Nguyễn Thái Linh
LL.M.(University of Warsaw, Warsaw, Poland)
Dương Danh Huy
Translated by Nguyễn Trịnh Đôn
The disputes over the Paracel and Spratly Islands are among the most prolonged territorial disputes in the world today, and, from the legal point of view, among the most complicated. These disputes have dragged on for over a hundred years in the case of the Paracels and over sixty years in the case of the Spratlys. Furthermore, the tension resulting from the disputes has been increasingly escalated. To understand the complex nature of these disputes, a comprehensive integration of historical, legal, and political perspectives is required. This essay reviews and analyses the arguments of the claimants in the light of international law.
The Paracel Islands are disputed between Viet Nam, the People’s Republic of China (hereafter referred to as “China”), and the Republic of China (“Taiwan”), all of which claim sovereignty over the whole archipelago.
The dispute over the Spratly Islands involves Viet Nam, China, Taiwan, the Philippines, Malaysia, and Brunei Darussalam (“Brunei”). While the first three claimants assert their sovereignty over the whole archipelago, the Philippines (since 1951) and Malaysia (since 1978) have claimed parts of the archipelago, and Brunei has only claimed a single feature (Louisa Reef, since 1984).
1. Arguments from Viet Nam
The Paracel and Spratly Islands have been subject to the sovereignty of Viet Nam by reason of terra nullius (land not belonging to any sovereign State) effectively occupied by Viet Nam since the 16th century.
According to international law, the discovery of a terra nullius itself does not sufficiently legitimize any legal status for the discovering State over that territory. To acquire sovereignty over the terra nullius, a State must effectively occupy that territory. There are two principles that must be followed to acquire sovereignty. The first is the principle of actuality, which requires that the State actually possesses the terra nullius, considers it as part of the State’s territory, and exercises State authority and administration over it for a reasonable period of time. The second is the principle of publicity, which requires that the possession by a State must be announced to, or acknowledged by, other sovereign States1. An individual or a company cannot acquire sovereignty over a territory.
In addition to the material (corpus) element, the actual possession also requires the intentional (animus) element of whether a State wishes to possess the terra nullius.
To demonstrate its actual possession of the Paracel and Spratly Islands, Viet Nam asserts the following arguments:
- The States of Viet Nam knew of the Paracel and Spratly Islands, grouped them together and named “Đại Trường Sa” (Hán-Nôm: 大長沙 ; English: Grand Long Sand), “Hoàng Sa” (黃沙, Yellow Sand), or “Vạn Lý Trường Sa” (萬里長沙, Ten-Thousand-Mile Long Sand), and considered them as part of Viet Nam’s territory.
- Throughout more than three hundred years, from the 16th to the 19th centuries, the States of Viet Nam had continuousy exercised their sovereignty at least over the Paracel Islands by frequently sending the Flotillas of Hoàng Sa and Bắc Hải to the archipelago, which would stay there for several months every year for surveying and exploiting resources in a systematic manner. Personnel from these flotillas collected goods from wrecked ships, built temples, planted trees to symbolize the State’s sovereignty, collected taxes, and provided assistance to foreign ships in danger. These activities by the Vietnamese States were totally free from any opposition or disputes from other countries, including China, and contained both the corpus and animus elements of an actual possession.
Viet Nam uses official documents from the 17th century to support these arguments. These include Đại Nam thực lục tiền biên (1600–1775) (大南實錄前編, The Early Chapter of The Chronicles of Đại Nam), Toản tập Thiên Nam tứ chí lộ đồ thư (1630–1653) (纂集天南四至路图書, The Collection of the South’s Road Map), Phủ biên tạp lục (1776) (撫邊雜錄, Miscellany on the Pacification at the Frontier), Đại Nam thực lục chính biên (1848) (大南實錄正編, The Main Chapter of The Chronicles of Đại Nam), Đại Nam nhất thống chí–the combinatorial record for geography and history of Đại Nam (1865–1882) (大南ー統誌, The Record of The Unified Đại Nam), Hoàng Việt dư địa chí (1833) (皇越輿地誌, Geography of The Viet Empire), Việt sử thông giám cương mục khảo lược (1876) (越史通鑑綱目考略, Outline of The Chronicles of The Viet History), official documents of the Nguyễn Dynasty on petitions and imperial decrees, and many maps and documents made by other countries at that time2.
Jaseniew Vladimir and Stephanow Evginii, in their 1982 book entitled “The Chinese Frontiers: From Traditional Expansionism to Present Hegemonism”, listed the activities by the Vietnamese States in continuously exercising their sovereignty over the Paracel and Spratly Islands, and emphasized that “feudal States of Viet Nam had for long annexed archipelagos such as the Paracels and the Spratlys into their State’s territory”3.
France, after imposing its protectorate over Viet Nam, represented Viet Nam in exercising and maintaining Viet Nam’s sovereignty over the archipelagos.
In 1899, then Governor-General of Indochina Paul Doumer submitted a proposal to the Government of France to build a lighthouse in the Paracel Islands. Financial difficulty, however, prevented this plan from being realized.
On March 8, 1925, the Governor-General of Indochina affirmed that the Paracel Islands were part of French territory4. Surveillance and research trips thus had been organized in the Paracel Islands since 1925 and in the Spratly Islands since 19275.
In 1930, the French authorities in Indochina sent a mission group to set up a flag pole in the Spratly Islands. Since then until 1933, French naval units established garrison in the main islands of the archipelago, including Spratly (Trường Sa) (April 13, 1930), Amboyna Cay (An Bang) (April 7, 1933), Itu Aba (Ba Bình) (April 10, 1933), the Two-Island Group including Southwest and Northeast Cays (Groupe des Deux Iles, Song Tử) (April 10, 1933), Loaita (Loai Ta) (April 11, 1933), and Thitu (Thị Tứ) (April 12, 1933), together with small islets/cays surrounding these islands. These occupation activities were proclaimed in the July 26, 1933 Official Gazette of the French Republic and the September 25, 1933 Official Gazette of Indochina, and did not meet any opposition from China, the Philippines, the Netherlands (which occupied Brunei at that time), or the United States of America. The United Kingdom of Great Britain and Northern Ireland required explanation for these activities and was satisfied with the response from France6.
On December 2, 1933, Governor of Cochinchina (Nam Kỳ) J. Krautheimer incorporated the Spratly Islands into the Province of Bà Rịa.
On March 30, 1938, Emperor Bảo Đại issued his imperial edict to incorporate the Paracel Islands into the Province of Thừa Thiên. On June 15, 1938, the Governor-General of Indochina Jules Brévié issued a decree on establishing an administrative unit in the Paracel Islands. The French authorities then effectively occupied the whole archipelago with a permanent guard unit. In 1938, a sovereignty stele was erected with the inscription of these words: “The French Republic – The Kingdom of An Nam – The Paracel Islands, 1816 – Pattle Island – 1938”. A lighthouse, a meteorological station, and a radio station were also set up on Pattle Island5.
Japan occupied the Spratly Islands in 1939, re-named the archipelago as Shinnan Shoto (新南諸島, the New Southern Islands), and put under the jurisdiction of Kaohsiung (Taiwan). France subsequently sent a diplomatic note to oppose this military action by Japan and re-affirmed that the Spratly Islands were part of An Nam’s territory without any opposition from China7.
Immediately after Japan surrendered in 1945, the French authorities restored their presence in the Paracel and Spratly Islands. In June 1946, a subunit of the French armed forces landed to re-occupy the Paracel Islands. In October 1946, the French battleship Chevreud arrived in the Spratly Islands and installed a sovereignty stele on Itu Aba Island8. When the Republic of China sent its troops to occupy Itu Aba Island in late 1946, France also opposed the action and demanded China’s withdrawal from the archipelago.
In summary, as the protecting power representing Viet Nam’s interests, France did not abandon but maintained the sovereignty of Viet Nam over the Paracel Islands without any interruption. In the Spratly Islands, France considered the archipelago as a terra nullius and conducted its effective occupation with the knowledge of other States and without any noticeable opposition from them.
Viet Nam’s sovereignty over the two archipelagos has been continuously exercised and maintained since France left Indochina.
With the Hạ Long Bay Treaty of 1949, France transferred the sovereignty of Cochinchina, which included the Spratlys, to Viet Nam. On October 14, 1950 the government of France officially handed over the control of the Paracels to Viet Nam’s Bảo Đại Administration.
On September 7, 1951, during the seventh session of the San Francisco Conference on the Treaty of Peace with Japan, Prime Minister and Foreign Minister Trần Văn Hữu of the State of Viet Nam officially affirmed Viet Nam’s sovereignty over the Paracel and Spratly Islands. His statement did not meet with any objection or reservation of opinion from any of the 51 States attending the Conference. The Soviet Union requested an amendment that 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. This amendment was rejected by 46 of the countries present, only Poland and Czechoslovakia supported the Soviet request. Neither China nor Taiwan attended the Conference7. China, however, reserved their demand over the two archipelagos in the statement of August 15, 1951 by Foreign Minister Zhou Enlai.
After the partition of Viet Nam by the 1954 Geneva Accords, administration of the Paracel and Spratly Islands was placed under the Republic of Viet Nam (RVN, South Viet Nam). Immediately after the last French troops’ withdrawal on August 22, 1956, the Republic of Viet Nam promptly established its control over the Paracel and Spratly Islands, and faced challenges from China, which disputed the archipelagos9.
The RVN regime, as a successor to the French authorities for legal titles, rights, and demands in the Paracel and Spratly Islands, had continuously exercised its administration, surveillance, exploitation, and defence over the two archipelagos through a series of actions such as erecting flag pole and sovereignty stele in the Spratly Islands (August 1956), incorporating the Paracel Islands into the Province of Quảng Nam (July 1961), affirming sovereignty over the two archipelagos by a statement of the Ministry of Foreign Affairs (July 15, 1971), incorporating the Spratly Islands to the Province of Phước Tuy (September 1973), granting license for guano collection, and detaining China’s troops who were disguised as fishermen in an attempt to occupy the western group of the Paracel Islands (February 1959).
China’s complete occupation of the Paracel Islands by military forces in January 1974 was strongly opposed by RVN, which took every opportunities to affirm its sovereignty, including sending letter to demand an intervention from the President of the United Nations General Assembly and the Secretary-General of the United Nations, issuing statements to re-affirm sovereignty at the meeting in March 1974 of the Economic Commission for the Far East (precursor of the Economic and Social Commission for Asia and the Pacific) and the Third United Nations Conference on the Law of the Sea (July 1974), and proclaiming the White Paper on the Paracel and Spratly Islands (February 1975).
The Socialist Republic of Viet Nam is the successor of the two prior States and has had all legal titles over the Paracel and Spratly Islands since July 2, 1976.
As part of its exercise of sovereignty, in December 1982 Viet Nam established Hoàng Sa District (huyện) under the Province of Quảng Nam–Đà Nẵng for the Paracel Islands, and Trường Sa District under the Province of Đồng Nai for the Spratly Islands. Hoàng Sa and Trường Sa Districts are currently under the jurisdiction of the City of Đà Nẵng and the Province of Khánh Hoà, respectively. Viet Nam has also maintained permanent troops in the Spratly Islands.
In addition, Vietnamese top officials have paid several visits and joined surveillance trips to affirm Viet Nam’s sovereignty in the Spratly Islands. These include a series of visits in May 1988 by Minister of Defence Lê Đức Anh, Vice-Chairman of the State Council Nguyễn Quyết, and Chief of the Armed Forces’ General Staff Đoàn Khuê. More recent visits of top officials include those by Member of the Politburo of the Communist Party of Viet Nam (CPVN) Phạm Thế Duyệt (April 1998), and former Secretary-General of CPVN Lê Khả Phiêu (November 2011).
Although the Paracel Islands have been completely occupied by China’s troops since 1974, Viet Nam maintains all its legal titles over the archipelago. The most recent assertion of sovereignty by Viet Nam is a statement by Prime Minister Nguyễn Tấn Dũng in a televised testimony at the National Assembly on November 25, 2011 in which he said that Viet Nam has had sovereignty over the Paracel and Spratly Islands at least since the 17th century, and that Viet Nam seeks to resolve the sovereignty dispute through peaceful means according to international law.
2. Arguments from China and Taiwan
As China and Taiwan share the same arguments about the Paracel and Spratly Islands, they can be presented together as follows.
China was the first country to discover and occupy the Paracel and Spratly Islands as terra nullius
China asserted that it was the first country to find the archipelagos, and this discovery was made as early as the reign of Emperor Wǔ of the Hàn Dynasty (2nd century BCE)10. This argument, however, is not backed up by official historical documents. On this issue, Nguyễn Hồng Thao commented that “most of these documents are travel accounts, monographs, and navigation books demonstrating knowledge of ancient people about territories belonging to not only China but also other countries”9. Moreover, in these documents, the territories which China now claims to be the Paracels and Spratlys are named inconsistently, thus there are no convincing arguments that those territories are really the Paracels and Spratlys5.
Moreover, the aforementioned assertion from China contradicts the encyclopedia Gǔjīn Túshū Jichéng (古今圖書集成, Complete Atlas on the Past and Present) completed by the Qing Dynasty in 1706. None of the maps in Zhífāng Diăn (職方典, Dictionary of Administrative Units) of this encyclopedia, including Zhífāng Zŏngbùtú (職方總部圖, General Map of the Administrative Units, Number 1), Guăngdōng Jiāngyùtú (廣東疆域圖, Territorial Map of Guăngdōng, Number 157), and Qióngzhōufǔ Jiāngyùtú (琼州府疆域圖, Territorial Map of Qiongzhou Prefecture, Numer 167), indicate any archipelagos farther to the south than Hainan Island. The islands depicted in Guăngdōng Tōngzhì (廣東通志, Annals of Guăngdōng), made during the reign of Emperor Jiājìng of the Ming Dynasty (1522–1567), also do not go beyond Qiongzhou (i.e. Hainan)11.
The finding of ancient money and goods dated back to the Wáng Măng (王莽) Era (9–23 CE) is also used as archaeological evidence by China to support the early presence of its fishermen in the archipelagos. However, even if these pieces of evidence are valid, Chinese fishermen’s early presence was merely private/individual activities and thus cannot constitute an effective occupation by a State as required by international law.
China also claims sovereignty over the archipelagos by asserting the following events:
- The Sòng Dynasty (960–1127) sent its military patrols to the Paracel Islands’ area. This assertion is based on Wǔjīng Zŏngyào (武经总要, Military General Records) with a prologue written by Emperor Rénzōng5. However, according to Monique Chemillier-Gendreau, this record merely indicates that there were geographical surveillance trips by the Chinese that went as far as the Indian Ocean, and that China knew of the Paracel Islands. The document, however, does not demonstrate any possession.
- In the 13th century, emperors of the Yuán Dynasty ordered the astronomer Guō Shŏujìng (郭守敬) to conduct astronomical observations in many areas, including the Paracel Islands. However, Guō’s observations performed both inside and outside of China, was only astronomical research activities and thus could not legitimize any sovereignty status over the the territories from which the observations were made.
- Wu Sheng (吳升), Guangdong navy’s rear-admiral, commanded a patrol to the Paracel Islands in 1710–1712. However, according to Monique Chemiller-Gendreau, this was in fact a patrol around Hainan Island and did not go as far as the Paracels.
- The local government of Guangdong opposed a German ship conducting research in the Spratly Islands in 1883. This opposition, however, was only a diplomatic action and did not have any legal status as China’s sovereignty had not been established9.
Therefore, historical evidence used by China to support its claim is insufficient and weak according to international law. These pieces of evidence do not demonstrate any occupation, effective administration, or sovereignty12. As far as the effective occupation of the Paracel and Spratly Islands as terra nullius without protests from other States are concerned, Viet Nam’s arguments are stronger than those of China13.
China’s arguments regarding the period from early 20th century to 1945
It was not until the beginning of the 20th century that China showed any real efforts in occupying the Paracel Islands. In 1909, Admiral Lǐ Zhǔn (李准) commanded a small-scale landing (over a period of 24 hours) in the Paracel Islands. His troops raised their flag and fired their guns to mark China’s sovereignty5 (which raises the question of why Lǐ Zhǔn’s fleet acted as if this was the first time the islands were discovered despite China’s claim to have possessed them long before?)
In 1921, the self-proclaimed Guăngzhou Military Government annexed the administration of the Paracel Islands to Yái (崖) District. This action did not meet any response as the Guăngzhou Military Government was not recognized by any countries in the world.
In 1937, Japan occupied the islands offshore of Indochina despite the opposition from the French authorities, renamed them to “Shinnan Shoto”, and put them under the jurisdiction of Kaohsiung (Taiwan), which China had ceded to Japan in the Treaty of Shimonoseki of 1895. Japan maintained its occupation in the South China Sea’s archipelagos throughout World War II.
In summary, with a limited effort in early 20th century to demonstrate its sovereignty in the Paracel Islands, China neither actually and continuously occupied nor effectively established administration over the archipelago. At the same time, China had absolutely neither influence nor interest in the Spratly Islands and did not protest when Japan claimed and occupied them. In contrast, France was the only country to protest. An irrefutable evidence of China not considering the Spratlys to be its territorry was China’s diplomatic note to France in September 1932 claiming that the Paracels “form the southernmost part of Chinese territory” 5.
China’s arguments regarding the period after 1945
After Japan’s surrender in 1945, it withdrew troops from mainland and all archipelagos of Indochina. France promptly restored its presence in the Paracel Islands in June 1946. In July 1947, the Republic of China sent its troops to Woody Island in the Paracels. In response, France opposed this illegal occupation by China and sent a military unit to the Paracel Islands to set up a garrison and built a meteorological station which would be in operation for the next 26 years until the People’s Republic of China used military force to occupy the archipelago in 1974.
At the end of 1946, the Republic of China sent its troops to occupy Itu Aba Island in the Spratlys after France had erected a sovereignty stele. The Chinese Civil War’s conclusion and the proclamation of the People’s Republic of China in October 1949 forced the Republic of China’s troops to leave Woody Island in the Paracels and Itu Aba Island in the Spratlys while the French garrisons were maintained.
In April 1956, French forces were withdrawn from Indochina, and in the Paracels were replaced by the Republic of Viet Nam’s troops (South Viet Nam). At the same time, the People’s Republic of China’s troops secretly landed and occupied Amphitrite Group in the eastern part of the Paracel Islands5. On September 4, 1958, China issued a statement on its twelve-nautical-mile territorial waters, including around both the Paracel and the Spratly Islands. On January 19, 1974, China used its military forces to occupy completely the Paracel Islands. Until then, the Spratly Islands “were completely out of China’s influence, let alone China’s intention to control them”7. In February 1988, China sent troops to some islands in the Spratlys, and a month later, seized six islands from Viet Nam5. All of these events make China a unique claimant in the Spratly Islands for its exclusive claim over the whole archipelago and its absolute lack of control in reality until 19887.
China then established its 33rd province including Hainan Island, the Paracels, and the Spratlys in April 1988, occupied one more small island in the Spratly Islands in May 19895, and seized Mischief Reef of the Philippines in February 1995.
China’s main approach to seize control over the islands is to use military force, an approach which has been condemned by international law since early 20th century. The Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, adopted on October 24, 1970, also states explicitly that “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. The territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force. No territorial acquisition resulting from the threat or use of force shall be recognized as legal”. The use of military force is therefore against international law and cannot legitimize any legal status for China in the Paracel and Spratly Islands.
China’s use of statements by the Democratic Republic of Viet Nam
China maintains that Viet Nam recognized China’s sovereignty over the Paracel and Spratly Islands during the Viet Nam War by statements of the Democratic Republic of Viet Nam (North Viet Nam) including:
- A verbal expression by Deputy Foreign Minister Ung Văn Khiêm on June 15, 1956 to a standing member of the Embassy of China in Ha Noi that these archipelagos are part of China’s territory in terms of history. However, China fails to provide the meeting’s minutes that contains this expression by Deputy Foreign Minister Khiêm14. It should also be noted that, according to international law, deputy foreign ministers do not by default have the authority to represent a State in such matters.
- A diplomatic note by Prime Minister Phạm Văn Đồng on September 14, 1958 in which China’s claim of twelve-nautical-mile territorial sea was said to be approved without any reservation of opinion regarding the Paracel and Spratly Islands.
- On May 9, 1965, in response to the the escalation of the Viet Nam War and the establishment of tactical zones in the South China Sea by the United States, the Democratic Republic of Viet Nam’s newspaper Nhân Dân (The People) stated that the Paracel Islands were under the sovereignty of China. It should be noted that, according to international law, newspapers are not considered representatives of a State.
Whether these statements has legal implications for the Socialist Republic of Viet Nam’s sovereignty over the Paracel and Spratly Islands will require further studies in international law. However, the author would like to offer a perspective on these statements as below.
During the Viet Nam War (1954–1975), there were two States co-existing in Viet Nam, namely, the Democratic Republic of Viet Nam (DRVN) in the North, and the Republic of Viet Nam (RVN) in the South. The co-existence of these two States is agreed upon by many leading international laywers, such as James Crawford, Robert Jennings, Nguyễn Quốc Định, Jules Basdevant, Paul Reuter, Louis Henkin, and Grigory Tunkin14.
Acccording to the DRVN and the RVN’s understanding of the 1954 Geneva Accords, and to the de facto administration, it was the RVN, and not the DRVN, which was the successor to the Vietnamese titles over the Paracel and Spratly Islands. As mentioned above, the RVN had continuously controlled, exercised administration, and affirmed sovereignty until China’s occupation of the Paracel Islands by force in 1974, and until the Provisional Revolutionary Government of the Republic of South Viet Nam’s takeover of the Spratly Islands in 1975.
First, given that it was the RVN, and not the DRVN, which was the successor to the Vietnamese titles over the Paracel and Spratly Islands, the DRVN did not have a duty to defend these titles (therefore its silence cannot be interpreted acquiescence of these titles) and, furthermore, it was not in dispute or negotiation with any other State over these archipelagos (statement by the DRVN cannot be said to be made in the context of a dispute or negotiation between it and another State).
Second, the 1958 diplomatic note of the DRVN’s Prime Minister Phạm Văn Đồng and other DRVN’s statements on the issue did not affect RVN’s titles over the archipelagos. Any legal obligation that might arise from the DRVN’s statements could only apply to the DRVN, not to the RVN.
Third, let us considerwhether the DRVN’s statements gave rise to any binding obligations for itself? The statements made by DRVN on the issue are unilateral ones. According to international law, to determine whether a unilateral statement might give rise to binding obligations, three main conditions must be considered, namely,
(1) the context in which the statement was made;
(2) whether the unilateral statement is explicit, and whether the party making the statement explicitly expresses the intention that it wishes to be bound by its own statement; and
(3) whether there has been detrimental reliance for the other party, i.e., damage or loss caused by that party’s reliance on the unilateral statement.
In addition, judgements by the International Court of Justice require that the unilateral statements are made continuously over a prolonged period of time for it to give rise to binding obligations15.
It is not difficult to see that all of the DRVN’s statements on the issue lack most of these prerequisite conditions, and therefore did not give rise to any binding obligations for the DRVN. First, these statements were not made in the context of the DRVN and China contesting the Paracels and Spratlys with each other. Second, the only authoritative statement from the DRVN – the diplomatic note by Prime Minister Phạm Văn Đồng, did not say anything explicit about the Paracels or Spratlys. Third, China has not taken any actions that could be said to be detrimental reliance on the DRVN’s statements.
In summary, as the successor State to the DRVN and the RVN (and subsequently the Provisional Revolutionary Government of the Republic of South Viet Nam) since 1976, the Socialist Republic of Viet Nam (SRVN) succeeded to both the sovereignty of the Paracel and Spratly Islands from the RVN and the unilateral, non-binding statements from the DRVN. Since the latter is non-binding, the SRVN is free to choose to uphold the former. The re-unified Vietnamese State, therefore, has full legal basis to assert its sovereignty over the Paracel and Spratly Islands.
3. Arguments from other countries
The Philippines claims over about 60 islands, reefs, and submerged banks in the Spratly Islands16. The first assertion was made in 1947 by Tomás Cloma, a Philippine citizen, when he claimed to have discovered a group of islands and reefs 300 nautical miles to the west of Palawan Island.
On May 17, 1951, the President of the Philippines claimed that islands in the Spratlys should belong to the closest territory, which is the Philippines9. This claim was opposed by the other countries.
It was not until March 1956 that Tomás Cloma resumed his “work to discover” these islands. He sent a group of 40 sailors to land on many islands in the Spratlys to mark their possession. The flag of the Philippines was raised on some islands including Itu Aba17. On May 11, 1956, they proclaimed Kalayaan (Freedom-land) as the new official name of the islands and Tomás Cloma as the President of the Supreme Council of the State of Kalayaan7. This proclamation was opposed by all relevant countries10.
Tomás Cloma sent a letter dated May 15, 1956 to the Republic of the Philippines’ Minister of Foreign Affairs to announce that he and his group had occupied a 64,976-square-mile area to the west of Palawan Island, that this area was outside of Philippine territorial waters and was not subject to the jurisdiction of any countries, and that this area had been found and effectively occupied as a terra nullius. He also included with the letter a map of his claimed area. Although the names of these islands were completely changed, Cloma’s map indicates that the Kalayaan area includes most of islands in the Spratlys8.
The Philippines’ Minister of Foreign Affairs subsequently declared in a press conference on May 19, 1956 that the islands in the Spratlys including Itu Aba and Spratly are subject to the Philippines’ sovereignty as they are closest to the Philippines. This declaration met with objections from Sai Gon, Beijing, and Taiwan. When Taiwan showed its intention of deploying troops to the Spratly Islands, Manila promptly sent a notice to Taiwan and South Viet Nam and said that it had not officially claimed sovereignty over the area.
On July 6, 1956, Tomás Cloma sent a letter to the Philippines’ government to ask that Kalayaan become a protectorate of the Philippines. In his response, the Philippines’ Minister of Foreign Affairs stated that any island in the area that is not within the group of seven islands referred to as “the Spratly Islands” by international community can be considered as terra nullius, and thus can be freely exploited and inhabited by citizens of the Philippines or any other countries. To retaliate against the activities by Tomás Comas, South Viet Nam sent a patrol ship to the Spratly Islands in August 1956.
The first clash between Taiwan’s navy and Tomás Cloma’s group occurred on October 1, 1956 in North Danger Shoal. Tomás Cloma’s group ended up having all their weapons stripped while the Philippines’ government did not intervene.
During 1970–1971, President Ferdinand Marcos ordered the Philippines’ navy to occupy some islands in the Spratlys including Thitu, Nanshan, and South Rock. The Philippines also organized patrols in many small islands and reefs in the northeast of the archipelago7. After the Philippines attempted once more but failed to occupy Itu Aba Island in 1971, it continued to object to Taiwan’s occupation of the island with three arguments, namely, (1) the Philippines’ sovereignty over the islands based on Tomás Cloma’s discovery of terra nullius, (2) de facto occupation without notice by China of many islands under the jurisdiction of the Allies, and (3) the Philippines archipelagic waters containing the Spratlys10. The Philippines also expanded its occupation to 1,000 troops and built an airport on Thitu Island. Tomás Cloma transferred the “sovereignty” of the islands to the Philippines’ government in 1974. By that time, the Philippines had acquired control over four islands in the Spratlys.
In 1978, the Philippines deployed troops to seven islands in the Spratlys. The President of the Philippines then signed Decree 159612 on June 11, 1978 to annex these seven islands to the Philippines’ territory. The decree also states that “these areas do not legally belong to any state or nation but, by reason of history, indispensable need, and effective occupation and control established in accordance with the international law, such areas must now deemed to belong and subject to the sovereignty of the Philippines”, and that a 200-nautical-mile economic exclusive zone was set for these islands10.
In a press conference on September 14, 1979, the President of the Philippines stated clearly that his country would maintain its claim over the seven islands that it occupied but not all of the Spratly Islands. The Philippines’ President also re-affirmed that these seven islands had never been occupied, known of, inhabited, or even marked in any maps before World War II, and they had thus been terra nullius until the Philippine’s occupation.
On March 10, 2009, the President of the Philippines promulgated Republic Act 9522 to define the archipelagic baseline of the Philippines, in which most of the Spratly Islands was included in the Philippines’ regime of islands. China quickly objected while Vietnam re-asserted its claims to the Spratlys but did not mention the Act specifically.
Arguments from the Philippines, in general, do not have a solid basis. The Philippines maintains that the islands it claimed were terra nullius. Even if we ignore those events in the Spratlys in previous centuries, the Spratly Islands were effectively occupied since 1930 by France (French troops had been on Thitu Island since April 1933) and transferred to Viet Nam without objection from any countries including the Philippines when France left Indochina. Also, the claim that these islands should belong to the Philippines on the basis of proximity is not supported by international law. Moreover, the Philippines’ occupation and claim in the Spratly Islands have been opposed by relevant countries from the beginning. Therefore, the involvement of the Philippines in these islands cannot constitute an effective occupation without disputes as required by international law.
In 1978, Malaysia made its first claims for sovereignty over Amboyna Cay, Mariveles Reef, and Commodore Reef on the basis that these features lie on its continental shelf. The 1979 map of Malaysia depicted some islands in the Spratlys as Malaysia’s territory.
Malaysia started its first military occupation in June 1983 by taking control of Swallow Reef, which is within its claimed area. In September 1983, Malaysia officially declared its intention to occupy James Shoal, Swallow Reef, Ardasier Reef, and Mariveles Reef, and asserted that these islands/reefs lie within Malaysia’s “marine economic zone”7. In December 1986, Malaysia’s troops occupied Mariveles and Ardasier Reefs. In June 1999, Malaysia expanded its occupation to a total of seven islands/reefs/shoals by taking control over Erica Reef and Investigator Shoal.
In general, Malaysia cites the international law’s regulations of continental shelf to support its claim in the Spratly Islands. However, Article 76 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) defines clearly that: “The continental shelf of a coastal State comprises of the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental shelf does not extend up to that distance”. This definition does not govern the above water islands/reefs/cays on the continental shelf and thus cannot provide legal ground for Malaysia’s claims, which already lack historical grounds.
Brunei only claims Louisa Reef based on the argument that this reef is within its exclusive economic zone.
Article 56 of the 1982 UNCLOS, however, only acknowledges that a coastal State has (1) “sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents, and winds”, and (2) jurisdiction to establish and use artificial islands, installations and structures for marine scientific research, and protection and preservation of marine environment. The use of UNCLOS to claim sovereignty over islands within the exclusive economic zone is an aberrant interpretation of the Convention. Therefore, the argument from Brunei, similar to that of Malaysia, is unconvincing.
The legal question in this case is whether Louisa Reef can be considered as an island. This question is critical because a State can only claim and acquire sovereignty over islands (defined by article 121 of UNCLOS as a “naturally formed area of land, surrounded by water, which is above water at high tide”). If Louisa Reef is submerged or is a low tide elevation then neither Brunei nor any other countries can claim sovereignty over it18,19, and Brunei can only claim certain restricted rights as prescribed by UNCLOS. And if this is the case, we shall have to resolve the question of whether Louisa Reef lies within Brunei’s exclusive economic zone or that of Viet Nam or Malaysia.
In the light of international law, the above comparative analysis of perspectives from different claimants of the Paracel and Spratly Islands reveals that the most logical and best-supported arguments are those of Viet Nam. In reality, however, the prolonged and complicated nature of disputes in area, as well as the involved parties’ intention, make dispute resolution through legal means a very difficult approach. Instead, an integration of legal, historical, political, and economic solutions is needed to resolve the issue. And any resolution for the South China Sea’s dispute would require efforts and good will of the involved parties, particularly China, which has been objecting to any proposal by Viet Nam to bring the Paracel and Spratly Islands’ issue to the International Court of Justice.
Nevertheless, the legal perspective of the issue is still of vital importance.
The author wishes to thank Drs. Nguyễn Đức Hùng, and Lê Vĩnh Trương for their comments and discussion.
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