its part. speaking through Mr Chou en-Lai.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. stated on 15 August 1951. the declarations made in them or from which these treaties stem. How then is one to sum up the situation in 1954/56. These two elements.

68. which would give further credence to the idea of the succession of one China to the other.Subsequent Development of the Title 123 (though belated) affirmation of succession to the rights of Annam. provides support for the maintenance of the title in favour of Vietnam. their position was always the same. the representatives of Vietnam were not able to speak as a State. in the commentary on the San Francisco Treaty (or certain Ministry of Foreign Affairs Notes). Where these islands are concerned. where the idea was mooted that France might wish to keep the archipelagos for itself. Legal Department Note. In the situation which France gradually found itself facing as the World War gave way to the War in Indochina. China has shown great tenacity. combined with the French presence (after the period of hesitation). . since in 1938. However. in 1949 (Bao Dai's directeur de cabinet). its tone was ambiguous. Since the War. Despite certain weaknesses. when they spoke. cit. they added that neither did they belong to Annam either. while China may have made its opinion known sporadically. it was understood that the rights of the two parties would be reserved. Before the War. when France occupied the archipelagos.89 It would therefore be difficult to find any trace of genuine Chinese acquiescence in the Franco-Vietnamese title. it left (South) Vietnam to take over where France left off. p. Chinese interest in the Paracels has been persistent. Nor did China do so later. This desire. or in 1951 (the representative of the Associated State of Vietnam in San Francisco). for although making it clear that the islands were not Chinese. whether in 1925 (the former Minister for War to the Emperor). However. not for Vietnam. it nevertheless did so repeatedly (1909. And so they must remain. 88 89 See M. and in the Spratlys as the occupant of a terra nullius. it maintained both its presence and its claim until. Annex 38. 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. op. Samuels. 1921 and 1932). 6 September 1946.. It did not do so through the mouthpiece of the local mandarins in 1896. through its departure. For China never indicated any acquiescence in the Annamese or French claim.88 Throughout this whole period. the Chinese case is not totally devoid of content. this intention. unless drawing on documents not yet published. The archipelagos had long been Vietnamese.

The country was split into two States as a result of the Geneva Agreements. However. 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. without however maintaining an effective French presence. although the Franco-Vietnamese title was not destroyed. Taiwan has since been largely absent from the whole issue (not totally so in the case of the Spratlys). and France no longer made any claim to the Paracels on its own behalf. even if unlawfully established through the use of force and therefore unable to produce any legal effects. two other critical dates selected from the period under consideration can be suggested. Of the two Chinas (for there are still two Chinese States). 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 1930s.124 Chapter III It is here that the notion of the critical date comes back into its own.e. must be seen together with the duration of the Chinese presence in the islands. Lastly. . It has been seen above that. the conditions in which it was exercised were problematic. 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. it must be acknowledged that the post-war years confused matters a great deal. on these dates. although originally unfounded (i. may be considered as another point in the crystallization of the dispute. The history of Vietnam has been tumultuous and the four decades 19561995 cannot be analysed as a single period. when France first proposed to China to go to arbitration. and in particular 1937. Each of these three 'critical dates' opens up a perspective which appears favourable to the Vietnamese argument. France still possessed a title superior to that of China over both archipelagos (for different reasons). They comprised two very different parts. However. It now remains to consider the fate of the archipelagos during recent decades. in that. in 1909) and greatly weakened by the San Francisco Conference. THE POST-COLONIAL PERIOD In 1956 French troops left the region. The first possibility is to opt for the 1880s. It must also be acknowledged that the Chinese claim. The years 1956-1975 were those of the second Vietnam war. It still claimed the Spratlys.

Subsequent Development of the Title 125 The attitude of both South and North must be examined. in the South there was also a Provisional Revolutionary Government. However. included the archipelagos. and the Amphitrite group by those of the People's Republic of China. 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 year of victory and of Vietnamese reunification.90 In 1956 Saigon's troops also occupied the Spratlys. the United States waged war and supported the 'Saigon administration'. China and the USSR supported the Republic in the north. In January 1974. Foreign Ministry of the Socialist Republic of Vietnam. . The country was torn asunder. matters are more simple. its two halves at war with each other. below the 17th parallel. where a boundary-marker denoting Vietnamese sovereignty was erected. April 1988). The South. However. claimed to have occupied the entire Spratlys archipelago (in a private capacity). The period of the division of Vietnam (1956-1975) Over these 19 years. then pinpoint the declarations indicative of intention. in March 1956 a Filipino citizen. so that between 1956 and 1974 the Crescent group of islands was occupied by South Vietnamese troops. the PRG. The superpowers were involved. along with any contradictions between them. The material elements The Geneva Agreements of 1954 effectively divided Vietnam. the situation in Vietnam was once again one of war. China seized the western Paracels following violent clashes. with soldiers disguised as fishermen. Our analysis must first consider the actual situation in the territory of the archipelagos. Tomas Cloma. or the State of Vietnam. After 1975. 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. or at least some islands. and from then on the whole of the Paracels was under its military control. It was recalled supra how the troops of the Government of Saigon took over from the departing French troops. 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.

It would appear that 1971 was rather the date of a military reinforcement of the Taiwanese presence. 22. 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.93 the People's Republic of China has steadfastly reiterated its intention to act as sovereign. The intention is strongly expressed in the case of the Paracels and is accompanied by a de facto occupation.V. 830. the facts must.91 Since then the Philippines have gradually extended their occupation. . however. the Spratlys were occupied in part by three States.92 Thus. but as the date of the Filipino protest against the occupation by Nationalist China. be seen in the light of intentions. does not accept this argument and reiterates its intention. In order to evaluate the rights of each party. a) The displays of intention of the People's Republic of China Since Chou en-Lai's speech of 1951. 122. J. at p. however. Seep. 91 92 93 94 See Charles Rousseau (1972) Revue Generate de Droit International Public. Taiwan having been present since 1956. which is not recognized in international law if there is a previous titleholder. Taiwan occupied Itu Aba Island on a date which varies depending on the author consulted. The partial occupation of 1956 was extended to the whole of the archipelago in 1974. The elements of intention Several governments then expressed the intention to act as sovereign. at p. Prescott gives the date as 1956. (1988) Novelles sinologiques. It is a military occupation. claiming to have retaken islands which have belonged to it since time immemorial. China. occupying three islands in 1968 and subsequently a further three which were then fortified.126 Chapter III Freedomland. Charles Rousseau mentions 1971. The situation was different in each archipelago. which prevents the administration having legal effects. between 1956 and 1975. ‘which in March 1969 was reportedly renamed the Revolutionary Committee of the Xisha-ZhongshaNansha of Kwangtung Province'.94 This is clearly the mark of an effective administration. albeit one constructed on the basis of an occupation carried out under illegal conditions. Paris.R.

issued by the Ministry of the Interior of South Vietnam. Lastly. the Saigon . A decree concerning the Paracels was issued on 13 July 1961 (creation of the administrative unit of Dinh Hai). However. Nationalist China. Meanwhile the Saigon administration lodged protests against China's conduct on several occasions. maintains its claims on the basis of an actual presence. to reiterate its rights to both archipelagos. the Government of the Republic of Vietnam protested to the United Nations. they were incorporated into the municipality of Phuoc Hai. 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. The territorial partition at the 17th parallel placed both archipelagos in South Vietnam's zone. the Chinese also make their intention plain. in January 1974. Various decrees were issued concerning the administration of the islands and their incorporation into Vietnam's territorial organization. Phuoc Tuy Province. It was therefore for the Saigon administration. 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 Government of South Vietnam never abandoned its unequivocal intention of maintaining its sovereign rights to the two archipelagos. published a policy document on the archipelagos and forcefully condemned the unlawful acts of the People's Republic of China. A further protest was lodged on 20 April 1971. The extension to the Nansha Islands of the administrative office set up in 1959 was the result of a fiction. 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. Under a decree of 6 September 1973. this time with Malaysia. The description of the islands by people who have visited them leaves no room for doubt on this subject. The Spratlys were incorporated into Phuoc Tuy Province on 22 October 1956.Subsequent Development of the Title 127 In the case of the Spratlys. China cannot base its claim on any true occupation or administration. The Saigon administration took advantage of the second session of the Third United Nations Conference on the Law of the Sea. held in Caracas in June 1974. and on this occasion Vietnamese sovereignty over the two archipelagos was reasserted by South Vietnam's Foreign Ministry. b) Vietnam's manifestations of intention During the war years. in the district of Dat Do. following the taking of the Paracels by Chinese forces. on the other hand.

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

. The Government of the Democratic Republic of Vietnam respects that decision and will instruct its responsible national bodies that. 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. on 4 September.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. were specifically included. It was indicated that this involved mainland China and all the islands belonging to China. Articles published by the daily Nhan Dan in 1969 and 1970. the declaration referred to a statement of 14 September 1958 by Pham Van Dong. 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. 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.97 Lastly. 30. China had publicized the fact that it was extending the breadth of its territorial sea to 12 nautical miles. this statement cannot be seen as a legally valid pronouncement. It is true that Phan Van Dong's declaration confines itself strictly to recognition of the breadth of the Chinese territorial sea. To assess these events. Prime Minister in the Government of the Democratic Republic of Vietnam. the Paracels and Spratlys among them. 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 stipulation regarding the breadth of the Chinese territorial sea as being 12 nautical miles will be scrupulously respected. Previously. 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. referring to Chinese airspace 'above the Paracels' aggravated the situation. in the event of contact at sea with the People's Republic of China.

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

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. after April 1975. a naval incident led to the loss of Vietnamese vessels and the deaths of a large number of Vietnamese sailors. Lastly. In the Spratlys. In 1977.100 Malaysia occupied certain atolls in September 1983. and also the many fiimsily argued claims of the two Chinas and the Philippines. The return to a reunified Vietnam after the 1975 victory The years after 1975 were to bring few changes to the Paracels. but at the same time was in talks on this subject with Nationalist China. In the Spratlys. Since that date. pp. the Taiwanese Government.. 100-per-cent occupation by China. Yet 20 years later. 12 May 1978. in March 1988. the eastern part since 1956 and the western part since 1974. . though it has never formally abandoned its rights over the Spratlys. Le Monde. The position of the Philippines fluctuated somewhat as regards its intentions. sought to invoke its rights. op. occupy some small islands. the 99 100 See Charles Rousseau. China dispatched troops to certain cays in the Spratlys. France has remained silent since 1956. the Philippines stepped up their military presence on seven of the islands in the archipelago. the Government of the Philippines not only occupied several islands while stating that it had no territorial claim to this archipelago. 830 el seq. cit. a persistent and very clear Vietnamese claim by the Saigon Government in continuity with the French taking of possession. with the exception of the People's Republic of China. All these States.Subsequent Development of the Title 131 In 1956 however. The first manifestation of sovereignty by this State (over the Spratlys) was in 1951. faced with the claims of the Philippines to the Spratlys. The islands have been under military occupation by the People's Republic of China. The infrastructures in the Paracels have been substantially developed by the Chinese People's Army. Vietnamese forces took over from the detachments of the previous Saigon administration on the islands it had occupied. So in 1975 the situation was as follows: In the Paracels. strongly maintained claims by South Vietnam and an attitude of the Democratic Republic of Vietnam obscured by the events of the war.

protests against acts of the People's Republic of China. The basis of these rights is not indicated. consisting as it does in granting concessions to American oil companies for maritime areas situated in zones which. through acts. but above all in 1974. in particular at the Conference of the 101 102 See Frederic Lasserre. China maintains its claims to both archipelagos and seizes every opportunity to recall its historical rights and to reaffirm its sovereignty. 181 et seq. Nationalist China or any other State concerning the archipelagos. pp. Its attitude is not merely to claim the protruding lands as such. have become more widespread. This it has done in various ways.102 The Philippines have developed their claims to part of the Spratlys. then certain islets in the Spratlys in 1988. political declarations on the occasion of international meetings. Taiwan maintains a garrison on the largest of the Spratlys. such as those of 30 December 1978. . Vietnam is extremely vigilant in pursuing its assertion of sovereignty over the two archipelagos in their entirety. Malaysia claims to have a few rights. 7 August 1979.132 Chapter III Chinese Navy has maintained its presence in the archipelago. The Vietnamese Government seems to be at great pains not to allow this to become abandonment through the absence of signs of intent. The claims. Le Dragon et la mer. The use of force by China to occupy the Paracels in 1956. communiques or declarations.. 5 February 1980. Some of these were administrative instruments attaching islands to certain provinces: the decree of 13 July 1961 by Ngo Dinh Diem. 1996). however. the decision of 9 December 1982 by the Council of Ministers of the Socialist Republic of Vietnam. Itu Aba. and 11 August 1980 or declarations in the framework of certain international organizations. and this despite China's accession to the Convention on the Law of the Sea. Late on the scene. Others included acts relating to the maritime territory. Vietnam is entitled to claim for its own exclusive use. the decree of 6 September 1973 by the Ministry of the Interior of the Republic of Vietnam. under the terms of the Convention. France having effectively occupied the two archipelagos. Harmattan Inc. but also to stake its continued claim to the whole of the South China Sea in the name of historical rights. It is therefore anxious to multiply such signs and wastes no opportunity to recall its rights. President of the Republic of Vietnam. Strategies geopolitiques chinoises en Mer de Chine du Sud (Montreal. meant that Vietnam lost the factual element of its claim. then of France on behalf of Vietnam under colonial rule. the publication of official reports or other heavily documented works. See 'Drawn to Fray' (1997) Far Eastern Economic Review (3 April).101 China's oil policy clearly shows this. This claim is part and parcel of the context of the continuity of the rights of the ancient Empire of Annam. Taiwan persists in its claims.

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. two States are rivals for the Paracels and. leads each party steadfastly to act in such a way as to maintain and improve its position. France aside. . five are rivals for the Spratlys. the dispute. which undoubtedly crystallized earlier. During this period. Hence. as things stand.

Older historical data have generally been mentioned simply by reviewing documents drawn up by the States concerned or published by their national research centres. This redressing of the balance as regards the sources consulted shows the case in a different light. In this respect. The case of the Paracels As regards the Paracels. The bulk of the works hitherto published on this subject have made use of verifiable data from the most recent past. 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 period after World War II. there is a considerable imbalance in favour of the Chinese argument. 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. 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. which is the best publicized. only two States are concerned: Vietnam and China.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. In this book. .

1932). The only hesitations on this score were after the second Vietnamese war.136 Chapter IV The detailed examination of the historical titles attempted in the preceding pages. terminated with China's consent on the advent of France. 1921. 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. they were not such as to affect the conclusion that Vietnam has a title superior to China's. particularly when they have fallen under the hegemony of another power. there were in all only three occasions when China expressed a desire to exercise its rights over the Paracels (1909. from a certain point. The French authorities. from actions which might breach their inalienable 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 . and simultaneously with them. France effectively administered the Paracels and clearly asserted its rights. and even these were only made possible by lack of effective opposition from the colonial power. after the departure of the French. in certain statements by the representatives of the Democratic Republic of Vietnam. the representatives of Vietnam alone. Vietnam's vassalage with respect to China. 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. it does not amount to effective abandonment since. and. could on no account leave China with any rights to the islands. the representatives of Vietnam. Nationalist China abandoned the assertion of its rights. By its silence in the Cairo Declaration or in its bilateral peace treaty with Japan. This claim was asserted in the face of a Vietnamese title established two centuries earlier. While the Vietnamese title may have been weakened by the indifference of the colonial power during the early decades of colonization. based on the most reliable documents. Although these can be explained by the circumstances and by the extreme dependence of that Government on China. During the first half of the 20th century. shows that the Vietnamese title has been clearly asserted since the beginning of the 18th century. China's interest in these uninhabited lands only amounts to a claim of sovereignty after 1909. occupied the islands as far as political circumstances permitted them to do and never ceased to assert their rights. 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.

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

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

. '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. resort to regional agencies or arrangements. for the abstention of any member involved in a dispute. Negotiations do not therefore depend on mediation by third parries and will only be possible bilaterally for the Paracels. Negotiations would depend on a genuine will to negotiate. The Security Council shall. judicial settlement. On the other hand.4 PROSPECTS FOR A SETTLEMENT International law requires States to negotiate. 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. 4 See Michael Bennett. Hence China. multilaterally between the States concerned. conciliation. a permanent member. call upon the parties to settle their dispute by such means. Yet it is impossible to overlook the fact that the Security Council largely lacks the objectivity required of a decision-making organ. arbitration. True. The parties to any dispute. when it deems necessary.Conclusions and Bases for a Settlement 139 the periphery of this vast set of islands. the continuance of which is likely to endanger the maintenance of international peace and security. owing to the special place given to permanent members armed with the right of veto. mediation. This is the meaning of Article 33 of the Charter. 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. but there remains the considerable political might of the Great Powers. On this point. has prevented the Security Council from taking any initiative in this field. and. paragraph 3. for the Spratlys. particularly in 1988. the Charter does provide. when Vietnam attempted to bring the matter before the Council. first of all. enquiry. 448. seek a solution by negotiation. shall. or other peaceful means of their own choice. in Article 27. the People's Republic of China even overlooks its deep-seated antagonism to Taiwan and endorses the claims of the rival Chinese Government. to which the various parties involved in this dispute are signatories.

Under this. namely a special agreement. In a host of documents China has stated loud and clear that it has irrefutable evidence of its ancient historical rights to the archipelagos. However. China has a judge at the Court. but with reservations which exclude the present dispute. China maintains that there is nothing to negotiate. which is a general way of recognizing the jurisdiction of the judicial organ of the United Nations. at pp. In the case of the Paracels. backing this up by an emphatic claim to sovereignty. . the sovereignty of States impedes any significant advance in international law and in its role in peace between nations. may favour such negotiations. Of all the partners involved. 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. the development and reinforcement of regional organizations. and to benefit from the Court's jurisdiction on that basis. This is regrettable. (1993-1994) Yearbook of the International Court of Justice. There remains a second possibility of bringing the matter before the Court (or any other international tribunal which States might wish to approach). It holds the archipelago by military force. access to the International Court of Justice is voluntary. The other States do not agree. 5 See the declaration by the Philippines. Such a tribunal does however exist. namely of refusing to submit their conflicts with other States to a tribunal. in the institution of the International Court of Justice. the judicial organ of the United Nations. The Philippines recognized the jurisdiction of the Court in 1972. Therefore it does not reject the principle of the existence of such a court. Yet in the present state of affairs the prospect of settling the dispute on a negotiated basis is almost nil. On this point. The current circumstances hardly favour such a solution. 117-118.5 It is not therefore possible for one of the States concerned to bring the matter before the Court by means of a unilateral application. since true law can hardly exist without conflicts being justiciable. but have thus reached an impasse. between States which have accepted in advance the compulsory jurisdiction clause. particularly with Vietnam's recent entry into ASEAN (1995). nor Vietnam.140 Chapter IV True. Vietnam is the one which appears to be the most tempted by a judicial settlement. Neither China. renders international law crude and imperfect. The option offered to States on the pretext of scrupulously respecting their sovereignty. nor Malaysia have signed this clause. 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 Spratlys.

they would also become party to the proceedings so that they could set out their rights and seek to protect them. a condominium would be a bulwark against the threat of regional imperialism by a single power. or. how that title has been maintained. there again. to the Falklands. all other things being equal. expounding legal arguments under the spotlight of judicial proceedings would be a factor of peace. In the case of the Spratlys. It is a compromise solution. embodying international collaboration restricted to the management of a single space. are more certain. something which might be achieved under various arrangements. the case of the Spratlys as a whole would be brought before the Court.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. being more clearly established on the basis of the available documents. Were this to happen. unpublished documents at its disposal. 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. In the case of the Spratlys. If China has further. One solution would be to create a condominium. By reducing political tension. The Court's task would not be easy. since only Vietnam and France have acquired true historical titles to the archipelago. particularly its rights to the Paracels. by applying for permission to intervene. . even if the extent and scope of such titles are uncertain. a legal regime established by treaty. whereas the current. These risks are great in the South China Sea owing to the growing strength of the Chinese Navy. 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. highly unstable situation is pregnant with menace. on the basis of events since French colonization. under which several States would jointly exercise over a single territory the powers normally exercised by a single State. Whatever solution is found will require a genuine effort of imagination and co-operation by both the parties and the judges. this study has shown that Vietnam's rights. Keeping the Paracels by force without clarifying these questions means fuelling a future source of discord comparable. the judicial disputatio would enable the judges to establish. 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. Power would be shared.

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. New York: Oxford University Press. belong to the holder of title to sovereignty over land above sea level. managing the resources of the sea or seabed which. cit. The same authors endorse the Chinese proposal for joint development of the area. see Zhou. Jon van Dyke & Noel Ludwig. Charney. but with the unrest facing the world.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. Sharing the Resources of the South China Sea (Martinus Nijhoff. 544. 124 et seq. see Jonathan I. 89.6 In an endeavour to overcome this real difficulty. The future will belong to solutions which take account of interdependence. 1997). South-East Asian Seas: Oil under Troubled Waters. Sovereignty would be jointly managed by the group of States having concluded the agreement governing the condominium. The crucial point would be fixing States' respective shares in the agency. 729. based on the main islands under their control. op. it may perhaps soon appear imperative. and the speed of change.7 whereby States would share exploration rights in delimited zones. totally disregarding previously acquired titles. leaving settlement of the question of sovereignty in abeyance. at p. . enabling it to operate. The agency would be financed by contributions from the States parties to the condominium. p. The road leading to a solution is 6 7 8 For the Chinese claim on this point. pp. in order to rescue States from the impasse into which their rivalries have led them. under the Convention on the Law of the Sea. Mark J. n°4. 1983).. See Mark Valencia. They thus suggest a formula for sharing development rights between the States of the region. This would lead to the award of mining and fisheries concessions. 'Central East Asian Maritime Boundaries and the Law of the Sea' (1995) American Journal of International Law. For an analysis which insists in taking legal titles into account. vol. 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. (Oxford. some authors have suggested sectors as a solution. Valencia. such shares controlling their contribution of the budget but also their share of the profits. since there are not only true islands but also tiny slivers of land scattered over a large maritime area. It will not be easy to determine the shares of the various parties. The agency would redistribute the profits to the States parties.

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

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

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

Oxford and New York: Oxford University Press.. Valencia. B. Vo Long Te. Problems and prospects'. mimeographed paper. M. 1974. M. Les archipels Hoang Sa et Truong Sa selon les anciens ouvrages vietnamiens d'histoire et de geographie. Southeast Asia (30 August 1990). Defense Nationale (January 1988). 1985.. Tu Dang Minh Thu. conference proceedings.M. N.. J. University of Paris X. Saigon. Martinus Nijhoff.. J. in: International Boundaries and Boundary Conflict Resolution.L. South East Asian Seas: Oil under Troubled Waters. van Dyke. Paris: Memoire. 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 . van Dyke. and Bennett. H. D. 1991. Ses problemes juridiques. 'The Spratly Islands Imbroglio: A Tangled Web of Conflict'. Islands and the Delimitation of Ocean Space in the South China Sea. thesis. 1976.l'armee coloniale Liberation Mer et Colonies Le Monde Le Monde colonial illustre Le Monde Diplomatique Newsweek . Le differend des iles Paracels et Spratleys.. Valencia.. 'The Geographical and Political Aspects of Eastern Asia.J. 'Le Japon et la peninsule indochinoise'. 2 vol. and Ludwig.. 1997.150 Bibliography Thomas. 1989. 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. Sharing the Resources of the South China Sea. Les frontieres maritimes de la Chine. Zhou Jian. Tra Dih Gian. Yamane.L.

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

6.Statement by the Foreign Minister of the People's Republic of China. 22 March 1951. 25 March 1952. Ministry of Foreign Affairs of the Socialist Republic of Vietnam. . 1981. . Hanoi. Bulletin du Vietnam. . 15 August 1951). 1979.10. Paris. No. Documents expressing the Chinese positions .7.9. Chou en-Lai. . 5. . Ministry of Foreign Affairs. 1988.Les archipels Hoang Sa et Truong Sa (Paracels et Spratley). Hanoi.8.Les archipels Hoang Sa (Paracels) et Truong Sa (Spratlys) et le droit international.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.La souverainete incontestable de la Chine sur les iles Xisha et les iles Nansha. territoire vietnamien.152 Bibliography MISCELLANEOUS Ad hoc documents produced by the Vietnamese government to explain its position. .Note to the Soviet government from the Chinese government. 15/31 March 1979. . . published by the Courrier du Vietnam. 1984.Report of debates in the Parliamentary Assembly of the Union Francaise. Documents relating to the draft peace treaty with Japan and the San Francisco Conference (1951) .Les nouvelles sinologiques. Information and Press Department. . 30 January 1980.Vietnam's Sovereignty over the Hoang Sa and Truong Sa Archipelagos. on the draft peace treaty with Japan and the San Francisco Conference (Beijing. document published by the Foreign Ministry of the People's Republic of China.Les archipels Hoang Sa and Truong Sa.

40-55 China N. 33. 17th century Dutch naval chart.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. 1018. 597-601 N. 17th century German map. 19-25. Indochina 4. 261. 34. naval charts. 1025. 312 Asia-Oceania.18-40 China 797. 1881 De Lanessan. Paris 1863 Indochina. 1888 . 227. 5. series E. 35. China 96. 608-612. 662.S. 1554 Netherlands. 225. 1010. 684. 308. 17. 1880 Naval charts. 18th century Indochina. 36 N. 559-568. 34 volume No. 6. 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. box 117 In the overseas archives (Aix-en-Provence) Boxes Indochina 32. 271. 1024. 11. 7. 1859 I. 126. 268. 31.F. 1867 Tonkin and Cochin China.S. possessions. 309 MAPS After a systematic trawl through the card-index of the maps department of the National Library in Paris. 1026.18. 610. 1929 AS. boxes 306.C.

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

8 March 1928 15 16 17 18 . 22 January 1929 Map from the 14th year of the reign of Minh Mang Note from the Legation of the Chinese Republic in France. Minister for Foreign Affairs.L. Directorate for Political and Indigenous Affairs. 26 December 1927 Note from Mr Bourgouin. 28 August 1788 Letter from the Chief Resident of Annam to the Governor General of Indochina. 18 April 1921 Letter from the Acting Governor General of Indochina to the Minister for the Colonies.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. Consulate of France in Canton. Thomas) Letter from Captain de Kergariou Locmaria. Minister for Foreign Affairs. 25 May 1950 Note from the Government General of Indochina. 29 September 1932 Internal Ministry of Foreign Affairs Note to the Directorate for Asia from the Legal Adviser. Consul of France in Canton. 20 March 1930 Map showing the occupation of the Spratlys (B. 4 May 1909 Letter from the Minister for the Colonies to the President du Conseil. 6 October 1921 Letter from Mr Beauvais. 6 May 1921 Note from Mr Beauvais. to the Minister for Foreign Affairs. 4 May 1909 Letter from the official in charge of the Consulate of France in Canton to the President du Conseil.

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. Chief of Staff of National Defence. 18 October 1930 Telegram of 4 July 1931 Decree by the Governor General of Indochina. 10 August 1940 Letter from General Juin. 28 July 1930 Letter from the Governor General of Indochina to the Minister for the Colonies. 29April l949 . 6 September 1946 Letter from the Minister of State with responsibility for relations with Associated States to the Minister for Overseas Territories. 17 December 1928 Letter from the Minister for Foreign Affairs to the Minister for the Colonies. acting Minister for the Colonies. 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. 26 February 1929 Letter from the Minister for the Navy. 30 March 1932 Note from the Ministry of Foreign Affairs. Directorate for Political Affairs and Trade (Asia). 21 December 1933 Letter from the Minister for Defence to the Minister for Foreign Affairs. 16 June 1955 Letter from the Wai Kiao Pou to the Consulate of France in Canton. to the Minister for Foreign Affairs. 7 May 1951 Letter from General Jacquot to the Secretary of State with responsibility for relations with Associated States. to the Chairman of the Committee on Indochina. 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. 5 May 1939 Telegram of 8 March 1929 Decree by the Governor of Cochin China. 26 November 1928 Letter from the Acting Governor General of Indochina to the Minister for the Colonies.

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

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

ANNEX 2 .

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

ANNEX 3 .

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. BÃI CHÍNH 1.HOANG SA/ PARACELS/ XISHA ARCHIPELAGO Islands and banks CÁC ĐẢO.

17. 6. 2. 7. 4. 5. 11. 15. 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 . 9. 16.Annex 4 163 II. 19. 8. 20. 14. 12. 21. 3. 13. 10.TRUONG SA/ SPRATLYS/ NANSHA ARCHIPELAGO UNDER VIETNAMESE CONTROL 1. 18.

5. 7. 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. 8. 2. 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. 3. 6. 5. 2. 7. 4.164 Annex 4 UNDER CHINESE 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. 6. 8. 3. 3. 5. 4.

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

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

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. Director of the Oceanographic and Fisheries Department of Indochina. 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. The grounds for temporization.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. The Paracels were specifically excluded from this inquiry. . 135-B of 3 April 1921. To sum up. At that time. The strategic interest of the archipelago seems quite another matter. the French Government has actually never definitively abandoned asserting the historical and geographical rights of the Empire under our protection. Since 1920. Moreover. I can do no better than refer you to the above-mentioned letter from the Chief Resident in Annam. As Mr de Monzie said in the letter you forwarded to me. were reiterated in my telegram No. since Mr Kurosawa. the guano deposits which prompted several applications to the Government General for concessions have been of only minor importance. on the instructions of his Ministry. 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. I should add that Indochina would have a further interest in being mistress of these islands.simply plundered the more accessible parts of them. It appears from a report written in 1927 by Mr Krempf. 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. a radio station on the islands to warn of typhoons would be of the greatest possible benefit to navigation in Indochinese waters. Considerations of expediency alone have so far militated against the official assertion of these rights. initially set out in a note to your Ministry in 1921. which makes this point remarkably well.without permission . was aware that he could not discuss the status of this archipelago with a representative of France. 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. Budgetary considerations alone prevented the actual construction from going ahead. when a Japanese company . As I told you in my telegram of 14 March. that the economic worth of the Paracels has been exaggerated.

France would therefore have had a guarantee against any cession of the islands. 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. An attempt to negotiate on this subject would most probably be doomed to failure. are doubtless no longer so justified in the current state of affairs. As for unilateral action on our part. This has the advantage of reserving our rights until the day when more propitious circumstances allow us to secure their recognition. whether you approve of my view of the matter. deemed that it would be inadvisable to initiate negotiations on the Paracels with a Government which did not have any authority in southern 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. In any event. Minister for Foreign Affairs. However. conclusions which were entirely relevant at the time and which echoed this Government General's view. in 1921 Mr Maugras. I feel we cannot ignore the matter. Charge d' Affaires in Peking. I would be most grateful for instructions or suggestions on this question from your Ministry and from the Quai d'Orsay. . and later Mr de Fleuriau. after consulting the Minister for Foreign Affairs. The Paracels might then constitute a bargaining chip or compensation for our concessions on other points. no doubt you will hold the consequent political drawbacks to be out of all proportion to the importance of the objective to be attained. still a possibility. the most expedient attitude to adopt still appears to be wait and see. 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.168 Annex 5 The latter reason has become far less compelling with the adjournment of the negotiations sine die. and when the mystique of the Kuomintang had not yet reached the heights we see today. Consequently. We may indeed find ourselves obliged to envisage the abandonment of certain advantages and privileges which we currently enjoy in China. I should be obliged if you would let me know. I would even add that the conclusions of the letter of 22 August 1921 from the President du Conseil. 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.

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

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 .

The Paracels archipelago. reports the occupation of the Paracels archipelago in 1816 by Emperor Gia Long. 184-A I have the honour to acknowledge receipt of your letter No. I can do no more than reiterate the facts established by the above-mentioned investigation. 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. Nam-Viet-Dia-Du. as evidenced by works such as Annals of the Annamese Government (DaiNam-Nhat-Thang-Chi). Bishop of Isauropolis and Apostolic Vicar of Cochin China-Cambodia and Champa. Since then. 4. give the following details. who is said ceremoniously to have raised the flag of Cochin China. or Nam-Nhat-Thong-Chi. deserted and barren. Another doi named Bac Hai was later formed and placed under the command of the Hoang Sa doi. the occupation was nonetheless effective. No new information providing a definitive answer to the vexed question of ownership having since emerged. Gia Long reorganized the garrison in the Paracels. a veritable labyrinth of small coral islands and sandbanks deservedly feared by sailors. a geographical work on Annam published in the 14th year of the reign of Minh-Mang. The matter was the subject of a detailed study carried out in 1925. These documents. volume 2. prior to the voyage undertaken by the director of the Nhatrang Oceanographic and Fisheries Institute.ANNEX 8 Letter of 22 January 1929. from the Chief Resident of Annam. and later disbanded it. . seems to have remained res nullius until the beginning of the last century. 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. Hanoi No. translated into English and published in the Journal of the Asiatic Society of Bengal in 1838. Hue. book 6. No. Under former dynasties. a geographical work by Duy-Tan. conserved in the archives of the Annamese Government. to the Governor General of Indochina. In his work The Geography of Cochin China. 103-A Ex dated 12 January 1929 regarding the ownership of the Paracels. Monsignor Jean Louis Taberd.

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

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

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

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

In April 1930. the prime condition for the possession of an island lying far from the mainland is the first effective occupation. Compelling evidence which might justify the French Government's resort to the right of priority of claim is lacking. Since the Paracel Islands already formed part of China's territory. Since the Tenth Year of the Chinese Republic. has never before expressed any claim to occupy these islands. The Chinese Government. thereby bringing these territories into their country's possession. but it omits to mention that 100 years ago Indochina was under Chinese tutelage. having received through the maritime customs service a request from the shipping companies concerned for the construction of a lighthouse. 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. on the occasion of the Meteorological Conference held in Hong Kong. and built houses and fishing boats there to supply their needs. have done so since the distant past.Annex 10 185 geographical position. the French Director of the Observatories of . it is easy to see to which country they should be attached. Indeed. who come here to catch or collect fish and Indochinese people have never been known to settle there. presenting no value from the point of view of colonization. According to international law and custom. Indochina had no right to carry out acts of occupation on the possessions of its suzerain. 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. The only people to visit these places are the inhabitants of Hainan Island. on that occasion either. the remainder of the islands in the archipelago are formed of nothing more than sand or outcrops of coral. subsequently consented. 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 made no protest. in other words the nationals who were the first to settle lands. The natives of Hainan who settled in the Paracels. where guano deposits provide material for fertilizers. moreover. Apart from Woody Island and Lincoln Island. The archives which substantiate these claims may be consulted. The French Government. 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. The Foreign Ministry's Note does not say on what island monuments and tablets were erected.

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

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

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. to exercise for and on behalf of the State under its protection. on the express condition that. it would be difficult to deny that the dispute over the Paracels directly affects Vietnam's 'own interests'. which is determined by the exchange of letters of 8 March 1949 between the President of the French Republic. The Vietnamese Government might therefore express the wish to share in the drafting of the application. such a view is more in line with the current state of the law. and might insist on appointing Vietnamese agents or counsel with instructions to defend the view of the applicant Govemment(s) before the Court. and Emperor Bao Dai. 'Vietnam shall be empowered to negotiate and sign agreements relating to its own interests.e.are titles which belong to Annam and it is in its capacity as the protector State. that France claims to invoke these rights against third States and possibly to obtain recognition of such rights before the International Court. 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. France took possession of the Spratlys in 1931 -1932 'in the name of the Emperor of Annam'. it would be for the French Government. on a narrow interpretation of the text. in his capacity as President of the French Union. ** * .188 Annex 11 A. However. Such demands would probably raise no insoluble legal problems and their moderate character might even prompt the French Government to accept them. responsible for the conduct of Annam's foreign relations. might even demand that the application be submitted in its name. thus constituting a precedent whose ramifications it would be unrealistic to underestimate. However. prior to any negotiation. the powers which it is unable to exercise. acting as protector State. 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. in his capacity as sovereign of Vietnam. the earlier exercise of sovereignty . Were relations between France and Annam still governed by the Treaty of Protectorate concluded in Hue on 6 June 1884. this would present no difficulty. The sole titles to which France lays claim in this case i. Under Article II of these diplomatic instruments.

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

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

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

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

In 1907. there has been no further mention of the Paracel Islands. whether the Paracel Islands were French possessions. Having thus taken possession of the whole of the Paracels on behalf of its Government. he advocated building a lighthouse for the purpose of justifying any subsequent claim to sovereignty on our part. 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. Following these various displays. our Consul in Canton. apparently less enthusiastic than its predecessor. A few days later. until recently under the following circumstances: in a letter dated 20 September 1920. sand. on 24 September 1920. Captain Remy. in the wake of Japan's claims to the Pratas Island group. at least not to our knowledge. 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. at approximately the same time. 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. which might in some way be considered part of that Empire. It formally raised the Chinese flag. unhealthy climate. In such a situation. a Japanese shipping company. 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. having found nothing but rocks. In April 1909.Annex 12 193 this in mind. In explanation. or else 'to turn a blind eye' so as not to stir up Chinese 'nationalism'. Mr Boissonnas suggested in one of his letters that any French concession at all to the Chinese Government. Captain Remy saw fit to reply: . some brackish wells and a torrid. firing a 21-round salute on two of the larger islands. 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. Mitsui Bussan Kaisha. Since that time. the Viceroy of Canton became exercised with claiming ownership of all the groups of islands along the coast of the Celestial Empire. saving that Government's face. Mr Beauvais. Nothing came of the matter. felt it necessary to ask the Commander of the Navy in Indochina. It appears that Mr Beauvais never received a reply. the expedition returned home some days later. would make it easier to settle the matter of compensation for the Tunnam railway. the abandonment by France of all rights to ownership of the Paracels might seem like the compensation demanded. They included the Paracels. I must add that.

who reportedly had the matter investigated in his own archives and in those of the Government General to no avail: 'Deeming the question interesting. but this assertion is based solely on my personal memories and I cannot provide you with any conclusive document in support of this. the Governor of Cochin China requested me to raise it directly with the Ministry of the Navy. Moreover this Government General has . 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. Europe Nouvelle was referring to Captain Remy's reply to the Mitsui Bussan Kaisha Company.No. 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. For whatever reason.' From a letter addressed by the Commander of the Navy to the Government General.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. Recently the Consul of Japan wrote to the Government of Indochina to ask whether France claimed ownership of the islands. . having failed to find any information in the naval records establishing the nationality of the Paracel Islands. Nevertheless. it appears that. Advise origin and purpose of this question 1830/21/1)). the Commander of the Navy had turned to the Governor of Cochin China. 1100/28/29)).' This explains the following cables: . I think I can assure you that they are not a French possession. the Government General was not directly confronted with the question until a telegram of 1 February 1921 from the Ministry of the Colonies. dated 24 January 1921. The telegram referred to a short paragraph which had appeared in the newspaper Europe Nouvelle of 2 January 1921. The reply was negative.194 Annex 12 'There is no paper in the official documents of the Navy allowing the nationality of the Paracel Islands to be determined. the Paracel Islands. 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.No. 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. 569 of 23 January 1921 Navy Paris to Navy Saigon ((Your 206 .

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

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

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

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

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. I must advise you. Minister for Foreign Affairs No. Immediately on his return to Canton he applied for the concession for the island. to enable him to work it in conjunction with the Paracels. 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. of the recent allegations in some newspapers on the subject of the concession for these islands. (Signed) Tulasne . 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./. travelled to the Paracels on a study voyage. On passing through Ch'ang Kiang. for information only and without in any way being able to vouch for their veracity. Incidentally. The civilian Governor approved this application. 74 of 30 September. he noted the existence of an unworked island named Feou-Choei-Cheou ( ) lying very close to this sub-prefecture.ANNEX 14 Letter of 6 October 1921. From articles and Sin Min Kouo Pao published in Min Yi Pao . the holder of the concession for the islands. from the official in charge of the Consulate of France in Canton to the President du Conseil. Mr Ho Jouei-Nien.

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

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

Chinese fishermen had already taken care of the salvage and the copper had been removed. if my memory serves me well. since it is impossible to land on the islands during the north-east monsoon. I have heard it said that we once had this project in mind but drew back in view of the expenditure entailed. they pose a major threat to shipping and may need a lighthouse. Some of them find it much easier to steal from those who have taken the trouble to catch their cargoes of fish. However. recently appointed Consul General of His Britannic Majesty in Yunnansen. Moreover. and the insurance companies were able to obtain receipts for the import duties levied on the ingots by Chinese customs authorities on the island. The Chinese . Bloody fights sometimes break out on such occasions between fishermen from the two countries. a Japanese vessel I believe. answered your questions. Moreover. since the Annamese are in the habit of taking their wives and children with them. the incumbent. these islands. France has as many rights to the islands as China. the insurance companies attempted to salvage the cargo. where it is not unusual to encounter them. the Paracels are of some importance for France: lying halfway between Saigon and Hong Kong. carrying a cargo of copper ingots was wrecked in the Paracels. an incident occurred which elicited from the Chinese a peremptory denial of ownership. who lodged a request for compensation. on the same parallel as Tourane. when they arrived at the scene. you transmitted in code for greater security. In my opinion. 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. Mr Kahn. Yet precisely at the time you requested information on the intentions of the Chinese Government vis-a-vis the Paracels. the women and children are added to the stolen cargo and sold by the Chinese. it would have been necessary to abandon the lighthouse keepers to their fate for all that time. A steamship. the then Consul of Great Britain in Hoihow. The vessel being abandoned by its owners. which. Nonetheless. along with the cargo. who halt there during their fishing trips for a perfunctory preparation of their catch. That was enough for Mr O'Brien Butler. However. 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. in the ports of the Hainan coast. Evidence later emerged that the copper had been taken to Hainan. equidistant from Annam and Hainan. are also visited by Annamese and Chinese fishermen. when our proteges come off worst in the fight.202 Annex 15 which the Chinese Government might have to their occupation.

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

which contains all the requisite information on the short paragraph published in L'Europe Nouvelle. 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. I did not feel I should approach the Ministry of the Navy about this before ascertaining your own views on the matter. 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. to the effect that 'It would perhaps not be excessive./.ANNEX 16 Letter of 18 April 1921 from the Minister for the Colonies to the President du Conseil.' I would much welcome your opinion on this suggestion. in exchange for official recognition that the Paracels are Chinese. (Signed) Illegible . Minister for Foreign Affairs Re: The Paracel Islands Further to your letter No. is a Note prepared by the Government General of Indochina. I would particularly draw your attention to the idea mentioned by Mr Long on the last page of his letter. I would be grateful if you could return the enclosed documents once you have perused them. 441 dated 26 May 1921. 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. Appended to this letter. including geographical and historical relations with Indochina and the known diplomatic background to the current state of affairs. The Note gives the fullest possible account of the question of the Paracel Islands.

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

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

they are circular in shape with a diameter of 300 to 500 metres. Most of these reefs are covered by three to four metres of water even at low tide. 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. very few of which are marked or buoyed. Itu Aba Island (Tizard Bank). two of them have wells. Only three islands. which took soundings and noted some coordinates.000 metres deep. The shipping routes give them a wide berth. such markers as there are being rudimentary. Overall. owing to the poor visibility of the shoals. No trace of any document relating to the territorial situation of the islands has been found in the Ministry's archives. The only remotely detailed observations were made at the end of the last century by the British vessel Rifleman. not without encountering a whole collection of wrecks washed onto the shoals by the currents. passing on the south-east flank. The area is now visited only by a few Chinese fishermen from Hainan. most of them now destroyed. having either a lagoon or an expanse of sand in the centre. Strictly according to the details given by Mr Kurosawa. on the above-mentioned islands. 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. 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. the Japanese claims to the area would totally conflict with the rights of .). the area has the reputation of being dangerous ground for shipping. and over which the sea breaks dangerously in bad weather. it appears that some of them built temporary shelters. in the corridor which separates this area from Palawan Island. coconut palms). Some just break the surface. and between latitude 7°40' and 9° north. the southernmost land belonging to the Philippines. Loai Ta Island and Thi Tu Island. pages 612 et seq. protrude slightly above the water and have sparse vegetation (bushes.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. who find an abundance of turtles and sea cucumbers there.

Similarly. being separated from this coast by an unbroken ocean trench 1.000 to 2. it cannot be denied that.208 Annex 18 sovereignty granted to the United States. especially if. this loss of interest perhaps applies only at the official level./. the islands in question belong neither politically nor geographically to the coastline of Annam. more realistically. However. 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. It therefore seems that France. 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. Nevertheless. which would already bring the Japanese very close to the southern islands of the Philippines and to the immediate vicinity of the Palawan passage.000 metres. 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. In any event. for its part. where we would be more interested in maintaining the status quo. has no need to worry about the mtentions revealed by Mr Kurosawa's inquiry. It may be supposed. .000 metres deep. that they stop at longitude 115° or 116° east of Greenwich. as Mr Kurosawa assured us. in the event of war.

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

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

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

. concerning the possible designs of the Chinese Government on the group of islands known as the Paracels.No. No. from the Minister for Foreign Affairs (Directorate for Asia and Oceania). In that letter. Political Directorate. to the Minister for the Colonies. 252 . the Indochinese administration thus appears to advocate.of 18 February./. does not seem to me sufficiently explicit to warrant a change in that attitude. subject to the application of the Franco-Chinese Agreements of 2 and 15 March 1897. First Bureau. As you point out. 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. Paris. Paris Re: Right of sovereignty over the Paracel Islands By a letter . The letter from the Governor General of Indochina dated 17 December 1928. 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. further to your letter to me of 11 January under the stamp of the Directorate for Economic Affairs. 2276 of 17 December last. 252 .No. enclosed with your above-mentioned letter . you sent me a copy of a letter from the Governor General of Indochina. in respect of the Paracels. dated 26 February 1929.ANNEX 21 Note No. Third Bureau. and which apparently entailed recognizing Chinese sovereignty over the archipelago. a position contrary to that decided upon by the French Government in 1921.of 18 February. 268. and of 4 and 10 April 1898.

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

no doubt with the intention of asserting Chinese sovereignty there. apparently substantiating the view that the historical rights referred to several times by Mr Robin relate to the Kingdom of Annam: (.'.. ./.) '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. and France..214 Annex 22 question. which has a duty to safeguard the integrity of the kingdom under its protection.

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

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

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

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

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

from the French Consulate in Hoihow containing some interesting views on how the Canton Government is pressing China's alleged rights to the Paracels. Mr Dowdal. which sets out the strategic value of the Paracels. This communication is interesting in the same way as the approach to this Government General by Japan in Hanoi. deserted islands which belonged no more to China than they did to Annam. and a copy of letter No. Nos. from Mr Eynard concerning the above-mentioned diplomatic incident. I enclose herewith a copy of a telegram. 704. (Signed) Pasquier .220 Annex 26 the waters of the archipelago. I put this interpretation of the matter to the French Minister in Peking. Please also find enclosed copies of two letters. and which I drew to your attention by my above-mentioned letter No. 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. 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. Meanwhile. Attached to the latter is a note on the Paracels by a British national. 149 from the French Consulate in Hong Kong. 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. 104. 71 and 89. the Chinese Government declared that it had lost interest in the Paracels. Apart from the documentary interest of this note. I shall not hesitate to let you know as soon as I find out. No.

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

to cover the costs of representation and tours of duty. 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. except where it intersects Vulladore Reef. Article 3. 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. Article 2. Having regard to the Decree of 5 October 1936. Article 6. Having regard to Decree No. Section 12.ANNEX 28 Decree by the Governor General of Indochina The Governor General of Indochina Grand Officier de la Legion d'Honneur No. which is wholly contained within the Delegation of the Crescent. The boundary between these two administrative districts shall be determined by the line of the 112th meridian. — 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". On the proposal of the Chief Resident of Annam: DECREES: Article 1.Decree No. — In this capacity. . This allowance shall be chargeable to the local budget of Annam. be entitled to an annual allowance of 400 piastres (400$00) laid down in the Decree of 28 December 1934. Having regard to the Decree of 28 December 1931 regulating the allowances and benefits in kind and in cash. . they shall each. — 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. paragraph 3. 156-SC of 15 June 1932 shall be amended as follows: Article 1.

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

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.ANNEX 29 Encoded telegram of 8 March 1929 Hanoi I have informed the Governor of Cochin China that. like you. (Signed) Pasquier . Also discussion with Commander Bonnelli during my forthcoming visit to Cochin China. diplomatic services and Ministry of the Navy of any proposals . if appropriate. I have no objection to awarding a mining research permit to the Tonkin Phosphates Company in the Spratly Islands. clearly stating those reservations. I would ask you to keep diplomatic services informed of foregoing measures. 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./. After my talks with Senior Commander of troops Saigon. I shall contact you in due course with a view to informing. 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.

ANNEX 30 Decree by the Governor of Cochin China (J. and letters No. . Loaito and Thi-tu which fall under it. Having heard the Conseil prive. Krautheimer Certified true copy of the original Filed in the archives of the Conseil prive . Itu-Aba. Krautheimer). situated in the China Sea. Saigon. Having regard to the Decree of 9 June 1922 for the reorganization of the Colonial Council of Cochin China and to the subsequent texts. Two Islands group.The island named Spratly and the islets named Amboyna Cay. 21 December 1933 THE GOVERNOR OF COCHIN CHINA. Head of Baria Province and the Head of the Land Registry and Topography Department shall be responsible. each in so far as it concerns him. Having regard to letter No. DECREES: ARTICLE 1.The Administrator. . Officier de la Legion d'Honneur Having regard to the Decree of 20 October 1911. Having regard to the deliberations of the Colonial Council dated 23 October 1933. 034. Saigon. 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. shall be attached to Baria Province. for implementing this Decree. 21 December 1933 (Signed) J. ARTICLE 2. 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.

1. the idea of taking possession of banks not permanently uncovered. some of whose crowns are constantly above water. four landing sites (Nos. Please find enclosed with this letter a note from the Hydrographic Service describing the archipelago in question. 242 of 27 February 1931 from the Minister for the Colonies. do not meet this condition. such as Rifleman Bank and Ardasier Bank referred to in letter No. In my view it is not necessary to take possession of all the islands which can be occupied. Only islands which can be occupied should be taken possession of. 3. should be abandoned. 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. 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. reefs.Directorate for Political Affairs and Trade (Asia-Oceania) Re: Taking possession of the islands west of the Philippines By letter 110 of 27 February. in other words. 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. 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. 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. such possession would be pointless and contrary to international law. which is composed of an unexplored part and a part which is better known. In the better-known part.ANNEX 31 Letter of 30 March 1932 from the Minister for National Defence (Navy) to the Minister for Foreign Affairs . those on which men can not only land but also sojourn. in reality. It is not possible to take possession of the unexplored part owing to the dangers to navigation in those waters. The act of taking possession would be worded as follows: . 2. This pre-emptive taking of possession cannot signify that I have the slightest intention of making use of this archipelago for military purposes. and 3 A on the attached sketch.

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

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

in agreement with the Ministry of Foreign Affairs. to place themselves in a legal position on a par with ours. the British Ambassador supported his French colleague in his approaches to the Gaimusho* aimed at ensuring that our rights over the archipelago were respected. Subsequently. the Japanese conceived the idea of setting up a company for the mining of guano and exploiting fishery products. Despite the rebuffs they suffered. on a tour of duty in the South China Sea. no doubt following instructions received from Tokyo. to give concrete form to our occupation. Finally. 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. the Imperial Government published a decree under which the archipelago was annexed to the Japanese Empire and attached to the administrative district of Formosa. There were moments of quite serious tension in the archipelago between the occupants of the French and Japanese camps. set up camp and installed a radio station. They set up a radio station and were supplied by a cargo ship which periodically called in there from Annam. On the outbreak of the Sino-Japanese War. The members of this company. Being determined to gain a foothold in the Spratlys. our representatives resolutely carried out their mission and. At the request of the Ministry. It set a course for the Spratlys. the Japanese grew more * Gaimusho = Ministry of Foreign Affairs . who in reality were Formosan militia led by Japanese officers. would authorize British planes to use them. who were also installed in a camp. However. The protests which the French Ambassador was immediately asked to lodge with the Tokyo Government were dismissed out of hand. and having arrived there. but who were to behave towards the Japanese like simple fishermen. the Navy had a vessel. decided for its part to mark the French presence in the Spratlys and dispatched Annamese militia there. the Japanese Navy immediately expressed its intention to extend its activity to the waters off southern China. landed its men then took them off again. in August 1937. while Japanese fishermen continued to appear from time to time. Our reply was that we would be developing such bases ourselves and that. put in at the Spratlys. as and when appropriate. either by Indochina or by the French Navy.During the ensuing years. The Ministry of the Colonies. no effort was made.

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

On the other hand. There can be no question of establishing a military base in the Paracels. consolidate our position in the any future legal debate on this matter between France and China. If it transpires that the occupation of the Paracels leads to a resumption of the discussion on our rights of sovereignty. it will. to the Chairman of the Committee on Indochina. with the force of the fait accompli.ANNEX 33 Letter from General Juin. 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. Chief of Staff of National Defence. (Signed) Juin . occupying them therefore has no positive military benefit for us. 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.

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

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

One of the shrouds is missing from one mast and three from the other.repairs to guttering and drainpipes. 4. 2. They permit the hauling up of a craft 15 metres in length.provision of a canvas water container with a capacity of 10 cubic metres enabling rapid shipment of drinking water. The shed for the meteorological instruments.The radio and meteorological station currently consists of only an empty building with no doors or windows. . Gauge: 2 metres.repairs to woodwork in living quarters. Its hauling winch is also broken. are in good condition. .234 Annex 34 4. Masonry on the slipway: 120 metres.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). . . The lighter Bourrasque which has run aground on the beach is holed. These steps are listed in order of priority: . There is no longer any radio equipment from the former station or any meteorological observation instruments. . 5. . 28 metres high. . there being no anchorage sufficiently sheltered from the fresh winds which blow very frequently on the island. Repairs to ladder and upper safety railing. The tower needs re-pointing and painting.4 metres in the beam and 1 metre draught (about 15 tonnes). . . 6. The two masts. . which is empty. 5.repairs to rails on slipway. Repairs to gas piping and reconditioning of burner.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.construction of narrow-gauge railway. .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. rotten and beyond repair. The launching cradle and its carriage are in good condition. is still standing.structural repairs to buildings. .The lighthouse could easily be restored to working order.repairs to shrouds on radio masts.

In our view. b) . Fresh supplies ideally need to be delivered during periods when the high tide occurs by day. 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.CONCLUSIONS Independently of all other considerations. it would be useful as soon as possible to send a flat sampan to the island equipped with sail and outboard motor. At that moment. the depth of the sea at that point being 42 metres. could be achieved quite quickly without the need for great expenditure. the distance from the east radio mast is 900 metres.as a form of international co-operation. 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. This period would seem to be the one close to the spring tides. with 4 lengths of chain in the water.and to a far from negligible extent . The anchor held very well in a fresh wind. and can then beach on the shore visible between the coral. This result. which could easily be hauled up the slipway in its present condition.HYDROGRAPHIC INFORMATION a) . the amounts needed being about 10 tonnes of provisions and 10 tonnes of water.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. 7. it would seem. on a seabed of sand and shells. 6. .ANCHORAGE The Commandant Duboc dropped anchor at 155 some 800 metres from the lighthouse.DOCKING Motorized craft can come alongside the slipway from 2 hours before to 2 hours after high tide. The supplier must have motorized craft in excellent condition and equipped with gear properly designed for hauling up in choppy seas. Regular operation of the lighthouse and the meteorological station would mean that our occupation could be seen . . fresh supplies to the island will ideally be required once per month. . This craft would be adequate for showing the flag and for surveillance of the neighbouring atolls.

full of drive. young. On a different topic. Until such time as the water tanks are repaired and filled. 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. The island is an ideal spot climatically. allied to firmness. The detachment currently has a total of 65 such casks. we consider that command of the island should ideally be assigned to an officer from the regular army. experience has shown that the landing of fresh water in casks is a very heavy burden for the supplier. with a basic knowledge of naval matters.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. as well as diplomacy. (Signed) Hennequin . These casks have to be delivered either by rowing boat or motorized craft. 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. dynamic. would not go amiss. having organizational ability and a pioneering spirit. Some circumstances might entail skilful negotiations in which imagination and finesse.

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

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

Nanking. 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. 8 March 1947 No. 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. 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./. This information./. Yet at the same time. 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. 319-320 I refer to my telegram No. 160 and which is acceptable to both parties. (Signed) Meyrier Note from the Cipher Department Telegram No. Mr Yeh. A further press article.ANNEX 35 Telegram from Ministry of Foreign Affairs. 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. announcing that two Chinese warships are to be dispatched to Woody Island. he confirmed to him that. 298 not yet reached the Cipher Department. like that contained in my communication referred to above. 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. according to the Chinese Government. 298 in clear sent by diplomatic bag. * Wai Kiao Pou = Ministry of Foreign Affairs .

of 31 May 1947 and telegram of 3 June 1947 FRANCO-CHINESE RELATIONS Nanking. 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. Among the main resolutions adopted was the immediate return of Macao to China and the withdrawal of French forces from the Paracel Islands. The Ministry of Foreign Affairs declined to comment on this decision by the People's Political Council. . The Council also decided to protest to France at the discrimination allegedly suffered by Chinese nationals in Indochina. A motion for the return of Hong Kong to China was not adopted. Nanking. 'by force' if necessary. 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.ANNEX 36 Wire from Agence France Presse. 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.

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

Geographical position of the Spratlys (see enclosed map) The Spratlys is the name of a group of islands situated in the South China Sea. The only resource is guano which. was mined by a Japanese company. The question of sovereignty over the Spratlys is therefore likely to be raised. These two islands are separated by a distance of 180 nautical miles. Itu-Aba lies 840 kilometres east of Saigon and 600 kilometres from the coast of Annam. Itu-Aba Island. 16 June 1955 No.000 metres in length. which is 1. some 300 nautical miles east of Cape St.300 metres in length. to the Secretary of State with responsibility for relations with Associated States Saigon. longitude 114°21' E As the crow flies. 3 . The official taking of possession was effected by the . General Commissioner of France and Acting Commander-in-Chief in Indochina. Jacques.Background Previously res nullius. Itu-Aba was administratively attached to Cochin China in 1929. 1 . 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.ANNEX 40 Letter of 16 June 1955 from General Jacquot. which is 1. is flat and uninhabited. 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. longitude 111 °55' E Position of Itu-Aba Island: latitude 10°22'N. 3958/SPD/AFG Re: Sovereignty over the Spratly Islands (Spratly Island and Itu-Aba Island) Enclosure: map. prior to World War II. 2 . Spratly Island. is also flat and uninhabited. Position of Spratly Island: latitude 8°40' N.

Foreign designs on the Spratlys PHILIPPINES In 1946. which is that of the Philippines'. 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. He reportedly obtained a prospecting permit from the French Department of Overseas Territories but subsequently abandoned the idea. reportedly declared that the Spratlys. 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'. which had previously been attached to Cochin China.250 Annex 40 Malicieuse on 18 April 1930 and notified to the Official Gazette on 26 May 1933. President Quirino said that 'according to international law. .An aerial reconnaissance of the island was made in 1951. The Chinese Nationalists had no option but to fall into line. Colonel Soriano. . Itu-Aba was occupied by a detachment of the Native Guard of Cochin China from 1938 to 1940.by the Dumont d'Urville in 1938 . made plans to send a mission to Itu-Aba to investigate the prospects for mining guano. CHINA In 1950. a Filipino business magnate. 4 . In 1950. The same year. VIETNAM Tran Van Huu.by the Astrolabe in 1933 . President of the Government. the Government of the Philippines manifested the desire to refer the fate 'of certain islands claimed by France' to the United Nations.by the Chevreuil in 1946 . A French meteorological station was apparently set up there in about 1938. should now be considered Vietnamese territory. the Spratlys belong to the nearest territory. The island has been visited: .The report of the visit was buried in a cement boundary-marker erected on this occasion.by the Commandant Robert Giraud in May 1955 .

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

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

It dropped anchor at 1. approached Lin Island ( ) in our Paracels archipelago.O. from the Headquarters of the 4th Chinese naval base. inspecting the coast of the island as far as the south-eastern sector.O. which states.O. among other things: On 25 April at 1500 hours. then decided to sail along the coast. I saw a green rocket in the south-west.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. Kwok * Wai Kiao Pou = Ministry of Foreign Affairs . 3863. 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. No.W. At 1930 hours the same day. I have just received postal telegram No. 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. I again caught sight of the suspect ship slowly heading north-west. On the morning of the 26th. Seal of the Special Delegate of the Wai Kiao Pou* (Signed) T.500 nautical miles (?) from the island. Having established that the visit and reconnaissance by this French ship were unscheduled. registration A. 0427 Sir. French gunboat. Passing west of the island. that you will order an investigation and communicate the findings in your reply. I hope you will kindly note this. dated 28 April 1949. it proceeded in a southerly direction.. At 1700 hours. headed off in a south-westerly direction and departed. gunboat A.

and a radio and weather station. In a letter of 22 October 1946. the advice-boat Tonkinois sailed from one island to the other in 3 hours and 20 minutes. distributed around Pattle Island. The archipelago has no fresh water and vegetation is sparse. Governor General Doumer recommended that a lighthouse be built in the islands. 350 kilometres from Yulin.ANNEX 42 Note of 15 May 1950 from the Directorate for Asia-Oceania Re: Paracels archipelago I. on 19 January 1947.800 metres long and 1. These facilities. As early as 1899. which is 850 metres long and 400 metres wide. As the crow flies.DESCRIPTION AND IMPORTANCE The Paracels archipelago is situated east of the coasts of Annam. 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. the southern port of that island. . from the French Minister for Overseas Territories to the High Commissioner in Saigon.5 kilometres south-west of Pattle Island lies Robert Island. reefs and shoals. b) the Amphitrites. though this process is problematic. grouped around Woody Island. instructed to reconnoitre the area on 28 February 1937. 490 kilometres on average from Hue and south-east of Hainan. were constructed on Pattle Island. yet it was not until October 1937 that a lighthouse.200 metres wide. which were destroyed during the war in the Pacific. the military authorities attached a certain strategic importance to the Paracels. Before World War II. The Paracels consist of some 30 islets. These islands and reefs are a constant danger to major shipping lanes. Mr Moutet said that. were rebuilt by us in late 1947. formally concluded that France 'must not tolerate any foreign settlement in the archipelago'. the staff of the cruiser Lamotte-Picquet. if the . 87 kilometres separate Pattle Island from Woody Island. which is 1. At a distance of some 3. there are phosphate and guano deposits. Before World War II. which can be mined. falling into two groups: a) the Crescent group.

This attitude certainly changed subsequently. at their instigation. possession of the Paracels held no strategic importance. It now seems to be agreed that the occupation of the Paracels can serve no useful purpose other than for air and maritime navigation. replied. and of the Japanese cargo ship Imegu-Maru. that they belonged neither to China nor to Annam. Doumer. that they were not administratively attached to any Chinese district and that no special authority was responsible for policing them. Chinese fishermen looted the cargo of copper which the ships were carrying and attempted to resell it. 2. 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. even though it was preferable that no foreign power should gain a foothold there. The insurers refused and. alleging that the Paracels were abandoned. to the British insurance company. the High Commissioner's diplomatic counsellor wrote to the Ministry on 2 June 1947 that. The Governor General of Indochina. NEGATIVE ATTITUDE OF CHINA AND FRANCE UNTIL 1907 Following the sinking of the German ship Bellona in the Paracels in 1895. in 1896. radar. the safety of which would be substantially enhanced in these dangerous waters if the archipelago was properly equipped with lighthouses. 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. at half its value. consulted by his Ministry. radios. a French citizen requested information from the Ministry of the Colonies on the possibility of setting up stores selling provisions on the islands. II . In December 1898. The mandarins protested.Annex 42 255 Government was not planning to set up a military base in the Paracels. Mr. TAKING OF POSSESSION BY CHINA (1909-1932) [date unclear] In 1907. in June 1899. 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. 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). For example. and even landing strips. according to the military authorities themselves and according to the current defence plan of Indochina.

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

The Chinese reply of 29 September 1932 rejected the French assertions and proclaimed China's own rights.Annex 42 257 The Ministry's legal adviser. This proposal was not followed up and sovereignty over the islands remained in dispute. failing that. he considered. consulted on two occasions (19 June 1930 and 3 March 1931) considered that the rights of Annam were ancient but insufficiently exercised. OCCUPATION BY FRANCE (1937-1945). Hence. * Wai Kiao Pou = Ministry of Foreign Affairs . Numerous Notes were exchanged subsequently between France and China on this subject. attaching a copy of the Note of 4 December 1931. Our reconnaissance and other missions were stepped up. 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. which was handed to the Chinese Legation in Paris on 4 December 1931 (or 4 January 1932. while those of China were recent yet frequently displayed. but that our position could be reinforced by discreet acts of sovereignty. In view of the practical risk French activities in the islands would incur. In March 1932. as Mr Basdevant advised. built some stone cairns on the principal islands. the date is uncertain). arbitration. the advice-boat Marne. as the Chinese had put the mining of guano in the Paracels up for tender. the French Government proposed an amicable settlement or. A mission was dispatched to the islands from 22 to 30 October 1937 and erected the Pattle lighthouse. for example. On 18 February 1937. In February 1938. in a Note to the Chinese Embassy. In March 1938. 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. The Chinese claims were disputed by the French Government acting on behalf of the Protectorate Annam. it was simply decided to assert our rights in a diplomatic Note. 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. 4.

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

'. 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.Annex 42 259 In a letter from Admiral d'Argenlieu to the Chief of Staff of National Defence. 7.. this mission marked the re-establishment of French rights. for technical reasons. On 13 (?) January 1947. the United States of America and the United Kingdom of the fact. the Ministry urged the French Ministry of Overseas Territories to land some troops on the islands without delay.. On 26 November 1946.' On 23 November 1946. spokesman for the Ministry of Foreign Affairs. * Wai Kiao Pou = Ministry of Foreign Affairs . Mr George Yeh. he would not be able to proceed with the effective occupation of the islands before 15 January 1947. as these islands (the Paracels) command access to the future base of Cam-ranh. on 11 June 1946. our High Commissioner wrote: 'Of itself. On 12 December 1946. On 16 September 1946. 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. c) French protest. the High Commissioner telegraphed that. 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.' 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'. The militia post set up there in 1938 therefore needs to be re-established. a telegram from Saigon stated that the setting up of a permanent station had not yet received the go ahead. 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'. Meanwhile. 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. REOPENING OF THE DISPUTE OVER SOVEREIGNTY BETWEEN FRANCE AND CHINA a) French hesitation. At a press conference in Nanking.

through arbitration. a French detachment was installed there (19 January 1947). together with his detachment. On 29 January 1947. having established.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. landed a detachment of 20 men there. The Wai Kiao Pou* did not oppose this suggestion. in fact found Chinese troops already installed there. the Chinese commander declined the offer. apart from highlighting the strong prejudice which the very principle of recourse to arbitration met with on the part of the Nanking Government. to a definitive solution of the Franco-Chinese dispute. wittingly or unwittingly. offering to take him on board. 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. 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 . The talks were fruitless. the same day. Thereupon. 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. After telegraphing Nanking and requesting instructions from his government. The French commander invited the Chinese commander to evacuate the island. The Ministry therefore came up with various (for China) face-saving formulas designed to lead. 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. the advice-boat Tonkinois. 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. and to return them to Tourane. e) Diplomatic incident between France and China (January 1947). misrepresented the action of the French officer on Woody Island in his report. f) Fruitless negotiations in Paris (February-July 1947). Either because the conduct of the commander of the Tonkinois was inept or because the Chinese commander. the Ministry therefore proposed that the talks be transferred to Paris. uninhabited. The operation aimed at resuming the occupation of the Paracels having been so unhappily delayed. that Pattle Island was uninhabited. on arriving on 17 January 1947 off Woody Island. the advice-boat Tonkinois severed contact on 19 January 1947 and. On 4 July 1947.

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

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

Annex 42 263 .

264 Annex 42 .

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

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