With its dubious historic claims, China tried but failed to convince theinternational community of its sovereignty over Vietnam’s Hoang Sa(Paracel) Islands. Now China is resorting to much more unacceptableand hardball tactics. The article published by VietnamNetBridge willshed light on Vietnam's arguments and China’s quibble.
At a press conference of the Chinese Foreign Ministry spokesman QinGang said: "Much of the historical evidence indicates that the XishaIslands ( Paracel Islands of Vietnam ) has been the inherentterritory of China . The Chinese had discovered and named it and atthe same time carried out business activities, managed and performedsovereignty here the earliest. Chinese are the owner of the ParacelIslands."
To clarify the fallacious arguments ofChinese, VietnamNetBridge talked with Dr. Tran Cong Truc, former Head ofthe Government’s Frontier Committee.
Dr. Trucemphasised that the Chinese side is completely wrong. Why? "Yes, theChinese claim that they have historical evidence to prove that Xisha(Hoang Sa Archipelago of Vietnam) and Nansha ( Vietnam ’s Truong SaArchipelago) were formed in ancient times, in the BC era. I and manyother scholars have heard this many times.”
Hecontinued: “We have also done a lot of analysis and evaluation of thisissue. China has relied on a principle called historic sovereigntyand historic title over the islands they call Xisha and Nansha. Theyhave exploited all the elements recorded in the historical documents ofChina to say that the Chinese were present in the East Sea andin these islands; they discovered, explored, did business and thenmanaged and performed their so-called sovereignty over these islands.”
He said: “To be able to clearly determine whetherthat theory of China justifies it acquisition of territory, we needto consider it based on international principles and international lawin resolving disputed territories.
“There areislands in the East Sea , including Hoang Sa (Paracel) and Truong Sa(Spratly) of Vietnam . Let’s me be clear that these islands belong toVietnam . China occupied Vietnam ’s Hoang Sa Islands by force.
"The argument that China made to justify its claimafter using force to occupy Vietnam 's Paracels is based on theso-called theory of historical sovereignty," Dr Truc said.
To assert and defend their claims, both Vietnam and China haverelied on the legal principles of true occupation, historic sovereignty,and geographical distance.
"China is using thehistoric sovereignty theory to prove its sovereignty. This is anextremely outdated theory, which is not used by international law tohandle disputes over territorial acquisition of islands," Dr. Trucspecified.
According to Dr. Truc, at the presenttime, to assess in an objective and scientific manner the legal pointsused by the parties in sovereignty disputes, we need to understand someof the main content of the principles determining the acquisition ofnational territory in international law.
Dr. Trucstated: “In the long history of the development of international law,the principles and legal norms on the establishment of sovereignty havebeen formed on the basis of international practice, including methods ofacquisition of territory. From the sixteenth century, the developmentand growth of the countries like the Netherlands , England andFrance turned them into powerhouses competing with Spain andPortugal , which by a decree of Pope Alexander VI in 1493 divided theaffected areas for these two countries in the territory discoveredoutside Europe .
“In that context, the maritimepowers found the legal principles applicable to the acquisition ofterritory to the territory that they had just discovered. That is theprinciple of ‘right by discovery’. This principle gives priority ofoccupation of a territory to the nation that discovered that territoryfirst. However, in practice, the principle of ‘the right by discovery’has never brought sovereignty to a country that discovered the newterritories. 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, theconcept of discovery was quickly supplemented by the idea of nominaloccupation, meaning that the country discovering a new territory mustleave traces of its presence there.
“However, theprinciple of nominal occupation could not fundamentally resolvecomplicated disputes between the powerhouses for the ‘promised lands’,especially the territories of Africa and islands far from themainland. This led to more drastic confrontation between the greatpowers, because they could not specifically agree upon what constituted‘nominal occupation’.
“Therefore, after theconference on Africa in 1885 of 13 European countries and the UnitedStates , and especially after the session of the International LawInstitute in Lausanne ( Switzerland ) in 1888, they agreed to apply anew principle. That is the principle of ‘Effective Occupation.’
Article 3, Article 34 and Article 35 of The Treaty of Berlin signed in1885 determines the content of the principles of Effective Occupationand 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 claimedoccupation is sufficient to ensure that the occupation is respected.
According to Dr. Truc, the Declaration of the Lausanne Institute ofInternational Law in 1888 emphasised: "Every occupation that wants tomake nominal sovereignty ... must be true, i.e., real, not nominal".This statement made the principle of effective occupation of the BerlinTreaty has the common values in international law, allowing forsovereignty disputes between countries all over the world to beconsidered 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 derelictterritory (Res nullius) or on a territory abandoned by a country thathad previously owned it (derelicto).
Third: The useof force to occupy the territory is unlawful. The occupying state mustenforce its sovereignty in the necessary levels, at least appropriatewith 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 BerlinTreaty void on the basis that the world no longer had derelictterritories, lawyers and international tribunals have continued to applyits principles to resolve sovereignty disputes over islands.
For example, the La Haye International Tribunal in April 1928 appliedthese principles to resolve disputes between America and theNetherlands for Palmas Island. Similarly, the judgment of theInternational Court of the UN in November 1953 referred to the BerlinTreaty for the sovereignty dispute between Britain and France onthe islands of Minquiers and Ecrehous.
Morerecently, the International Court of Justice decided in favor ofMalaysia in its case against Indonesia in December 2002 for sovereigntyover Pulau Sipadan and Pulau Ligitan, because the court found thatMalaysia had exercised a series of regular activities of the state onthese islands.-VNA
At a press conference of the Chinese Foreign Ministry spokesman QinGang said: "Much of the historical evidence indicates that the XishaIslands ( Paracel Islands of Vietnam ) has been the inherentterritory of China . The Chinese had discovered and named it and atthe same time carried out business activities, managed and performedsovereignty here the earliest. Chinese are the owner of the ParacelIslands."
To clarify the fallacious arguments ofChinese, VietnamNetBridge talked with Dr. Tran Cong Truc, former Head ofthe Government’s Frontier Committee.
Dr. Trucemphasised that the Chinese side is completely wrong. Why? "Yes, theChinese claim that they have historical evidence to prove that Xisha(Hoang Sa Archipelago of Vietnam) and Nansha ( Vietnam ’s Truong SaArchipelago) were formed in ancient times, in the BC era. I and manyother scholars have heard this many times.”
Hecontinued: “We have also done a lot of analysis and evaluation of thisissue. China has relied on a principle called historic sovereigntyand historic title over the islands they call Xisha and Nansha. Theyhave exploited all the elements recorded in the historical documents ofChina to say that the Chinese were present in the East Sea andin these islands; they discovered, explored, did business and thenmanaged and performed their so-called sovereignty over these islands.”
He said: “To be able to clearly determine whetherthat theory of China justifies it acquisition of territory, we needto consider it based on international principles and international lawin resolving disputed territories.
“There areislands in the East Sea , including Hoang Sa (Paracel) and Truong Sa(Spratly) of Vietnam . Let’s me be clear that these islands belong toVietnam . China occupied Vietnam ’s Hoang Sa Islands by force.
"The argument that China made to justify its claimafter using force to occupy Vietnam 's Paracels is based on theso-called theory of historical sovereignty," Dr Truc said.
To assert and defend their claims, both Vietnam and China haverelied on the legal principles of true occupation, historic sovereignty,and geographical distance.
"China is using thehistoric sovereignty theory to prove its sovereignty. This is anextremely outdated theory, which is not used by international law tohandle disputes over territorial acquisition of islands," Dr. Trucspecified.
According to Dr. Truc, at the presenttime, to assess in an objective and scientific manner the legal pointsused by the parties in sovereignty disputes, we need to understand someof the main content of the principles determining the acquisition ofnational territory in international law.
Dr. Trucstated: “In the long history of the development of international law,the principles and legal norms on the establishment of sovereignty havebeen formed on the basis of international practice, including methods ofacquisition of territory. From the sixteenth century, the developmentand growth of the countries like the Netherlands , England andFrance turned them into powerhouses competing with Spain andPortugal , which by a decree of Pope Alexander VI in 1493 divided theaffected areas for these two countries in the territory discoveredoutside Europe .
“In that context, the maritimepowers found the legal principles applicable to the acquisition ofterritory to the territory that they had just discovered. That is theprinciple of ‘right by discovery’. This principle gives priority ofoccupation of a territory to the nation that discovered that territoryfirst. However, in practice, the principle of ‘the right by discovery’has never brought sovereignty to a country that discovered the newterritories. 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, theconcept of discovery was quickly supplemented by the idea of nominaloccupation, meaning that the country discovering a new territory mustleave traces of its presence there.
“However, theprinciple of nominal occupation could not fundamentally resolvecomplicated disputes between the powerhouses for the ‘promised lands’,especially the territories of Africa and islands far from themainland. This led to more drastic confrontation between the greatpowers, because they could not specifically agree upon what constituted‘nominal occupation’.
“Therefore, after theconference on Africa in 1885 of 13 European countries and the UnitedStates , and especially after the session of the International LawInstitute in Lausanne ( Switzerland ) in 1888, they agreed to apply anew principle. That is the principle of ‘Effective Occupation.’
Article 3, Article 34 and Article 35 of The Treaty of Berlin signed in1885 determines the content of the principles of Effective Occupationand 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 claimedoccupation is sufficient to ensure that the occupation is respected.
According to Dr. Truc, the Declaration of the Lausanne Institute ofInternational Law in 1888 emphasised: "Every occupation that wants tomake nominal sovereignty ... must be true, i.e., real, not nominal".This statement made the principle of effective occupation of the BerlinTreaty has the common values in international law, allowing forsovereignty disputes between countries all over the world to beconsidered 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 derelictterritory (Res nullius) or on a territory abandoned by a country thathad previously owned it (derelicto).
Third: The useof force to occupy the territory is unlawful. The occupying state mustenforce its sovereignty in the necessary levels, at least appropriatewith 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 BerlinTreaty void on the basis that the world no longer had derelictterritories, lawyers and international tribunals have continued to applyits principles to resolve sovereignty disputes over islands.
For example, the La Haye International Tribunal in April 1928 appliedthese principles to resolve disputes between America and theNetherlands for Palmas Island. Similarly, the judgment of theInternational Court of the UN in November 1953 referred to the BerlinTreaty for the sovereignty dispute between Britain and France onthe islands of Minquiers and Ecrehous.
Morerecently, the International Court of Justice decided in favor ofMalaysia in its case against Indonesia in December 2002 for sovereigntyover Pulau Sipadan and Pulau Ligitan, because the court found thatMalaysia had exercised a series of regular activities of the state onthese islands.-VNA
