On May 2, by deploying its oil rig within the exclusive economic zone of Vietnam, China blatantly violated the agreements with Vietnam and ASEAN in resolving disputes in the East Sea by peaceful means on the basis of international law.
In the current situation, each country's claim of sovereignty over the Paracels, the Spratlys and the East Sea must be based on convincing historical evidence and international law. They must take international law as the supreme standard to resolve the dispute over sovereignty.
Compliance with international law is also the civilized behavior and responsibilities that all nations, especially China, a member of the UN Security Council, must respect.
The series, "The sovereignty of Hoang Sa and Truong Sa as seen under international law", covers this content.
Vietnam - the first state that established sovereignty over Hoang Sa and Truong Sa
A claim for unclaimed territories must include two elements: intention and will as a sovereign state and exercising that intention and will in fact. Only when there are both factors will the acquisition of sovereignty be accepted under international law.
Accordingly, the findings together with the public assertion of sovereignty only generate a preliminary nominal. To complete this nominal, to make it full and sure, the actual possession, together with the clear intention of taking over the territory, are a must. Thus, there are two elements: one is the physical element or the discovery and then the element of intention or the public assertion of sovereignty, and after all, the enhancement of material elements.
In the material elements, it is necessary to distinguish the difference between the mere knowing of the territory and the actual possession.
A territory, especially an island or archipelago, can be known for a long time by sailors, fishermen or geographers because they want to expand the study to all areas, regardless of the sovereignty. Then, this territory is not the object of the "discovery" of legal effect. The discovery alone never provides grounds for a claim to unclaimed land. That's just mere knowledge of the territory.
The main content of the principles of true possession in international law include:
- The establishment of territorial sovereignty must be conducted by the State;
- The appropriation must be conducted peacefully on a derelict territory or on a territory abandoned by a country that has owned it before. The use of force to invade is an unlawful act;
- The occupying state must enforce its sovereignty with only the necessary and minimum steps appropriate to the natural conditions and population on that territory;
- The exercise of the sovereignty must be continuous and peaceful.
Based on this legal principle (as of 1884), compared with the process of setting and enforcing sovereignty over the Paracels and Spratlys dispute announced by the parties involved in the dispute, there will definitely be an objective and scientific review of the right of acquisition of territory for the two islands.
First of all, lets consider the evidence of China:
Facing historical and legal evidence provided by Vietnam to prove her sovereignty over both Hoang Sa and Truong Sa archipelagoes, several Chinese scholars and officials have quoted ancient documents in an attempt to prove their country’s discovery of the archipelagoes and the exercise of sovereignty there.
They have cited evidence in the geography books to prove its sovereignty over the Paracels and Spratlys. Research shows that it is true that these islands were recorded and described in these books but these books only noted the understanding of contemporary Chinese about geography, history, customs ... in the countries of Southeast Asia and South Asia and the maritime routes from China to foreign countries.
Therefore, these documents would be considered as documents proving general understanding of locations rather than in the legal sense to prove that the two archipelagos of Paracels and Spratlys belong to China.
The book “Nanzhou Yiwu Zhi” (220-265) is a maritime guidebook in the East Sea, but it is inaccurate, so that book cannot be the ground to verify the islands in dispute today.
The book “Stories about Funan” by Kang Tai which was also written during this period wrote about some atolls, and China confirmed that the book was written about the Spratly Islands. However, this excerpt is very vague and imprecise, so it cannot be the grounds for such assertions.
They also cited books such as “ Hou Han Shu ”(Book of Later Han) and “Yi Wu Zhi” (Records of strange things) from the Han era and “Zhu Fan Zhi ” (Notes on foreign countries) (the 13th century), “Hai Lu” (Oceanic records) by Yang Ping-nan (1820-1842), Nanzhou Yi wu zhi (Exotic things of the Southern region), Daoyi Zhilue (Overview of barbarous island countries), Guangdong Tongzhi (General Records of Guangdong province) to prove that China discovered and exercised its sovereignty in Hoang Sa and Truong Sa archipelagoes from an early date.
But in fact, the excerpts extracted from China’s historical documents dating back before the 13th century and cited by Chinese scholars do not mention the name of any particular island, but only the Nanhai. In addition, in those quoted pieces, the two archipelagoes were described only as physical landmarks observed by navigators during their voyages crossing the East Sea. Only from the 13th century, the quoted pieces mentioned the name of some islands, but there were no such names as ‘Xi Sha’ and ‘Nan Sha’ (the names China gives to Hoang Sa and Truong Sa in Vietnam).
Some later historical sources described inspection, expeditionary and exploration trips China conducted in the region, including Hoang Sa and Truong Sa. In particular, China argued that under the Ming dynasty in the 15th century, explorer Zhenghe made seven journeys crossing the East Sea and after that he put the name of the two archipelagoes on the map.
However, those trips were not intended to claim land. They in fact were meant to explore the sea to get a deeper understanding of its being, seek trade partners and show off force to regional countries. China cannot name any historical book that testifies to its sovereignty over the two archipelagoes. Even in its historical documents in the 19th century, when Vietnam’s Nguyen Kings declared their ownership and exercise of sovereignty over Hoang Sa and Truong Sa, the two archipelagoes were only described as things seen accidently by Chinese ships on their journey passing the East Sea.
China’s ancient documents, such as Qiongzhou fu zhi (Geography of Qiongzhou), Guangdong sheng zhi (1731-Geography of Guangdong), Hoang Chao Yitong Yudi Zongtu (Chinese map of the unified empire) in 1894, all described and stated clearly that China’s southernmost point was Hainan. In the Zhongguo Sihixue Jiao Keshu (Chinese Textbook of Geography), published in 1906, page 241 reads “the southernmost point of China is the Jie Zhou coast, Qiongzhou Island, at 18 degrees 13 minutes north latitude”.
More than that, there are documents that implicitly acknowledge the link between these archipelagoes and Vietnam, or even recognise these archipelagoes as the defence line of Vietnam. For example, Yang Ping Nan’s book “Hai Lu” (1820-1842) wrote “the external route is connected with the inner route by Van Ly Truong Sa which lies in the middle of the sea. The archipelago stretches tens of thousands of “dam” in length. It serves as a shield to defend the outer part of Annam.”
China has many times cited the France-Qing agreement signed in 1887 to confirm that Hoang Sa and Truong Sa belonged to them. However, the agreement did not regulate the demarcation of islands off the coast of Vietnam and China, but mandated the boundary between Vietnam’s northern region and China.
Recently, China has quoted a number of speeches and documents of Vietnam, in particular Prime Minister Pham Van Dong’s diplomatic letter dated September 14, 1958 addressed to the then Premier of China Zhou En Lai, and argued that Vietnam had acknowledged China’s sovereignty over Hoang Sa archipelago.
In fact, the late Prime Minister Pham Van Dong’s diplomatic letter did not mention territorial and sovereignty issues relating to Hoang Sa and Truong Sa archipelagoes. It only acknowledged and approved China’s expansion of its territorial sea to 12 nautical miles and at the same time instructed Vietnamese agencies to respect the 12-nautical mile limit declared by China.
In addition, China knows only too well that the issue of defining borders and territory between the two nations could not be handled via a diplomatic letter. It must go through official negotiations by the two States and an agreement reached on the issue needs to be signed by representatives of the two States.
Compliance with international law is also the civilized behavior and responsibilities that all nations, especially China, a member of the UN Security Council, must respect.
The series, "The sovereignty of Hoang Sa and Truong Sa as seen under international law", covers this content.
Vietnam - the first state that established sovereignty over Hoang Sa and Truong Sa
A claim for unclaimed territories must include two elements: intention and will as a sovereign state and exercising that intention and will in fact. Only when there are both factors will the acquisition of sovereignty be accepted under international law.
Accordingly, the findings together with the public assertion of sovereignty only generate a preliminary nominal. To complete this nominal, to make it full and sure, the actual possession, together with the clear intention of taking over the territory, are a must. Thus, there are two elements: one is the physical element or the discovery and then the element of intention or the public assertion of sovereignty, and after all, the enhancement of material elements.
In the material elements, it is necessary to distinguish the difference between the mere knowing of the territory and the actual possession.
A territory, especially an island or archipelago, can be known for a long time by sailors, fishermen or geographers because they want to expand the study to all areas, regardless of the sovereignty. Then, this territory is not the object of the "discovery" of legal effect. The discovery alone never provides grounds for a claim to unclaimed land. That's just mere knowledge of the territory.
The main content of the principles of true possession in international law include:
- The establishment of territorial sovereignty must be conducted by the State;
- The appropriation must be conducted peacefully on a derelict territory or on a territory abandoned by a country that has owned it before. The use of force to invade is an unlawful act;
- The occupying state must enforce its sovereignty with only the necessary and minimum steps appropriate to the natural conditions and population on that territory;
- The exercise of the sovereignty must be continuous and peaceful.
Based on this legal principle (as of 1884), compared with the process of setting and enforcing sovereignty over the Paracels and Spratlys dispute announced by the parties involved in the dispute, there will definitely be an objective and scientific review of the right of acquisition of territory for the two islands.
First of all, lets consider the evidence of China:
Facing historical and legal evidence provided by Vietnam to prove her sovereignty over both Hoang Sa and Truong Sa archipelagoes, several Chinese scholars and officials have quoted ancient documents in an attempt to prove their country’s discovery of the archipelagoes and the exercise of sovereignty there.
They have cited evidence in the geography books to prove its sovereignty over the Paracels and Spratlys. Research shows that it is true that these islands were recorded and described in these books but these books only noted the understanding of contemporary Chinese about geography, history, customs ... in the countries of Southeast Asia and South Asia and the maritime routes from China to foreign countries.
Therefore, these documents would be considered as documents proving general understanding of locations rather than in the legal sense to prove that the two archipelagos of Paracels and Spratlys belong to China.
The book “Nanzhou Yiwu Zhi” (220-265) is a maritime guidebook in the East Sea, but it is inaccurate, so that book cannot be the ground to verify the islands in dispute today.
The book “Stories about Funan” by Kang Tai which was also written during this period wrote about some atolls, and China confirmed that the book was written about the Spratly Islands. However, this excerpt is very vague and imprecise, so it cannot be the grounds for such assertions.
They also cited books such as “ Hou Han Shu ”(Book of Later Han) and “Yi Wu Zhi” (Records of strange things) from the Han era and “Zhu Fan Zhi ” (Notes on foreign countries) (the 13th century), “Hai Lu” (Oceanic records) by Yang Ping-nan (1820-1842), Nanzhou Yi wu zhi (Exotic things of the Southern region), Daoyi Zhilue (Overview of barbarous island countries), Guangdong Tongzhi (General Records of Guangdong province) to prove that China discovered and exercised its sovereignty in Hoang Sa and Truong Sa archipelagoes from an early date.
But in fact, the excerpts extracted from China’s historical documents dating back before the 13th century and cited by Chinese scholars do not mention the name of any particular island, but only the Nanhai. In addition, in those quoted pieces, the two archipelagoes were described only as physical landmarks observed by navigators during their voyages crossing the East Sea. Only from the 13th century, the quoted pieces mentioned the name of some islands, but there were no such names as ‘Xi Sha’ and ‘Nan Sha’ (the names China gives to Hoang Sa and Truong Sa in Vietnam).
Some later historical sources described inspection, expeditionary and exploration trips China conducted in the region, including Hoang Sa and Truong Sa. In particular, China argued that under the Ming dynasty in the 15th century, explorer Zhenghe made seven journeys crossing the East Sea and after that he put the name of the two archipelagoes on the map.
However, those trips were not intended to claim land. They in fact were meant to explore the sea to get a deeper understanding of its being, seek trade partners and show off force to regional countries. China cannot name any historical book that testifies to its sovereignty over the two archipelagoes. Even in its historical documents in the 19th century, when Vietnam’s Nguyen Kings declared their ownership and exercise of sovereignty over Hoang Sa and Truong Sa, the two archipelagoes were only described as things seen accidently by Chinese ships on their journey passing the East Sea.
China’s ancient documents, such as Qiongzhou fu zhi (Geography of Qiongzhou), Guangdong sheng zhi (1731-Geography of Guangdong), Hoang Chao Yitong Yudi Zongtu (Chinese map of the unified empire) in 1894, all described and stated clearly that China’s southernmost point was Hainan. In the Zhongguo Sihixue Jiao Keshu (Chinese Textbook of Geography), published in 1906, page 241 reads “the southernmost point of China is the Jie Zhou coast, Qiongzhou Island, at 18 degrees 13 minutes north latitude”.
More than that, there are documents that implicitly acknowledge the link between these archipelagoes and Vietnam, or even recognise these archipelagoes as the defence line of Vietnam. For example, Yang Ping Nan’s book “Hai Lu” (1820-1842) wrote “the external route is connected with the inner route by Van Ly Truong Sa which lies in the middle of the sea. The archipelago stretches tens of thousands of “dam” in length. It serves as a shield to defend the outer part of Annam.”
China has many times cited the France-Qing agreement signed in 1887 to confirm that Hoang Sa and Truong Sa belonged to them. However, the agreement did not regulate the demarcation of islands off the coast of Vietnam and China, but mandated the boundary between Vietnam’s northern region and China.
Recently, China has quoted a number of speeches and documents of Vietnam, in particular Prime Minister Pham Van Dong’s diplomatic letter dated September 14, 1958 addressed to the then Premier of China Zhou En Lai, and argued that Vietnam had acknowledged China’s sovereignty over Hoang Sa archipelago.
In fact, the late Prime Minister Pham Van Dong’s diplomatic letter did not mention territorial and sovereignty issues relating to Hoang Sa and Truong Sa archipelagoes. It only acknowledged and approved China’s expansion of its territorial sea to 12 nautical miles and at the same time instructed Vietnamese agencies to respect the 12-nautical mile limit declared by China.
In addition, China knows only too well that the issue of defining borders and territory between the two nations could not be handled via a diplomatic letter. It must go through official negotiations by the two States and an agreement reached on the issue needs to be signed by representatives of the two States.
