With its dubious historic claims, China tried but failed to
convince the international community of its sovereignty over Vietnam’s
Hoang Sa (Paracel) Islands. Now China is resorting to much more
unacceptable and hardball tactics. This article will shed light on
Vietnam's arguments and China’s quibble.
At
the regular press conference of the Chinese Foreign Ministry on Monday,
spokesman Qin Gang said: "After considering the relevant content in the
press conference held by the Vietnam Ministry of Foreign Affairs last
Friday (May 23), I find it funny and ridiculous. Much of the historical
evidence indicates that the Xisha Islands (Paracel Islands of Vietnam)
has been the inherent territory of China. The Chinese had discovered and
named it and at the same time carried out business activities, managed
and performed sovereignty here the earliest. Chinese are the owner of
the Paracel Islands."
He also said: From the second century BC,
the Han Dynasty and the Chinese conducted maritime operations in the
East Sea and discovered the Paracel Islands. Then Chinese went to the
Paracel Islands to do business. Historical documents prove that from the
Tang and Song Dynasties, the Chinese carried out fishing activities in
the Paracel Islands. The navy of the Northern Song period conducted
effective management of the Paracel Islands. A famous astronomer of the
Yuan Dynasty established an astronomical station in the Paracel Islands.
That proves that the Paracel Islands was located in the territory of
China.To clarify the fallacious arguments of Chinese, we talked
with Dr. Tran Cong Truc, former Head of the Government’s Frontier
Committee.
China is totally wrong
Dr. Truc
emphasized that the Chinese side is completely wrong. Why? "Yes, the
Chinese claim that they have historical evidence to prove that Xisha
(Hoang Sa Archipelago of Vietnam) and Nansha (Vietnam’s Truong Sa
Archipelago) were formed in ancient times, in the BC era. I and many
other scholars have heard this many times.”
He continued: “We have
also done a lot of analysis and evaluation of this issue. China has
relied on a principle called historic sovereignty and historic title
over the islands they call Xisha and Nansha. They have exploited all the
elements recorded in the historical documents of China to say that the
Chinese were present in the East Sea and in these islands; they
discovered, explored, did business and then managed and performed their
so-called sovereignty over these islands.”
He said: “To be able
to clearly determine whether that theory of China justifies it
acquisition of territory, we need to consider it based on international
principles and international law in resolving disputed territories.“There
are islands in the East Sea, including Hoang Sa (Paracel) and Truong Sa
(Spratly) of Vietnam. Let’s me be clear that these islands belong to
Vietnam. China occupied Vietnam’s Hoang Sa Islands by force.
"The
argument that China made to justify its claim after using force to
occupy Vietnam's Paracels is based on the so-called theory of historical
sovereignty," Dr Truc said.
To assert and defend their claims,
both Vietnam and China have relied on the legal principles of true
occupation, historic sovereignty, and geographical distance."China
is using the historic sovereignty theory to prove its sovereignty. This
is an extremely outdated theory, which is not used by international law
to handle disputes over territorial acquisition of islands," Dr. Truc
specified.
According to Dr. Truc, at the present time, to assess
in an objective and scientific manner the legal points used by the
parties in sovereignty disputes, we need to understand some of the main
content of the principles determining the acquisition of national
territory in international law.
Dr. Truc stated: “In the long
history of the development of international law, the principles and
legal norms on the establishment of sovereignty have been formed on the
basis of international practice, including methods of acquisition of
territory. From the sixteenth century, the development and growth of the
countries like the Netherlands, England and France turned them into
powerhouses competing with Spain and Portugal, which by a decree of Pope
Alexander VI in 1493 divided the affected areas for these two countries
in the territory discovered outside Europe.
“In that context, the
maritime powers found the legal principles applicable to the
acquisition of territory to the territory that they had just discovered.
That is the principle of ‘right by discovery’. This principle gives
priority of occupation of a territory to the nation that discovered that
territory first. However, in practice, the principle of ‘the right by
discovery’ has never brought sovereignty to a country that discovered
the new territories. Because it is not possible to determine what
‘discovery’ is, the legal value of the discovery, who was the first to
discover it, and what is taken to mark that behavior of discovery.
Therefore, the concept of discovery was quickly supplemented by the idea
of nominal occupation, meaning that the country discovering a new
territory must leave traces of its presence there.
“However, the
principle of nominal occupation could not fundamentally resolve
complicated disputes between the powerhouses for the ‘promised lands’,
especially the territories of Africa and islands far from the mainland.
This led to more drastic confrontation between the great powers, because
they could not specifically agree upon what constituted ‘nominal
occupation’.
“Therefore, after the conference on Africa in 1885 of
13 European countries and the United States, and especially after the
session of the International Law Institute in Lausanne (Switzerland) in
1888, they agreed to apply a new principle. That is the principle of
‘Effective Occupation.’
Principles of "Effective Occupation"
Article
3, Article 34 and Article 35 of The Treaty of Berlin signed in 1885
determines the content of the principles of Effective Occupation and the
essential conditions for the Effective Occupation as follows:
First: There must be notification of an occupation to the nations joining this treaty.
Second:
Maintaining the territories in which a power has claimed occupation is
sufficient to ensure that the occupation is respected.
According
to Dr. Truc, the Declaration of the Lausanne Institute of International
Law in 1888 emphasized: "Every occupation that wants to make nominal
sovereignty ... must be true, i.e., real, not nominal". This statement
made the principle of effective occupation of the Berlin Treaty has the
common values in international law, allowing for sovereignty disputes
between countries all over the world to be considered and resolved.
The main contents of the effective occupation principle in international law include the following factors:
First: The establishment of territorial sovereignty must be conducted by the state.
Second:
The occupation must be conducted peacefully on a derelict territory
(Res nullius) or on a territory abandoned by a country that had
previously owned it (derelicto).
Third: The use of force to occupy
the territory is unlawful. The occupying state must enforce its
sovereignty in the necessary levels, at least appropriate with the
natural conditions and population of that territory.
Fourth: The exercise of sovereignty must be continuous and peaceful.
Now,
although the Saint Germain Convention of 1919 declared the Berlin
Treaty void on the basis that the world no longer had derelict
territories, lawyers and international tribunals have continued to apply
its principles to resolve sovereignty disputes over islands.
For
example, the La Haye International Tribunal in April 1928 applied these
principles to resolve disputes between America and the Netherlands for
Palmas Island. Similarly, the judgment of the International Court of the
UN in November 1953 referred to the Berlin Treaty for the sovereignty
dispute between Britain and France on the islands of Minquiers and
Ecrehous.
More recently, the International Court of Justice
decided in favor of Malaysia in its case against Indonesia in December
2002 for sovereignty over Pulau Sipadan and Pulau Ligitan, because the
court found that Malaysia had exercised a series of regular activities
of the state on these islands.
