Reconsideringthe Paracel Islands Dispute An International Law Perspective

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Reconsidering the Paracel Islands Dispute: An International Law Perspective
Article in Strategic Analysis · November 2015

DOI: 10.1080/09700161.2015.1090681
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Reconsidering the Paracel Islands Dispute: An

International Law Perspective
Christopher Budd & Dalbir Ahlawat
To cite this article: Christopher Budd & Dalbir Ahlawat (2015) Reconsidering the Paracel
Islands Dispute: An International Law Perspective, Strategic Analysis, 39:6, 661-682, DOI:
10.1080/09700161.2015.1090681
To link to this article: http://dx.doi.org/10.1080/09700161.2015.1090681
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Download by: [Macquarie University Library] Date: 30 October 2017, At: 21:14
Strategic Analysis, 2015
Vol. 39, No. 6, 661–682, http://dx.doi.org/10.1080/09700161.2015.1090681
Reconsidering the Paracel Islands Dispute: An International Law

Perspective
Christopher Budd and Dalbir Ahlawat
Abstract: The Paracel Islands dispute has recently resurfaced as a source of conflict
between Vietnam and China, who both claim sovereignty over the islands from ‘time
immemorial’. This article re-examines their respective claims from an international law
Downloaded by [Macquarie University Library] at 21:14 30 October 2017
perspective. It also focuses on delineating the respective claims with emphasis on

sovereignty, territory and self-determination. Based on available sources, this article
suggests that Vietnam appears to have a more credible sovereignty claim over the
Paracel Islands vis-à-vis China. Having thus assumed Vietnamese sovereignty, this
article then sets out to explore the maritime zones that Vietnam would be entitled to
under the United Nations Convention on the Law of the Sea.
Introduction
ensions in the South China Sea (SCS), which have been simmering for decades,
T have recently come to the boil. This is mainly due to several underlying factors
that contribute to the territorial disputes plaguing the SCS.1 Existing literature con-
tains useful background information but provides little insight into the specific issue
of sovereignty over the Paracel Islands (Paracels) (Figure 1). Similarly, disputes
relating to the Spratly Islands, Macclesfield Bank and Scarborough Shoal also have
unique legal and historical characteristics. Therefore, sovereignty claims over the
Paracels must be considered separately to reach a valid conclusion.
The Paracels form two distinct groups (the Amphitrite Group in the northeast
and the Crescent Group in the southwest) over which control has varied through
the centuries2 and currently rests with China.3 Sovereignty over the Paracels is a
point of conflict between China and Vietnam in the strategically important SCS.4
The literature that specifically deals with the Paracels and the legal issues
involved is often coloured by nationalism, and generally offers the Vietnamese or
the Chinese perspective, as in the case of articles by Nguyen5 and Chang.6 This
article seeks to transcend such biased and counterproductive nationalistic frame-
works and adopts a polygonal approach to assess the claims of both countries, in
terms of international case law, with a focus on sovereignty, territory and self-
determination. The polygonal approach leads to a better understanding of the
nationalistic views advanced by the Vietnamese and the Chinese vis-à-vis the
Paracel Islands in the SCS.
Christopher Budd is a postgraduate student at the Australian National University, Canberra,

Australia. Dr Dalbir Ahlawat is a Lecturer at the Centre for Policing, Intelligence and Counter
Terrorism, Macquarie University, Sydney, Australia.
© 2015 Institute for Defence Studies and Analyses

662 Christopher Budd and Dalbir Ahlawat
Figure 1. Paracel Islands denoting the Amphitrite and Crescent Groups.
Legal frameworks and sovereignty

Claims on the Paracels date back several centuries, and there is no single, clear-cut
legal framework that applies to all relevant historical facts. Rather, different legal
frameworks apply at different times. According to current international case law it is
unjustifiable to retrospectively interpret 2,000 years of history through contemporary
laws that have only existed for about 65 years (the principle of intertemporal law).7 It
holds that actions/claims of states must be judged in their legal-historical context.8
Consequently, this article examines the various historical contexts that have defined
the Paracels dispute, through the lens of international law. Different laws that applied
at different times to the Paracels dispute will be discussed in the following three
distinct, but linked phases.
First phase: the problem of sovereignty

The first phase lasted until the late 19th century. The Legal Status of Eastern
Greenland (Judgment) (1933) (Greenland Case)9 has laid down the principles of
establishing sovereignty. To acquire sovereignty a state must demonstrate both the
will (animus) to act as sovereign and some actual exercise (corpus) of that authority.
This was the doctrine in the mid-1800s, confirmed by arbitral case law and diplomatic
practice.10
Consequently, mere knowledge does not constitute discovery.11 Territories can,
and have, been known to navigators, explorers, geographers and cartographers from
time immemorial12 without any state ‘discovering’ those territories in a manner that
has any legal authority. As per The Island of Palmas Case (or Miangas) (United
States of America v The Netherlands) (Awards) (1928)13 (Island of Palmas), acts of
private individuals not immediately followed up by public authorities cannot be
construed as animus.
In a similar vein, Minquiers and Ecrehos (France v United Kingdom) (1953)
(Minquiers) addressed the question of what constitutes corpus.14 In Minquiers the
Strategic Analysis 663
court required acts that could be considered displays of exclusive state authority over
the territory.15 It was emphasised that corpus was more than minor acts. However, in
determining corpus, the context must be considered; the requirements for corpus (and
subsequently the requirements for effective occupation, discussed below) were fewer
for remote or unsettled territories.16 Moreover, even if corpus was later shown to have
been lacking (after sovereignty had existed), it was not sufficient for loss of sover-
eignty and a territory to become derelicto unless animus was also seen to be lacking.17
Furthermore, it should be noted that the requirements of animus and corpus could
legitimately be fulfilled by conquest.18
Second phase: the problem of territory

The second phase began with the General Act 1885 from the Conference of Berlin19
and continued until the United Nations Charter came into force in 1945. Three
concepts of international law relevant to the Paracels evolved during this period:
first, the consolidation and maintenance of territory; second, the involvement of
third-party states in the territory acquisition process; and third, the concept of state
succession.
New requirements for the consolidation and maintenance of territory were put
forward in the General Act. Although the General Act was specific in nature,20 the
new requirements incorporated in it became universal through practice.21 One of
these requirements was that states must exercise sovereignty through regular
stately acts over the entire territory in question.22 These stately acts were required
to constitute effective occupation of the territory. In case there was ineffective
occupation, the second phase international law deemed this to be insufficient
evidence of a state’s animus.23 In addition, the onus to prove effective occupation
was on the state claiming sovereignty.24 This understanding of the second phase
international law was evidenced by numerous arbitral awards and legal decisions,
and became widely accepted.25 In particular, the Island of Palmas distinguished
between creating sovereignty over territory (which could occur in the same manner
as in phase one) and maintaining sovereignty over territory (which, in phase two,
became harder).
Third-party states became involved in the territory acquisition process as their
acquiescence to a sovereignty claim, or lack thereof, became a consideration while
determining the validity of sovereignty claims and whether they passed the effective
occupation test.26 This acquiescence could be active or passive. Thus, from the
second phase, a protest from another state stalled the validation of the sovereignty
claim until the protest was resolved.27 If sovereignty was being appropriated from
another state, it was important that that state must protest with a suitable degree of
intensity and frequency, otherwise it was considered to have accepted the loss of its
sovereignty. Furthermore, when making a sovereignty claim, a state must notify
other interested states so they have the opportunity to protest.28 In addition, the
Island of Palmas established that recognition and/or acquiescence by third-party
states of the sovereignty of a claiming state, while not in itself a basis for sover-
eignty, could be evidence of sovereignty.29
The concept of state succession evolved in phase two but did not become a settled
area of international law until phase three.30 According to state succession, sovereignty
disputes must identify the predecessor and successor states as far back in time as
possible.31 This is required to determine who (if anyone), at particular times, validly
exercised sovereignty over a territory and—in instances where states split, reunify, cease
to exist and so on32—who represented the claiming state at any given time.
Third phase: the problem of self-determination

The third phase began in 1945 with the UN Charter. The changes in international law
from the second phase to the third related to issues of sovereignty, peoples’ right to
self-determination, acts of aggression, and the codification of state succession.
The Charter Art 2(4) marked a fundamental change in international law.33 For the
first time, conquest was not regarded as a valid means of gaining territory.34 The
validity of conquest had already begun to wane during the second phase; the League
of Nations prohibited wars of aggression35 and the Briand-Kellogg Pact sought to
constrain war.36 Nonetheless, the illegitimacy of conquest only became a universal

norm with the UN Charter in 1945.37
Charter Art 1(2) also conferred the right to self-determination on peoples. The
various impacts of this right were clarified in the Declaration on the Granting of
Independence to Colonial Countries and Peoples.38 The declaration made a point that
was key for the Paracels dispute: that the integrity of a colonial people’s national
territory shall be respected. This meant that, when colonial powers withdrew, the
territory reverted in full to the colonial people, and could not be annexed by anyone
else.39 Moreover, any weakening of a colonial people’s claim to territory could not
lead to a situation of res derelicta if it was ascribable to the policy of the (former)
colonial power.40 This links with the concept of state succession that began in phase
two, as it formalised the evolving customary international law as to who could be
considered to have been acting on a state’s behalf at various points in history.41
Establishing sovereignty over the Paracels

As China and Vietnam both claim to have the original title over the Paracels, this
dispute is about who has better claims as per Minquiers. It is not a terra nullius
dispute42 as Vietnam sometimes argues.43 This section attempts to assess and apply
international case law to the Paracels dispute as applicable during the three phases
outlined above.
Establishing sovereignty
The Paracels have been known to navigators, explorers, geographers and map makers
of various states44 since 111 BC.45 The Paracels also find mention in a host of
historical documents and maps.46 Chiu and Park, who use documents and maps as
evidence of Chinese sovereignty, cite these records in detail.47 The documents and
maps evidence geographical awareness and private visits before the 18th century.
However, the names used for the Paracels in the host of historical documents and
maps vary substantially, as do the parts of the Paracels the documents and maps refer
to.48 This variety does not suggest the recognition of one sovereign. Furthermore,
Chang argues that such documentation comprehensively demonstrates that China’s
sovereignty over the Paracels stretches back over 2,000 years.49 However, as Chiu
notes, the earliest reliable source is from the 13th century.50 Chang51 and Chiu also
cite the use of ‘Paracel Islands’ by fishermen as evidence of sovereignty.52 But, as per
Island of Palmas and Aves Island (Netherlands v Venezuela) (Judgment) (1865),53
such private use does not constitute evidence of sovereignty. Chang and Chiu’s other
first phase evidence includes: Cheng Ho’s 1405 expedition;54 a 1279 astronomical
observation; a 1719 naval patrol; a Chinese diplomat’s 1883 note; and China’s
diplomatic protest against a German survey (also in 1883). But Cheng Ho’s expedi-
tion appears to have been exploratory, not in itself evidence of sovereignty unless
followed by corpus, of which Chang and Chiu present no evidence.55 The 1279
astronomical observation also appears to be a ‘minor act’ (per Minquiers), hardly
demonstrating corpus. This is similarly the case with the 1719 naval patrol. The two
1883 instances demonstrate evidence of sovereignty. It can be concluded that based
on the available evidence and literature the Chinese claim of sovereignty over the
Paracels originates no earlier than the 18th century.
From the 18th century onwards, Vietnam claims to have performed acts of
administration and sovereignty over the Paracels. These include: the creation of the
state-owned Hoang Sa company for the economic exploitation of the Paracels in
1702;56 the annexation of the Paracels in 1816;57 the building of a temple and the
planting of trees to aid navigation near the Paracels in 1835;58 and ordering its navy to
survey the Paracels and leave behind engraved wooden posts in 1836 to mark the
islands as inspected.59 This claim is backed up by Vietnamese documents whose
authenticity has been verified.60 This evidence differs notably from China’s, inasmuch
as it demonstrates state-initiated actions (corpus) rather than those of private indivi-
duals or haphazard government attention. In addition, there is no evidence that any
other state challenged Vietnam’s claims to sovereignty at the time.61 Moreover, given
the geographical attributes of the Paracels, widespread permanent occupation was not
feasible.62 Thus, Vietnam’s acts dating from 1702 appear to meet the accepted
international law requirements for maintaining sovereignty in the first phase.
Notwithstanding Vietnam’s claim, China’s claim could have been stronger.63
As shown above, China does not have any valid sovereignty claim predating the
18th century. However, there is evidence of an 18th-century claim by China. One
brochure produced by China quotes a diary entry from a diplomat travelling to
Britain, in which the diplomat makes mention of the Paracels, and that they belong
to China.64 This diary entry alone does not constitute sufficient evidence for a
claim, but would add weight to any evidence of a Chinese corpus.65 China
consistently mentions visits being made to the Paracels by fishermen, since time
immemorial.66 However, these were not listed as acts of the state67 and thus did
not constitute animus or corpus; specifically: ‘individuals who are not acting in the
name of their government but who are pursuing their own interest[s] [do] not
constitute [taking] possession’.68
In addition, other contemporaneous Chinese accounts describe the Paracels as
‘foreign lands’;69 for example, ‘[the Paracels] form a rampart on the periphery of
[Vietnam]’.70 This dilutes the Chinese claim, which therefore implies acquiescence in
Vietnam’s claim.71 Further evidence from the end of the 19th century or so, including
a Chinese Map of the Unified Empire from 189472 and a Chinese geography textbook
Zhongguo Dihixue Jiao Keshu from 1906,73 highlight that China lacked the evidence
to claim sovereignty over the Paracels in the first phase. The only exception is the
claim that China protested against a German survey of the Spratly Islands in 1883.74
Based on the available literature, it is unclear whether this relates to the Paracels.
Furthermore, this evidence was first cited in 193375 in the context of China (by the
unrecognised military government of Kwangtung) disputing France’s sovereignty
claim.76 Zhou found that the source of this claim was unverified.77 As Kwangtung did
not represent China, the evidence arose after the fact in the context of a dispute, and
the source is not verified, it would not be appropriate to include this incident as
evidence of Chinese sovereignty. However, verification may alter this conclusion.78
As it stands, China’s only relevant evidence so far is the 1883 diplomatic diary entry
and possibly, if verified, the protest against a German survey in 1883. Based on the
above discussion, China does not appear to have any strong evidence to counter
Vietnam’s more substantial body of evidence dating from 1702.
Although China does not appear to have claim over the Paracels in its own right, it
is possible that China could have gained sovereignty over the Paracels through
Vietnam, as during the first phase Vietnam was a Chinese vassal.79 In essence,
China argues that Vietnam acted only on behalf of China, and that therefore
Vietnamese acts merely ‘confirmed Chinese sovereignty over islands which were
not [Vietnamese]’.80
This is a key Chinese argument. According to Chiu, ‘it was against all logic and
common sense that a vassal state could arbitrarily occupy a piece of territory of its
suzerain state’.81 Chiu also uses it as justification for disregarding Vietnam’s 1816
annexation of the Paracels.82 The legal impact of this vassalage, though, is difficult
to deduce, as what it meant was undefined and its importance has varied throughout
history.83 Previous scholarship84 indicates that for Vietnam, adopting such status
confirmed its position as a state. Just as today a state not recognised by the UN is
not a sovereign state, so during the first phase, Asian states that were not recognised
by China (with recognition taking the form of vassalage) were not deemed to be
sovereign states at all.85 In addition, the vassalage status was more cultural than
political.86 Lastly, Chinese documents from the phase indicate that its use of the
term ‘vassalage’ was loose and incoherent. For example, an Official Yearbook of the
Chinese Government87 in the 19th century classed the vassal states as Vietnam,
Burma, Siam, Laos, Britain, the Netherlands, Italy, Portugal and the Holy See. Since
several of these states were self-evidently not Chinese vassals, it is improper to
assume that any of them were vassal states in any sense that is meaningful in a
sovereignty dispute.88 Moreover, Vietnam was a separate legal entity and main-
tained complete autonomy in its foreign affairs, an autonomy that is most often
surrendered by vassal states.89 As Vietnam’s ‘vassal’ status was so tenuous, there-
fore, it is against all logic and common sense that it would affect its sovereignty
over the Paracels,90 an argument also supported by Minquiers.91 Moreover, when
Vietnam became a French protectorate in 1884,92 any vassalage to China that
existed was expurgated. When Vietnam passed into French control, China reacted
with indifference; it made no protest, and did not claim any rights supposedly
acquired on its behalf by Vietnam.93
Overall, this demonstrates that Vietnam successfully claimed and maintained
sovereignty over the Paracels from 1702. No state except China staked any claim
over the Paracels on the basis of acts in the first phase, but China’s claims from
the first phase, which are based on visits by citizens and Vietnam’s vassalage,
appear to be unfounded and incredible.94 China’s only relevant evidence is from
1883 but this does not outweigh Vietnam’s claim. Therefore, it would be fair to
draw the conclusion that at the end of the first phase Vietnam fulfilled more
sovereignty requirements (vis-à-vis the international law applicable at the time)
than China. As a result, Vietnam’s sovereignty claims over the Paracels appear
more credible and convincing.
Framing the territory

The claims of sovereignty put forward by both China and Vietnam over the Paracels
in the first phase raise the question of whether that sovereignty was consolidated and
preserved during the second phase (1885–1945) in accordance with the evolution of
international law (discussed above). From 1884 as a result of the Treaty of Hué,
France became the colonial master of Vietnam and its territories, which complicated
matters further, with legal implications for the sovereignty of the Paracels. Also to be
considered is the Chinese argument that it has a better claim over the Paracels than
France, following the Franco-Chinese treaty of 1887.95
In the beginning of the second phase (1885–1909), China appears to have had
little interest in the Paracels.96 In the late 1890s, responding to British accusations that
China was responsible for the looting of two wrecks (Bellona and Imezi Maru) near
the Paracels, China responded that the Paracels did not belong to it, and that the
Paracels were not administratively attached to any district of Hainan (the Chinese
province closest to the Paracels), and thus China had no liability.97 This incident was
also reported in 1921 by the governor-general of Indochina,98 contrary to Chiu’s
claims that no evidence relating to the incident had been put forward by France or
Vietnam.99 This incident is significant, as the local Chinese authorities in Hainan
rejected the idea of the Paracels being Chinese in any way.100 However, the governor-
general’s note also stated that China believed that the Paracels did not belong to
Vietnam, which marked a shift from China’s position during the first phase.101
The French, from the beginning of the second phase up until the 1920s, were
ignorant of Vietnam’s claim over the Paracels.102 France, however, did show an
interest and its representatives visited the islands, operated a police service of sorts
with its navy, considered building a lighthouse and envisaged sovereignty for itself
but did not yet attempt to acquire it.103
In 1909, however, China reversed its position of non-sovereignty.104 It was
concerned about Japan’s acquisition of the Pratas in 1907,105 and wanted to outflank
any Japanese claim over the Paracels. Consequently, it sent an expedition to the
Paracels in 1909.106 It was an expedition of discovery as it resulted in a descriptive
report,107 which is evidence of the lack of knowledge relating to the Paracels in China
at that time. A second expedition in the same year raised the Chinese flag on the
Paracels. This is the only evidence for the Chinese claim to sovereignty.108 However,
it is also evident that China was by no means certain of its claim, because if it had had
a long existing title it would not have felt the need for such an overt act of symbolic
dominion.109 China disputes this interpretation, arguing instead that the flag was a
reiteration of its sovereignty,110 but China does not provide any legally relevant
evidence of when, where or how its sovereignty had previously been established.111
Furthermore, an entry in the diary of a French person living in Hong Kong at the time
(a contemporaneous, independent source)112 contradicts China’s version to some
extent by suggesting that it was a fact-finding expedition.
Nothing further of significance regarding sovereignty took place until 1921.
During the 1910s, France believed that its claim over the Paracels was at least as
good as any Chinese claim, but that it would not be worth confronting China over the
matter.113 France also did not recognise Japanese sovereignty over the Paracels.114 In
effect, France was a candidate for sovereignty but did not explicitly take it up prior to
1921. However, French correspondence indicated that it might give over its ‘rights’ to
China in return for something else.115 This idea by its nature implied that France
believed it had sovereignty over the Paracels.116 Furthermore, in 1920 the Japanese
asked the French navy for permission to mine phosphate on Woody Island, indicating
that third parties were aware that France might have been sovereign over the Paracels.
Until 1921 France appeared oblivious of the scope of its sovereignty, but did not
formally renounce it.117
From the Chinese perspective, the governor of Kwangtung incorporated the
Paracels into Hainan by an administrative order in 1921.118 However, this was done
in the name of the military government controlling the south of China,119 which in
reality was not an entity representing ‘China’.120 This was a matter of concern for the
French delegation in China, but they did not lodge a formal protest; it seemed
unwarranted because the government of Kwangtung was neither recognised nor
represented all the people of China.121
The situation changed in 1928, when China’s interest in the Paracels noticeably
increased, and it set up a commission to inspect the Paracels.122 The commission
submitted reports which gave ambitious suggestions for developing the island, but
little action followed. Also in 1928, the governor-general of Indochina tentatively
asserted France’s right to the Paracels,123 contrary to Chiu’s suggestion that France
only asserted its sovereignty ‘suddenly’ in 1931.124 The governor-general sought
the advice of French government officials, who affirmed that Vietnam had sover-
eignty over the Paracels, which France could take over.125 In 1930, the French
concluded that Vietnam’s sovereignty had not been lost, and as a result the Paracels
were not res nullius.126 Shortly thereafter, the French position on claiming sover-
eignty was made explicit127 when it formally protested against China auctioning
the rights to mine guano in the Paracels in 1932128 (France offered to take the
matter to arbitration; but China declined129). France followed up this protest by
taking physical possession of the Paracels and making a formal declaration of
sovereignty in July 1933.130 However, in 1938, the Chinese embassy in Paris
unequivocally asserted China’s claim over the Paracels.131 In 1939, France created
two administrative units covering the Paracels, and followed it up with a military
presence.132
China’s claims to sovereignty on the basis of the Franco-Chinese Treaty of June
26, 1887 must be considered, as it is a key Chinese argument.133 This was a treaty
between France (the colonial master of Vietnam) and China, delimiting the boundaries
in the Gulf of Tonkin. The treaty stated that islands east of 105° 43’ belonged to
China134—and these islands were the Paracels. Thus, China argued that as per the
treaty it had acquired sovereignty over the Paracels from the French,135 as at that time
France was sovereign over Vietnam, hence sovereign over Vietnam’s territories,
including the Paracels. Chiu considers this to be a strong argument.136 To understand
China’s argument, it is necessary to interpret the treaty according to the Vienna
Convention of 1969,137 in which the role of good faith in interpretation and the
need to interpret a text with its ordinary meaning was emphasised. The Vienna
Convention also authorised recourse to the preparatory work and circumstances
surrounding a treaty’s creation, where a first interpretation was unclear or absurd.138
Bearing this in mind, the purpose of the Franco-Chinese treaty was to delimit the
frontier between Tonkin and China,139 as the title of the treaty suggests (Convention
Concerning the Delimitation of the Border between China and Tonkin).140 Thus, the
only part of Vietnam that should have been affected was Tonkin; the treaty covered no
other Vietnamese territory. The part about islands east of 105º must be interpreted as
relating to the coastal islands of the two states in the Gulf of Tonkin141 that are within
their territorial seas (three nautical miles according to second phase international
law142). This is the understanding in the French documents. Moreover, the Paracels
were never mentioned in treaty negotiations. Furthermore, when China did apply this
post-hoc interpretation in 1932,143 France lodged its protest, albeit after a year’s
delay.144
At the end of the second phase in 1945, the situation appears to have been that
China begun actively asserting its sovereignty in 1909 (in competition with Vietnam’s
more credible, pre-existing claim), and continued from the 1920s in direct competition
with France’s claim of being the successor of Vietnam’s sovereignty. China, though,
did not meet the international law requirements to acquire sovereignty from Vietnam
(or France).145 Moreover, China’s claims on the basis of the Franco-Chinese treaty
from 1887 appear post-hoc and incredible.146 Therefore, at the end of the second
phase, China appears not to have assumed sovereignty from Vietnam. Sovereignty,
vis-à-vis the international law at the time, belonged either to Vietnam (if it had not lost
its sovereignty, gained in the first phase, to its successor state France); or to France (if,
as a colonial power, it had gained sovereignty by succession).
Establishing self-determination
World War II and Vietnam’s split and reunification necessitate that the discussion of
sovereignty in the third phase be taken up in three periods.
Period 1:1945–1954
There is not sufficient space147 to consider at length the events from WWII until
Vietnamese independence in 1954 due to the complicated situation in the after-
math of World War II. In brief: France consistently asserted its sovereignty over
the Paracels until decolonisation in 1954; Vietnamese governments148 asserted
Vietnam’s sovereignty; and the various Chinese governments149 asserted Chinese
sovereignty.
Consequently, in 1954 Vietnam claimed sovereignty150 on the basis that it has had
sovereignty since the first phase or, if not, that it had sovereignty by virtue of
succeeding France; China’s sovereignty claims dated from ‘time immemorial’151 on
the basis of the arguments discussed above. The only event of note was that the
Chinese military surreptitiously occupied the Amphitrite Group in 1956.152 If, as
argued above, Vietnam has demonstrated a more credible sovereignty claim, this
occupation would constitute an illegitimate use of force by China as per Art 2(4) of
the Charter.153 If so, China’s 1956 acquisition lacks legal effects, as ‘[n]o territorial
acquisition resulting from the threat or use of force shall be recognised as legal’.154
However, this would not be applicable if China succeeds in establishing its claim of
sovereignty.
Period 2: 1954–1974
As Vietnam was split into North Vietnam and South Vietnam between 1954 and 1974,
the intentions and acts of both governments must be considered in accordance with
the Geneva Conference of 1954.155 This is because international law requires effective
occupation to maintain sovereignty. Thus, the actions of both South and North
Vietnam during 1954–1974 can contribute to, or detract from, Vietnam’s claim to
effective occupation. During this phase, South Vietnam had control over the Paracels.
South Vietnam replaced French troops in the Crescent Group with its own troops.
This demonstrates its intention to act as sovereign, apart from meeting the necessary
effective occupation test.156 This was further strengthened by a decree issued in 1961
creating an administrative unit for look after the Paracels.157 South Vietnam thus
clearly demonstrated animus and corpus, irrespective of whether it had original
sovereignty or had succeeded France.
North Vietnam, however, opposed South Vietnam’s position.158 In 1958 Prime
Minister Pham Van Dong acknowledged China’s sovereignty over the Paracels.159
This declaration was seized upon by China to demonstrate that its claims to sover-
eignty had more legitimacy. Did this neutralise or weaken Vietnam’s post-1975 claim
to sovereignty? The simple answer is no. Firstly, the Paracels were located below the
17th parallel160 and therefore in South Vietnam territory. North Vietnam did not have
any authority over the Paracels.161 Secondly, the North Vietnamese government relied
heavily on China in its fight against South Vietnam and, later, the United States. It is
therefore not surprising that North Vietnam would have supported the interests of its
ally even though they were contrary to its own best interests. Moreover, according to
the third phase international law, territorial arrangements in war do not affect sover-
eignty. Taking the above developments into account, Vietnam’s claims to sovereignty
during 1954–1974 appear credible, because all the requirements of maintaining
sovereignty under international law were met by South Vietnam. Lastly, in 1974
China took the Crescent Group by force.162 As South Vietnam had the most credible
sovereignty claim, this likely constituted a second breach by China of Art 2(4).163
Period 3: 1974–present
Since 1974 China has maintained its occupation of the Paracels by the use of force.
Nonetheless, Vietnam has consistently and strongly been asserting its sovereignty claims
at various forums. For example, it claimed sovereignty at the Colombo Meteorological
Conference in 1975;164 passed the Law of the Sea of Vietnam in 2012;165 and submitted a
Note Verbale objecting to China’s positioning of an oil rig in Vietnam’s exclusive
economic zone (EEZ).166 China, however, maintains that it is sovereign on the basis
of original sovereignty,167 which as demonstrated above does not appear to be a very
strong claim. These views are based on the differing understandings of the relevant
international law and how it is applied. Vietnam appears to be closely following the
applicable international law set out above. This appears to make its claims more credible.
There is much scholarship on the sovereignty of the Paracels in the third phase,168
but as demonstrated above, sovereignty originates in the 18th century. To make
arguments regarding sovereignty purely on the basis of the third phase events (as
do, for example, Dosch, Fitzmaurice, Park and Tønnesson169) is to ignore the most
pertinent arguments as well as the arguments of the claimant states themselves.
Applying relevant UNCLOS articles to the Paracels

Based on the above analysis, Vietnam appears to be putting forward stronger sover-
eignty claims over the Paracels. Therefore, it should be entitled to the various
maritime zones. An attempt is made in this section to apply the United Nations
Convention on the Law of the Sea (UNCLOS) to the Paracels to determine the
various maritime zones.
Article 121
The most contentious issue when applying UNCLOS to the Paracels is establishing
which islands come under the definition of ‘rock’ as per Art 121(3), and thus are not
entitled to an EEZ.170 This article takes a narrow view of what constitutes a ‘rock’
when assessing the relevant features.
Archipelagic states and baselines

The Paracels are considered to be an archipelago.171 Art 46 (a) defines an
‘Archipelagic State’ as a state constituted wholly by one or more archipelagos.
Vietnam, being the relevant state, is not wholly constituted by archipelagos, as it is
predominantly a mainland state.
Art 5 defines normal baselines as ‘the low-water line along the coast as marked on
large-scale charts officially recognised by the coastal [s]tate’. As the Paracels are not
an archipelagic state, the other possible method for delimiting baselines would be
straight baselines as set out in Art 7. Straight baselines can be used on deeply indented
coasts, deltas and coasts with an immediate fringe of islands. None of the islands in
the Paracels have deeply indented coasts or deltas. Although it could be argued that
some islands in the Paracels are ‘fringed by islands’, this would appear contrary to the
spirit of Art 7. First, ‘coast’ is consistently used throughout UNCLOS to refer to the
seaward edge of a state’s mainland.172 Islands, by virtue of not being a mainland, do
not have coasts. Secondly, how to determine which island is fringed by other islands,
in the case of a group of islands? Clearly, the islands are to be dealt with under
different articles such as Art 121 (the ‘Regime of Islands’) and Arts 46–54
(‘Archipelagic States’). This understanding is supported by the UN’s own publication
on baselines,173 which sets out the UN’s position on what constitutes a ‘coast with an
immediate fringe of islands’.174 Therefore, Art 7 does not apply to the Paracels, and
the method for drawing baselines is presumptively the normal method (Art 5).
Applying normal baselines

If Vietnam has sovereignty over the Paracels, it is entitled to the various zones
measured from ‘baselines’. This section sets out the baselines as per Art 5 and
these features are as follows.
Woody Island. The low-water line can be established with reference to the recognised
charts.175 However, Woody Island is entitled to a 12 nautical mile territorial sea, and any
islands, rocks, low-tide elevations or reefs within that 12 nautical mile territorial sea can
be used as points for the baselines.176 Therefore, the baseline for Woody Island can be
drawn around the Iltis Bank, Rocky Island, Dongxin Sand, Xixin Sand, South Sand, North
Sand, South Island, Middle Island, North Island, Tree Island and West Sand. Furthermore,
the baseline would be on the seaward side of the reef that surrounds most of those
features.177 So the baseline works out to be around the feature furthest from, but not
more than 12 nautical miles from, Woody Island. The furthest feature to the north is West
Sand (11 nautical miles) and to the south, Iltis Bank (eight nautical miles).
Lincoln Island. As in the case of Woody Island, Lincoln Island has features affecting
baseline delimitation within 12 nautical miles. These are Dido Bank and Pyramid Rock
(Neptuna Bank is outside of the 12 nautical miles and, as a low-tide elevation, not entitled
to any zones of its own). Again, the baseline is on the seaward side of the relevant reefs.
Money Island. As in the case of Lincoln Island, there are features within 12 nautical miles
that extend the baseline’s delimitation from Money Island’s low-water line. The features
include Antelope Reef, Robert Island, Pattle Island, Quanfu Island, Yinyu Zi, Observation
Bank, Shi Bank, Drummond Island and Discovery Reef.178 Again, the baseline is on the
seaward side of relevant reefs. It should, however, be noted that, although Vuladdore Reef
and Passu Keah are within 12 nautical miles of Discovery Reef, they are not included in
the baseline because Discovery Reef is a low-tide elevation and thus not entitled to a
territorial sea, therefore the other features within 12 nautical miles become irrelevant. If
Vuladdore Reef and/or Passu Keah were within 12 nautical miles of an island or rock
(such as Drummond Island), they would have been included in the baseline. However,
Vuladdore Reef and Passu Keah are 15 nautical miles and 24 nautical miles distant
(respectively) from the closest feature, Drummond Island.
Triton Island. Being isolated in the far southwest of the Paracels, Triton Island has no
feature within 12 nautical miles, so the baseline is merely Triton Island’s low-water line
(per Art 5).
The baselines are shown together in Figure 2.

Lastly, it is worth noting that Herald Bank, Bombay Reef, Bremen Bank,
Jehangire Reef and North Reef are not included in any baseline delimitation because
these are low-tide elevations and therefore not entitled to any maritime zones on their
own account. They would need to be within 12 nautical miles of an island or rock to
be included, which they are not.179
Delimiting maritime zones

The maritime zones Vietnam could be entitled to include: a 12 nautical mile territorial
sea (Arts 2 and 3); a 12 nautical mile contiguous zone in addition to the territorial sea
Figure 2. Paracel Islands’ baselines.

Source: Google 2013 with authors’ overlay.
(Art 33); and a 200 nautical mile EEZ (Arts 55–57). These are all measured from the
baseline used for delimiting the territorial sea. The only relevant articles for the
delimiting of these zones are Arts 15 and 74, which dictate that any overlapping
zones are delimited in an equitable manner. The concept of equity when delimiting
maritime zones in international case law is presumptively equidistance.
The first maritime zone for delimitation is around Woody Island. As the
baselines have already been determined (see above), the delimiting of the
territorial sea is uncomplicated. It is a line all points of which are 12 nautical
miles from the baseline. But in the process of delimiting Woody Island’s
territorial sea, it becomes apparent that it overlaps the territorial sea of Lincoln
Island. As a result, the line delimiting Woody and Lincoln Islands’ seas joins
together (see Figure 3).
The case of Money Island is also uncomplicated. Its 12 nautical mile line does
not overlap the line of Woody, Lincoln or Triton Islands. Triton Island is similarly
uncomplicated. All together the territorial seas appear as shown in Figure 3.
Having established the territorial sea, we can now proceed to delimit the contig-
uous zone. As in the case of the territorial sea of Woody and Lincoln Islands, the
contiguous zones of each territorial sea also overlap. This means that there are no
separate contiguous zones, rather only one contiguous zone that spans all the territor-
ial seas within the Paracels (Figure 4).
After the delineation of the baselines and contiguous zone, the delimitation of
the EEZ becomes easy.180 As the closest point of the Paracels to China is approxi-
mately 140 nautical miles, and the EEZ is up to 200 nautical miles, there is an
overlap that needs to be delimited in accordance with Art 74. By applying the
principle of equity, the EEZ can be delimited so that any overlap is divided
equally.181 By this method Vietnam’s mainland EEZ flows into the EEZ of the
Paracels (distinguished by different coloured parts of the EEZ line in Figure 5). It
must be noted that any EEZs that extend from other parts of the South China Sea
have not been included.182
Figure 3. Paracel Islands’ territorial seas.

Figure 4. Paracel Islands’ contiguous zone. (Please view this article online for figures in colour).
Figure 5. Exclusive economic zones. (Please view this article online for figures in colour).
When all the above details and discussion are taken into account, the various
maritime zones created by Vietnam’s sovereignty over the Paracels would appear as
in Figure 6.
Conclusion
This article aimed to determine the state that has more credible sovereignty/territorial/
self-determination claims over the Paracels and consequently the entitlements that
sovereignty entails, as per UNCLOS. Firstly, this article determined that, based on the
intertemporal law principle, sovereignty must be demonstrated across three phases,
and the prevailing international law standards (time immemorial–1885, 1885–1945
and 1945–present).
Figure 6. Paracel Islands’ maritime zones with relevant exclusive economic zones of China and
Vietnam. (Please view this article online for figures in colour).
Secondly, this article applied the relevant international law to the facts of the
Paracels. It concluded that Vietnam appears to have presented the most credible
sovereignty claim at the end of the first phase; that Vietnam or France appear to be
sovereign at the end of the second phase (although which one of the two was unclear);
and that Vietnam regardless most likely continued (and continues) to maintain
sovereignty in the third phase.
Thirdly, the article applied the relevant UNCLOS articles to the geo-strategic
construct of the Paracels. It determined that the correct baseline delimitation method
is the normal method; it delimited the Paracels’ baselines by using this method, along
with the applicable maritime zones.
Overall, on the basis of available sources and the above analysis, Vietnam appears
to have a more credible and convincing sovereignty claim over the Paracels. Hence,
Vietnam should be entitled to the maritime zones set out in Figure 6. However, it
remains to be seen whether the rule of law will apply and whether Vietnam will
consequently receive its UNCLOS entitlements.
Disclosure statement
No potential conflict of interest was reported by the authors.
Notes
1. These underlying factors include political, cultural and strategic considerations. See
International Crisis Group, ‘Stirring up the South China Sea (II): Regional Responses’,
Asia Report, No. 229, 2012; M. Stuart-Fox, ‘Southeast Asia and China: The Role of
History and Culture in Shaping Future Relations’, Contemporary Southeast Asia, 26(1),
2004, pp. 116–139. Such factors range from the influence of the 19th-century worldview
of European nations towards interstate diplomacy to increased demand for fish. See L.
Buszynski, ‘The South China Sea: Oil, Maritime Claims, and US–China Strategic Rivalry’,
The Washington Quarterly, 35(2), 2012, pp. 139–156.
2. Monique Chemillier-Gendreau, Sovereignty over the Paracel and Spratly Islands, Kluwer
Law International, Leiden, 2000.
3. John Garver, ‘China’s Push through the South China Sea: The Interaction of Bureaucratic and
National Interests’, The China Quarterly, 132(4), 1992, pp. 999–1028.
4. Ian Storey, ‘Recent Developments in the South China Sea: Cause for Concern’, Institute of
Southeast Asian Studies, Singapore, 2009, pp. 1–7, at http://goo.gl/zbqGYu (Accessed
December 2, 2014).
5. Dong Manh Nguyen, ‘Settlement of Disputes under the 1982 United Nations Convention on
the Law of the Sea: The Case of the South China Sea Dispute’, The University of Queensland
Law Journal, 25(1), 2006, pp. 145–180.
6. Teh-Kuang Chang, ‘China’s Claim of Sovereignty over Spratly and Paracel Islands: A
Historical and Legal Perspective’, Case Western Reserve Journal of International Law, 23
(3), 1991, pp. 399–421.
7. R Higgins, ‘Time and the Law: International Perspectives on an Old Problem’, International
and Comparative Law Quarterly, 46(3), 1997, p. 75; Lawteacher, ‘Legal Status of Eastern
Greenland’, at http://www.lawteacher.net/free-law-essays/english-legal-system/legal-status-
of-eastern-greenland.php (Accessed December 5, 2014);The Island of Palmas Case (or

Miangas) (United States of America v The Netherlands) (Awards), Permanent Court of
Arbitration, Hague, 1928. Although Island of Palmas was handed down in 1928, it applied
intertemporal law, and hence is an authoritative source of first phase law.
8. Lawteacher, no. 7; Monique Chemillier-Gendreau, no. 2, p. 29. The argument of geographic
contiguity (although common—as, for example, put forward by Argentina regarding the
Falklands and reiterated by Chuck-a-Sang) can also be discounted. Island of Palmas con-
cluded that it had no basis, so much so that ‘even Governments of the same state have on
different occasions maintained contradictory opinions as to its soundness’. See Island of
Palmas, no. 7, p. 22; Daniel K. Gibran, The Falklands War: Britain Versus the Past in the
South Atlantic, McFarland & Company, North Carolina, 1998; K. Hall and M. Chuck-a-Sang,
Intervention, Border and Maritime Issues in Caricom, Ian Randle Publishers, Kingston,
2007. Similarly, it is worth noting that while the Paracels lie within the 200 nautical miles
exclusive economic zone of China and Vietnam, this fact has no bearing on sovereignty over
the Paracels. Sovereignty is to be determined first, and then delimitation of maritime
boundaries is to be undertaken—or reconfigured—in accordance with the outcome.
9. Legal Status of Eastern Greenland (Denmark v Norway) (Judgment) [1933] PCIJ (ser A/B)
No. 53. This is applicable to the first phase as, although heard in 1933, the Greenland Case
considered what the law was in the first phase.
10. Aves Island (Netherlands v Venezuela) (Judgment) [1865], p. 5027; B. Orent and P. Reinsch,
‘Sovereignty over Islands in the Pacific’, American Journal of International Law, 35(3),
1941, p. 443.
11. A. Keller, O. Lissitzyn, and F. Mann, Creation of Rights of Sovereignty through Symbolic
Acts 1400–1800, Columbia University Press, New York, 1938, p. 238.
12. Teh-Kuang Chang, pp. 399–421; Dong Manh Nguyen, ‘Settlement of Disputes under the
1982 United Nations Convention on the Law of the Sea’, p. 157.
13. Island of Palmas, no. 7.
14. Whilst Minquiers was decided in 1953, it rules on what constituted corpus during the first
phase. Minquiers and Ecrehos (France v United Kingdom) (Judgment) [1953] ICJ Rep, p. 47.
15. For example, the United Kingdom proved sovereignty through exercising criminal jurisdic-
tion, levying taxes, registering real property and registering boats. Conversely, although
France placed sea buoys near the reefs, this was insufficient to demonstrate sovereignty.
16. Island of Palmas, no. 7, p. 34; Western Sahara (Advisory Opinion) [1975] ICJ Rep, pp. 9, 43.
17. E. Dickinson, ‘The Clipperton Island Case’, The American Journal of International Law, 27
(1), 1933, pp. 130–133; Aves Island, no. 10; Minquiers, no. 14, p. 47.
18. Some suggest this is a European view not applicable to Asia at the time. Vietnam has stated
otherwise and China has not rejected the ‘European’ view. Ministry of Foreign Affairs,
‘White Paper on the Hoang Sa (Paracel) and Truong Sa (Spratly) Islands’, in Ministry of
Foreign Affairs, Saigon: 1988. For further information, see Monique Chemillier-Gendreau,
no. 2, p. 50.
19. General Act (1885) (Int.).
20. Specific in that it only governed the signatories’ actions in Africa.
21. Formalised in Island of Palmas, no. 7.
22. Western Sahara, no. 16, p. 43; Monique Chemillier-Gendreau, no. 2, p. 30; Island of Palmas,
no. 7, p. 34; K. Hall and M. Chuck-a-Sang, no. 8, p. 154.
23. Minquiers, no. 14, pp. 47 and 71.
25. Monique Chemillier-Gendreau, no. 2, pp. 30 and 53; B. Orent and P. Reinsch, no. 10, p. 452;
K. Hall and M. Chuck-a-Sang, no. 8, p. 145.
26. Kriangsak Kittichaisaree, The Law of the Sea and Maritime Boundary Delimitation in South
East Asia, Oxford University Press, Oxford, 1987.
27. Island of Palmas, no. 7, p. 34.
28. Ibid.
29. Ibid.; Western Sahara, no. 16, p. 12.
30. D. O’Connell, The Law of State Succession, Cambridge University Press, Cambridge, 1956.
31. K. Hall and M. Chuck-a-Sang, no. 8, p. 180; M. Shaw, International Law, Cambridge
University Press, Cambridge, 1997, p. 676.
32. For example, the split between the Republic of China (Taiwan) and the People’s Republic of
China as a result of civil war post-WWII, or the split between the Democratic Republic of
Vietnam (North Vietnam) and the Republic of Vietnam (South Vietnam), with the Republic
of Vietnam ceasing to exist on reunification in 1975.
33. A. Weisburd, ‘Then and Now—Changes in Public International Law over the Life of the
Journal’, North Carolina Journal of International Law and Commercial Regulation, 25(3),
2000, p. 539; Olivier Corten, The Law against War: The Prohibition on the Use of Force in
Contemporary International Law, Hart Publishing, Oxford, 2012.
34. Oliver Corten, no. 33. The Law Against War: The Prohibition on the Use of Force in
Contemporary International Law, p. 12.
35. Ibid., p 14.
36. Ibid.
37. The illegitimacy of force with regards to gaining territory was reinforced in Resolution 26/25
(1970): ‘No territorial acquisition resulting from the threat or use of force shall be recognised
as legal’ (United Nations, Declaration on Principles of International Law Concerning
Friendly Relations and Cooperation among States in Accordance with the Charter of the
United Nations, GA RES 26/25, General Assembly, Commemorative Meeting, UN Doc A/
PV.1883, October 24, 1970).
38. United Nations, Declaration on the Granting of Independence to Colonial Countries and
Peoples, GA RES 1514, General Assembly, 15th Session, UN Doc A/4684, December 14, 1960.
39. Ibid.; United Nations, Declaration on Principles of International Law, no. 37.
40. Monique Chemillier-Gendreau, no. 2, p. 93.
41. United Nations, Declaration on the Granting of Independence to Colonial Countries and
Peoples, no. 38; United Nations, Declaration on Principles of International Law, no. 37.
42. Hungdah Chiu and Choon-Ho Park, ‘Legal Status of the Paracel and Spratly Islands’, Ocean
Development & International Law, 3(1), 1975, p. 17.
43. Nguyen Thai Linh, ‘A Legal Analysis in Support of Viet Nam’s Position Regarding the
Paracel & Spratly Islands’, East Sea (South China Sea) Studies, May 28, 2012 at http://
southchinaseastudies.org/en/publications/vietnamese-publications/698-a-legal-analysis-in-sup
port-of-viet-nams-position-regarding-the-paracel-a-spratly-islands (Accessed May 26, 2014).
44. B. Orent and P. Reinsch, no. 10, p. 443.
45. S. Yeh, ‘Nansha Situation and International Law’, ECON, 19, 1988, p. 27.
46. Teh-Kuang Chang, no. 6; Netherlands, ‘Nautical Chart China Sea’ (Late 1600s), Atlas of
Mutual Heritage, ‘AMH’, at http://www.atlasofmutualheritage.nl/detail.aspx?page=dpos
t&lang=en&id=757 (Accessed April 10, 2014).
47. Hungdah Chiu and Choon-Ho Park, no. 42, pp. 9–11; see also Junwu Pan, Toward a New
Framework for Peaceful Settlement of China’s Territorial and Boundary Disputes,
Martinus Nijhoff Publishers, Leiden, 2009, pp. 163–184. Furthermore, the documents
and maps often mention the Paracels solely to warn others away, as they were perilous
to sail near. It is difficult to demonstrate corpus if pointedly avoiding the territory in
question. For details, see Marwyn Samuels, Contest for the South China Sea, Methuen &
Co., New York, 1982, p. 17.
48. The Spratlys are a series of archipelagos southeast of the Paracel Islands in the South China
Sea. Until at least the 17th century the Paracels and Spratlys were understood to be one group
of islands. The Spratlys are also subject to an ongoing, unresolved sovereignty dispute
between seven states. Monique Chemillier-Gendreau, no. 2, p. 56.
49. Teh-Kuang Chang, no. 6, p.404.
50. Hungdah Chiu and Choon-Ho Park, no. 42, p. 18.
51. It must be noted that Chang’s main source is a Chinese government ministry document from
1980.
52. Teh-Kuang Chang, no. 6, p. 400; Hungdah Chiu and Choon-Ho Park, no. 42, pp. 9–17.
53. Aves Island.
54. Teh-Kuang Chang, no. 6, p. 400.
55. Tan Ta Sen, Cheng Ho and Islam in Southeast Asia, ISEAS Publishing, Pasir Panjang, 2009,
p. 210.
56. L. Quy Don, Phu Bien Tap Luc (1776), ‘Historical Maps back up Vietnamese Claims on
Paracel & Spratly Islands’, The Pacific Chronicle, December 28, 2012, at http://www.
thepach.com/historical-maps-back-up-vietnamese-claims-on-paracel-spratly-islands-part-i/
(Accessed December 31, 2014).

58. National Institute of History, The Authentic Writings on Dai Nam, National Institute of History,
Chinh Bien, 1844; Monique Chemillier-Gendreau, no. 3, p. 68; ‘Historical Documents on
Vietnam’s Sovereignty over the Paracel and Spratly Islands’, Vietnam Net, June 24, 2011 at
http://english.vietnamnet.vn/en/special-report/9787/historical-documents-on-vietnam-s-sover
eignty-over-paracel-and-spratly-islands.html (Accessed November 16, 2014).
59. ‘Historical Documents on Vietnam’s Sovereignty over the Paracel and Spratly Islands’,
Vietnam Net., For a third-party view on Vietnam’s sovereignty, see also Dieter Heinzig,
Disputed Islands in the South China Sea: Paracels, Spratlys, Pratas, Macclesfield Bank,
Harrassowitz, Wiesbaden, 1976.
61. Sovereignty only exists if, when asserted, it is maintained under the international law
applicable at the time; in the first phase immediate challenges to claims of sovereignty
weaken the claim. Island of Palmas, no. 7; A. Von Der Heydte, ‘Discovery, Symbolic
Annexation and Virtual Effectiveness in International Law’, The American Journal of
International Law, 29(3), 1935, pp. 448–471; Kriangsak Kittichaisaree, no. 26.
62. E. Dickinson, no. 17.
63. ‘Q&A: South China Sea Dispute’, BBC News, May 8, 2014, at http://www.bbc.co.uk/news/
world-asia-pacific-13748349 (Accessed December 15, 2014).
64. J. Greenfield, China’s Practice in the Law of the Sea, Clarendon Press, Oxford, 1992, p. 154.
65. Other authors though have concluded that this does form part of a valid Chinese claim. In
doing so they have ignored the fact that the diary entry was not given in an official capacity,
which means it cannot serve as evidence of a state’s claim. See J. Greenfield, no. 64; Island
of Palmas, no. 7.
66. Ministry of Foreign Affairs of the People’s Republic of China, ‘Historical Evidence to
Support China’s Sovereignty over Nansha Island s’, at http://www.coi.gov.cn/scs/article/2.
htm (Accessed December 20, 2014); Teh-Kuang Chang, no. 6, p. 404.
68. Aves Island, no. 10, p. 5036.
69. J. Greenfield, no. 64, p. 154.
70. Dasquang of Thanh, ‘Hai-Quoc Dô Chi’, French Foreign Ministry, 1730.
71. J. Zhou, ‘Les Frontières Maritimes de la Chine’, University of Paris, Paris, 1991.
73. Ibid.
75. Ibid.
76. Ibid.
77. J. Zhou, no. 71, p. 268.
78. Although, should the 1883 German incident be verified, it is unlikely to alter the legal
position on sovereignty in the first phase, as it is only one example against Vietnam’s several
earlier examples.
79. Francois Joyaux, ‘La Chine et le Règlement du Premier Conflit d’Indochin e’, Politique
Entrangere, 45(1), 1980, pp. 248–249.
80. Jean-Pierre Ferrier, ‘Le Conflict des Îles Paracels’, Annuaire Français de Droit International,
21(21), 1975, p. 180.
82. Ibid., p. 13.
84. Francois Joyaux, ‘La Chine et le Règlement du Premier Conflit d’Indochine’, no. 79.
85. Ibid.
86. Ibid. It enabled access to Confucianism and its rituals, the script and so on.
87. Jean-Pierre Ferrier, no. 80, p. 80.
88. Nguyen-Huu-Tru, Quelques Problèmes de Succession d’Etats Concernant le Vietnam,
Bruylant, Brussels, 1976, p. 26.
89. Ibid.
90. It should also be noted that by China alleging vassalage in order to claim sovereignty
acquired by Vietnam, China is accepting as an underlying fact that Vietnam had sovereignty
over the Paracels.

91. In Minquiers, France argued it had sovereignty over the Channel Islands, as the Dukes of
Normandy were French vassals. Britain objected, arguing that France’s title to Normandy was
nominal. The court found this to be the case, further finding that even if France did have
sovereignty originally through vassalage several hundred years ago, unless that sovereignty
was maintained according to the international law of the various times, it produced no legal
effects today. Minquiers, no. 14, p. 47.
92. This was as a result of the 1884 Treaty of Hué (or the Patenõtre Treaty), although there had
been French influence for some time, particularly since the 1862 Treaty of Saigon.
93. Monique Chemillier-Gendreau, no. 2, p. 79. To give a more readily understandable analogy,
for China to argue that Vietnam was a vassal state would be like the United Kingdom, in
2015, arguing that India (as a Commonwealth nation) was a vassal state and hence all Indian
territory actually belonged to the United Kingdom.
95. ‘Convention Concerning the Delimitation of the Border between China and Tonkin’, at http://
www.chinaforeignrelations.net/node/167 (Accessed November 18, 2014).
96. P. A. Lapique, A propos des Îles Paracels, Les Èditions d’Extrême-Asie, Saigon, 1929, pp.
1–14.
97. Ibid., p. 4.
98. Monique Chemillier-Gendreau, no. 2, Annexe 12.
99. Hungdah Chiu and Choon-Ho Park, no. 42, endnote 23.
100. P. A. Lapique, no. 96, p. 7; Monique Chemillier-Gendreau, no. 2, p. 98.
101. In the first phase, Chinese documents acknowledge Vietnam as sovereign—the Paracels
belong to ‘the Kingdom of Annam’. Hai Quoc Do Chi, written in the 22nd year of the
reign of Dasquang of the Qing (1730), Archives of the French Foreign Ministry (AS 1840
China 797), Vol. 13, folio 4, p. 2.
102. Monique Chemillier-Gendreau, no. 2, pp. 33, 103.
103. Ibid., p. 106.
105. Monique Chemillier-Gendreau, no. 2, p. 99; Hungdah Chiu and Choon-Ho Park, no. 42, p.
11.
106. Monique Chemillier-Gendreau, no. 2, Annexe 12. Chiu claims this or a similar voyage was
made in 1907, but even if that were the case it would not affect the outcome. Hungdah Chiu and
Choon-Ho Park, no. 42, p. 11.
108. Ibid.
109. Ibid.
111. Scholars such as Choon-Ho list the extensive contact with the Paracels by Chinese fisherman
as the previous claim of sovereignty. However, as discussed above, the acts of private
individuals do not constitute acts of a state and do not count towards animus, corpus or
effective occupation: Minquiers, no. 14, pp. 47 and 56; Choon-Ho Park, ‘The South China
Sea Disputes: Who Owns the Islands and the Natural Resources?’, Ocean Development and
International Law, 5(1), 1978, pp. 27–59.
112. Although France and China would later be opposing sides with regards to the Paracels, in the
early 1900s France had not yet begun to claim sovereignty over the Paracels and thus had no
ulterior motive. P. A. Lapique, no. 96, pp. 1–14.
114. Ibid., pp. 36–40.
115. Ibid., Annexe 12.
116. Ibid.
117. Ibid., p. 107.
119. Ibid., p. 101.
120. However, Choon-Ho has used actions of the Kwangtung government to support the view of
Chinese sovereignty. Even so, Choon-Ho’s claim that France only ‘suddenly’ protested the
Kwangtung government’s actions in 1931 is false—the French government had paid close
attention to the Kwangtung government’s actions since 1921. Choon-Ho Park, no. 111.
121. Monique Chemillier-Gendreau, no. 2, p. 101, Annexe 12.

126. P. A. Lapique, no. 96, p. 9.
128. Ibid., p. 102.
130. Jing Huang and Andrew Billo (eds.), Territorial Disputes in the South China Sea: Navigating
Rough Waters, Palgrave Macmillan, London, 2014.
132. Hungdah Chiu and Choon-Ho Park, no. 42, p. 8. During WWII, sovereignty claims over the
Paracels were frozen. The claimants were busy making their strategic calculations to face the
vagaries of the war. Moreover, no current claimant uses events during WWII as evidence of
their sovereignty. Consequently, detailed discussion of the Paracels during WWII is not
required. Monique Chemillier-Gendreau, no. 2, pp. 97 and 115.
134. ‘In Guangdong, it is agreed that the contested points situated to the east and northeast of Mangjie
[Monkaï], beyond the border as was fixed by the delimitation commission, are assigned to
China. The isles which are to the east of the meridian of 105° 43‘ longitude east of Paris, which
is to say of the north-south line passing through the eastern point of the island of Chagu [Tch’a-
Kou or Ouan-chan (Tra-co)] and forming the border, are similarly assigned to China. The Jiutou
[Go-tho] islands and other islands which are to the west of this meridian belong to Annam.’
‘Convention Concerning the Delimitation of the Border between China and Tonkin’, no. 95.
136. Ibid., p. 19.
137. Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, entered into
force on January 27, 1980.
138. Vienna Convention on the Law of Treaties, Art 32, at https://treaties.un.org/doc/Publication/
UNTS/Volume%201155/volume-1155-I-18232-English.pdf (Accessed December 12, 2014).
139. ‘[China and France] have decided to record in the present act the following arrangements for
the purpose of definitively settling the delimitation of the said border [between China and
Tonkin]. . .’ (‘Convention Concerning the Delimitation of the Border between China and
Tonkin’, no. 95).
140. Ibid.
141. Ibid., p. 84.
142. H. Kent, ‘The Historical Origins of the Three-Mile Limit’, The American Journal of
International Law, 48(4), 1954, pp. 547–553.
145. Island of Palmas, no. 7. China’s actions post 1909 would have met the test for acquiring
sovereignty or maintaining existing sovereignty, but the fact remains that Vietnam was
sovereign over the Paracels in 1909, not China.
146. Monique Chemillier-Gendreau, no. 2, pp. 84–86.

147. For a detailed account, see Stein Tønnesson, ‘An International History of the Dispute in the
South China Sea’, in Geoff Wade (ed.), China and Southeast Asia, Routledge Library on
Southeast Asia, Vol. VI, Abingdon, 2009, pp. 337–362.
148. The communist Democratic Republic of Vietnam, the secessionist Republic of Cochinchina,
the State of Vietnam (part of the French Union) and the Republic of Vietnam (replaced the
State of Vietnam). For details, see Li Tana, Nguyen Cochinchina: Southern Vietnam in the
Seventeenth and Eighteenth Centuries, Cornell University, Ithaca, NY, 1998.
149. The Republic of China (contemporary Taiwan) and the People’s Republic of China (con-
temporary China).
150. Ministry of Foreign Affairs, ‘White Paper on the Hoang Sa (Paracel) and Truong Sa (Spratly)
Islands’, at http://www.spratlys.org/collection/claims/vietnam/vietnam2.htm (Accessed
December 18, 2014).
151. Ministry of Foreign Affairs of the People’s Republic of China, ‘Historical Evidence to
Support China’s Sovereignty over Nansha Islands’, no. 66.

153. United Nations, ‘The Charter of the United Nations’, Art 2(4), at http://www.un.org/en/
documents/charter/chapter1.shtml (Accessed November 26, 2014).
154. United Nations, Declaration on Principles of International Law, no. 37.
155. James Cable, The Geneva Conference of 1954 on Indochina, MacMillan Publishers Limited,
London, 2000.
159. Monique Chemillier-Gendreau, no. 2, pp. 128–129.
160. James Cable, no. 155.
162. Hungdah Chiu and Choon-Ho Park, no. 42, p. 4; Marko Milivojevic, ‘The Spratly and
Paracel Islands Conflict’, Survival, 31(1), 1989, pp. 70–78.
163. The first being in 1956. Charter of the United Nations 2(4).
164. ‘Historical Documents on Vietnam’s Sovereignty over the Paracel and Spratly Islands’, no.
58.
165. ‘Vietnam Passes Law to Protect Sea and Islands’, Thanh Nien News, June 22, 2012, at http://
www.thanhniennews.com/index/pages/20120622-vietnam-passes-laws-to-protect-sea-islands-
keep-ads-under-control.aspx (Accessed May 12, 2014).
166. ‘Note Verbale No. 359/NG-UBBG of MFA Viet Nam to MFA China over China’s Illegal
Deployment of the Oil Rig Haiyang Shiyou 981 in the Exclusive Economic Zone and
Continental Shelf of Viet Nam’, July 6, 2014, at http://www.vietnam-un.org/en/vnun.php?
id=268 (Accessed September 18, 2014).
167. Ministry of Foreign Affairs of the People’s Republic of China, ‘Position Paper of the
Government of the People’s Republic of China on the Matter of Jurisdiction in the South
China Sea Arbitration Initiated by the Republic of Philippines’, December 7, 2014, at http://
www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1217147.shtml (Accessed August 12, 2014).
168. Michael Thai, ‘Who Owns the Paracel Islands?’, The Hypermodern, July 23, 2009, at http://
www.thehypermodern.com/2009/07/23/who-owns-the-paracel-islands/ (Accessed May 26,
2014); ‘History of the Current Issue’, at http://www.mtholyoke.edu/~nguye22h/classweb/
Untitled-4.html (Accessed May 26, 2014); Nguyen Thai Linh, no. 43; Ang Cheng Guan,
‘The South China Sea Dispute Revisited’, Australian Journal of International Affairs, 54(2),
2000, pp. 201–215.
169. Jörn Dosch, ‘The Spratly Islands Dispute: Order-Building on China’s Terms?’, Harvard
International Review, August 18, 2011, at http://hir.harvard.edu/the-spratly-islands-dispute-
order-building-on-china-s-terms (Accessed May 26, 2014); Gerald Fitzmaurice, ‘The Law
and Procedure of the International Court of Justice, 1951–4: Points of Substantive Law. Part
II’, British Yearbook of International Law, 32, 1955, pp. 20–44; Choon-Ho Park, no. 111;
Stein Tønnesson, no. 147.
170. For discussion on Art 121(3), see Jonathan I. Charney, ‘Rocks that Cannot Sustain Human
Habitation’, The American Journal of International Law, 93(4), 1999, pp. 863–878; B.
Kwiatkowska and A. Soons, ‘Entitlement to Maritime Areas of Rocks which Cannot
Sustain Human Habitation or Economic Life of Their Own’, Netherlands Yearbook of

International Law, 21, 1990, pp. 139–181; Roger O’Keefe, ‘Palm-Fringed Benefits: Island
Dependencies in the New Law of the Sea’, International and Comparitive Law Quarterly, 45
(2), April 1996, pp. 408–420.
171. By Vietnam: ‘Chinese Ship Attacks Vietnamese Fishing Boat’, Tuoitrenews, May 25, 2013,
at http://tuoitrenews.vn/society/9973/chinese-ship-attacks-vietnamese-fishing-boat-off-hoang-
sa (Accessed July 27, 2014). By China: ‘An Introduction to China’s Provinces,
Municipalities and Autonomous Regions’, at http://www.china.org.cn/english/features/
ProvinceView/168052.htm (Accessed October 18, 2014).
172. For example, UNCLOS, Art 2, at http://legal.un.org/ilc/texts/8_1.shtml (Accessed October
26, 2014). Prescott concludes that China, in setting out its Paracels baselines (to which it is
not entitled), has erred by considering the Paracels to be ‘fringed by islands’: John R. V.
Prescott, The South China Sea: Limits of National Claims, Maritime Institute of Malaysia,
Kuala Lumpur, 1996, pp. 18–19.
United Nations, ‘The Law of the Sea: An Examination of the Relevant Provisions of the
173.
United Nations Convention on the Law of the Sea’, Office for Ocean Affairs and the Law of
the Sea, New York, 1989.
174. Ibid.
175. It is unclear whether recognised charts exist. Nonetheless, the authors have been unable to
obtain any recognised charts. Therefore the low-water line has been estimated on the basis of
Google Earth. While this is not sufficiently accurate for negotiations between states, in the
authors’ opinion it is sufficient to contribute to the literature on what the Paracels’ maritime
zones look like when UNCLOS is applied.
176. UNCLOS, Arts 6, 13 and 121.
177. For example, as Rocky Island is entitled to a baseline, and does not share a baseline with
Woody Island, there is a baseline surrounding each island.
178. Yagong Island and Xianshe Bank are not included in the list as they fall within the baseline
constituted by the outermost features.
179. This is relevant to China’s claim over the Paracels—China’s claimed baseline points go
around North Reef and Bombay Reef. This means that even if China’s sovereignty claim
were legitimate, the maritime zones it is claiming are inconsistent with international law,
because North Reef and Bombay Reef are not within 12 nautical miles of an island or rock
and therefore not entitled to any maritime zones. See also John R. V. Prescott, no. 172, pp.
17–20.
180. The EEZ is not an extension of the territorial sea or contiguous zone, but is its own zone
measured from the relevant baseline.
181. The baselines used for China are from People’s Republic of China, ‘Declaration of the
People’s Republic of China on the Baselines of the Territorial Sea of the People’s Republic
of China’; and the baselines used for Vietnam are from the Socialist Republic of Vietnam,
‘Statement of 12 November 1982 by the Government of the Socialist Republic of Viet Nam
on the Territorial Sea Baseline of Viet Nam’ (United Nations, 1982), at http://www.un.org/
depts/los/LEGISLATIONANDTREATIES/STATEFILES/VNM.htm (Accessed September
10, 2014).
182. The Spratlys, to the south, are claimed by several states so determining their EEZs is at
present difficult because of conflicting claims. However, if/when those claims are resolved,
the southern border of the Paracels’ EEZ could be affected. Also, the easternmost point of the
Paracels’ EEZ may overlap slightly (by less than 10 nautical miles) with the EEZ of the
Philippines. This has not been taken into account.
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Reconsidering the Paracel Islands Dispute: An International Law Perspective

Article in Strategic Analysis · November 2015

Christopher Budd Dalbir Ahlawat

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Reconsidering the Paracel Islands Dispute: An

Christopher Budd & Dalbir Ahlawat

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Reconsidering the Paracel Islands Dispute: An International Law

perspective. It also focuses on delineating the respective claims with emphasis on

Christopher Budd is a postgraduate student at the Australian National University, Canberra,

© 2015 Institute for Defence Studies and Analyses

Figure 1. Paracel Islands denoting the Amphitrite and Crescent Groups.

Legal frameworks and sovereignty

First phase: the problem of sovereignty

Second phase: the problem of territory

Third phase: the problem of self-determination

constrain war.36 Nonetheless, the illegitimacy of conquest only became a universal

Establishing sovereignty over the Paracels

Framing the territory

Applying relevant UNCLOS articles to the Paracels

Archipelagic states and baselines

Applying normal baselines

The baselines are shown together in Figure 2.

Delimiting maritime zones

Figure 2. Paracel Islands’ baselines.

Figure 3. Paracel Islands’ territorial seas.

of-eastern-greenland.php (Accessed December 5, 2014);The Island of Palmas Case (or

(Accessed December 31, 2014).

over the Paracels.

121. Monique Chemillier-Gendreau, no. 2, p. 101, Annexe 12.

146. Monique Chemillier-Gendreau, no. 2, pp. 84–86.

Support China’s Sovereignty over Nansha Islands’, no. 66.

Sustain Human Habitation or Economic Life of Their Own’, Netherlands Yearbook of

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