At several international seminars recently, some senior officials, generals, diplomats and scholars of China claimed that the oil rig Haiyang Shiyou-981 is positioned within the exclusive economic zone of Hoang Sa (Paracel) archipelago of China. However, the claim is completely groundless, as many researchers have pointed out.
Associate Professor, Dr Nguyen Hong Quan counters China’s claim with international legal principles and historical and legal evidence of Vietnam’s sovereignty over Hoang Sa and Truong Sa (Spratly) archipelagos.
The principle of acquisition of territory in international law
While China bases its claim for the two archipelagos on the principle of “historic sovereignty” and “historic title”, citing some ancient documents mentioning Chinese travel in the East Sea , it should be pointed out that this principle has become outdated.
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 (such as real occupation, historic sovereignty or geographic distance) but it is the principle of acquisition that has become widely recognised and applied in resolving disputed territories.
So what is the main point of the principle of acquisition of territory?
From the 16th century, newly emerging powers such as the Netherlands , Britain and France were vying with the older powerhouses of Spain and Portugal for territories discovered outside Europe . They tried to seek an acceptable principle to divide the territories. The maritime powers looked at several methods, such as the principle of ‘right by discovery’, which 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 the act 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. It even 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, which was attended by 13 European countries and the United States , and the 1888 session of the International Law Institute in Lausanne , Switzerland , they agreed to apply a new principle. That is the principle of ‘Effective Occupation.’
Article 3, Article 34 and Article 35 of The Treaty of Berlin signed on June 26, 1885 determine 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 occupied territory with a power that is sufficient to ensure that the occupation is respected.
The Declaration of the Lausanne Institute of International Law in 1888 emphasised: "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 1885 Berlin Treaty widely accepted in international law, serving as the basis to consider and resolve sovereignty disputes between countries all over the world.
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 at the necessary levels, at least appropriate with the natural conditions and population of that territory. And
Fourth: The exercise of sovereignty must be continuous and peaceful.
For its relevance and strict nature, lawyers and international tribunals have continued to apply this principle to resolve sovereignty disputes over islands, although the Saint Germain Convention of 1919 declared the Berlin Treaty void on the basis that the world no longer had derelict territories.
The “historic sovereignty” on which China bases its claim for Hoang Sa and Truong Sa is no longer used in international law to deal with territorial disputes relating to islands, not to mention the fact that China used force to take over the islands from Vietnam, which is totally illegal in any case.
Vietnam has undisputable sovereignty over Hoang Sa and Truong Sa
Meanwhile, Vietnam’s sovereignty over Hoang Sa and Truong Sa is undisputable, and it has sufficient historical evidence and legal grounds to prove it.
Official historical records show that at least from the 17th century, Vietnamese kings had established sovereignty and conducted peaceful and continuous activities to enforce sovereignty over the two archipelagos, which were at that time not claimed by anyone. More specifically, the Nguyen Dynasty established a Hoang Sa Flotilla to exploit resources and exercise State management on Hoang Sa and Truong Sa archipelagos. In 1835, King Minh Mang ordered the building of a temple named Hoang Sa Tu and the erection of a stone statue on Hoang Sa archipelago. These activities took place over a long time without meeting with protest from any country, including China . This constitutes sufficient legal grounds for Vietnam to affirm that its sovereignty over the two archipelagos has been established since the feudal period.
At the same time, China has never claimed its sovereignty over the two archipelagos before. Many maps, particularly those published by China in the early 1930s, depict Hainan Island as the southernmost point of China and make no mention of Hoang Sa and Truong Sa. During Chinese President Xi Jinping’s visit to Germany in March, 2014, German Chancellor Angela Merkel presented Xi Jinping with one such map.
Following the Nguyen Dynasty, the French colonialist regime in Vietnam and later the Vietnamese Government continued to maintain sovereign and actual management of the two archipelagos. After colonising Vietnam in 1884, France took over the control of Hoang Sa and Truong Sa and built a meteorological station on the former. At the end of 1973, troops of the Republic of Vietnam ( South Vietnam ) stationed on Hoang Sa rescued a Chinese fishing family with five persons on board after their boat sank.
In August 1951, the San Francisco Conference on territorial disputes after the Second World War, with the attendance of 51 countries, recognised Vietnam’s sovereignty over Hoang Sa and Truong Sa. At the conference, head of the Vietnamese delegation Tran Van Huu, then Prime Minister of the Government under King Bao Dai, asserted Vietnam’s sovereignty over the two archipelagos in the presence of representatives from 50 other countries, including China , without meeting with any protest. Meanwhile, 46 out of the 51 participating countries rejected China ’s claim of sovereignty over Hoang Sa and Truong Sa.
In July 1954, parties to the Geneva conference on restoring peace in Indochina, including China , signed the Geneva Agreement recognising and pledging respect for Vietnam ’s independence and territorial integrity. After France withdrew all its forces from Vietnam , the Republic of Vietnam resumed the enforcement of sovereignty and management of Hoang Sa and Truong Sa through many activities and statements. However, in 1956, China brought its troops to attack and occupy the eastern part of Hoang Sa, and in January 1974, it occupied the western part of the archipelago. Then in March 1988, China used force to take Gac Ma reef from Vietnam .
Under international law, using force to acquire territory is not recognised. The above-mentioned acts of China violated one basic principle of international law which bans the use of force in international relations, as specified in Clause 4, Article 2 of the United Nations Charter. Therefore, China ’s occupation of Hoang Sa and some islands in Truong Sa is not valid regardless of how long it has occupied the areas and whatever management measures it has taken. This means that China ’s claim of undisputable sovereignty over the two archipelagos is unlawful.
Meanwhile, ever since 1974, Vietnam has been asserting its ownership and has never given up its sovereignty over Hoang Sa and Truong Sa. Vietnam protests all illegal acts of China as well as its sovereignty claim of the two archipelagos.
Regarding Prime Minister Pham Van Dong’s public letter
Some Chinese scholars intentionally quoted an official letter dated September 14, 1958 from Prime Minister Pham Van Dong to Chinese Premier Zhou Enlai, out of context. They argued that in this public letter the then Vietnamese leader publicly acknowledged China ’s sovereignty over Hoang Sa and Truong Sa.
However, the official letter never mentions a single word about China ’s territory or Hoang Sa or Truong Sa. It merely expresses support of China ’s declaration about the 12 nautical mile zone in its territorial waters. Moreover, this is in line with the then historical situation, because the two archipelagos were under the management of the Republic of Vietnam at that time following the 1954 Geneva Agreement, as mentioned above. As a participant in the Geneva conference and a country “helping” Vietnam negotiate the Geneva agreement, China , more than anyone else, knows only too well about the administrative and geographical boundary of Vietnam at Parallel 17 at that time.
In addition, China’s claim that there is no dispute regarding Hoang Sa runs counter to the fact that in September 1975, the then Chinese Deputy Premier Deng Xiaoping told the First Secretary of the Vietnam Workers’ Party Le Duan that the two sides (China and Vietnam) have different views about Hoang Sa and Truong Sa but the issue can be solved though negotiations!
China ’s acts run counter to international law
Since May 2014, after positioning Haiyang Shiyou-981 inside Vietnam ’s exclusive economic zone and continental shelf, China tried to justify its act with the claim that the rig’s site is within the exclusive zone and continental shelf of the so-called Xisha archipelago (Xisha is the name China gives to Hoang Sa). The claim is totally unlawful under international law, for the following reasons:
First, all rock islands in Hoang Sa have a small area, with the biggest being Phu Lam with an area of around 2 square kilometers, thus failing to meet the legal conditions for island status, which require an island to be able to sustain human habitation or economic activities of its own. Therefore, under the United Nations Convention on the Law of the Sea (UNCLOS), these rocks are not entitled to a 200 nautical mile exclusive economic zone and continental shelf. They can only have a 12 nautical mile territorial zone. This means the locations of China ’s rig Haiyang Shiyou-981 – at first 17 nautical miles and then 25 nautical miles from Tri Ton – are totally within Vietnam ’s exclusive economic zone and continental shelf without any dispute. These locations can never be inside the exclusive economic zone and continental shelf of Hoang Sa archipelago.
Secondly, China uses a large number of vessels of its coast guard, fisheries inspection, fisheries administration and military, together with military aircraft, to protect the rig Haiyang Shiyou-981 illegally placed deep inside Vietnam ’s exclusive economic zone and continental shelf. In particular, Chinese military ships lifted the cover of their guns and pointed the guns at Vietnamese civilian vessels. These acts clearly constitute a threat to use force. More seriously, Chinese ships intentionally rammed into Vietnamese coastal guard and fisheries surveillance vessels, damaging many of them and even sinking a Vietnamese fishing boat, at the same time injuring many Vietnamese law enforcement officers and fishermen operating in their traditional fishing ground within Vietnam ’s exclusive economic zone. This use of force is extremely dangerous, posing direct threat to peace, stability, security and safety of navigation and aviation in the East Sea .
The UN Charter bans the use of force or threat to use force in general and in regard to territorial issues in particular. All disputes must be solved through peaceful talks, and the use of force can only be justified in special circumstances such as self-defence or with mandate from the UN Security Council. And
Thirdly, China ’s announcement of a three nautical mile safety zone around Haiyang Shiyou-981 entirely runs counter to international law. Under UNCLOS, a nation can only set up a safety zone of 500m for structures and equipment at sea. In fact, China’s coast guard, fisheries surveillance, fisheries administration and military vessels intercept Vietnam ’s law enforcement ships operating inside Vietnam’s exclusive economic zone and continental shelf at a distance of 30-40 nautical miles from the rig, threatening the freedom, security and safety of navigation activities in the region. Moreover, China ’s reconnaissance and fighter aircraft frequently fly at a low altitude to intimidate Vietnam’s law enforcement and fishing ships, posing a great threat to aviation safety and freedom in the region as well.
One decade ago, China put forth the concept of “peaceful rise”, then “peaceful development” to assure the world that it will not seek hegemony. In 2013, China proposed the “silk road at sea” and asked to sign a friendship neighbourly agreement with the Association of South East Asian Nations (ASEAN). However, China ’s aggressive and provocative acts since 2009 on the East China Sea and the East Sea have shown the world the gap between its words and actions. The world has been viewing China as a power that tends to use force to change the status quo in the region and assert its sovereignty by creating “new facts” in the East Sea in defiance of international law, thus threatening regional security, peace and stability. As a result, regional countries’ trust in China has been diminishing. China should ask itself whether a peaceful and cooperative environment for common prosperity can be established by a hegemonic policy?.-VNA
Associate Professor, Dr Nguyen Hong Quan counters China’s claim with international legal principles and historical and legal evidence of Vietnam’s sovereignty over Hoang Sa and Truong Sa (Spratly) archipelagos.
The principle of acquisition of territory in international law
While China bases its claim for the two archipelagos on the principle of “historic sovereignty” and “historic title”, citing some ancient documents mentioning Chinese travel in the East Sea , it should be pointed out that this principle has become outdated.
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 (such as real occupation, historic sovereignty or geographic distance) but it is the principle of acquisition that has become widely recognised and applied in resolving disputed territories.
So what is the main point of the principle of acquisition of territory?
From the 16th century, newly emerging powers such as the Netherlands , Britain and France were vying with the older powerhouses of Spain and Portugal for territories discovered outside Europe . They tried to seek an acceptable principle to divide the territories. The maritime powers looked at several methods, such as the principle of ‘right by discovery’, which 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 the act 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. It even 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, which was attended by 13 European countries and the United States , and the 1888 session of the International Law Institute in Lausanne , Switzerland , they agreed to apply a new principle. That is the principle of ‘Effective Occupation.’
Article 3, Article 34 and Article 35 of The Treaty of Berlin signed on June 26, 1885 determine 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 occupied territory with a power that is sufficient to ensure that the occupation is respected.
The Declaration of the Lausanne Institute of International Law in 1888 emphasised: "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 1885 Berlin Treaty widely accepted in international law, serving as the basis to consider and resolve sovereignty disputes between countries all over the world.
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 at the necessary levels, at least appropriate with the natural conditions and population of that territory. And
Fourth: The exercise of sovereignty must be continuous and peaceful.
For its relevance and strict nature, lawyers and international tribunals have continued to apply this principle to resolve sovereignty disputes over islands, although the Saint Germain Convention of 1919 declared the Berlin Treaty void on the basis that the world no longer had derelict territories.
The “historic sovereignty” on which China bases its claim for Hoang Sa and Truong Sa is no longer used in international law to deal with territorial disputes relating to islands, not to mention the fact that China used force to take over the islands from Vietnam, which is totally illegal in any case.
Vietnam has undisputable sovereignty over Hoang Sa and Truong Sa
Meanwhile, Vietnam’s sovereignty over Hoang Sa and Truong Sa is undisputable, and it has sufficient historical evidence and legal grounds to prove it.
Official historical records show that at least from the 17th century, Vietnamese kings had established sovereignty and conducted peaceful and continuous activities to enforce sovereignty over the two archipelagos, which were at that time not claimed by anyone. More specifically, the Nguyen Dynasty established a Hoang Sa Flotilla to exploit resources and exercise State management on Hoang Sa and Truong Sa archipelagos. In 1835, King Minh Mang ordered the building of a temple named Hoang Sa Tu and the erection of a stone statue on Hoang Sa archipelago. These activities took place over a long time without meeting with protest from any country, including China . This constitutes sufficient legal grounds for Vietnam to affirm that its sovereignty over the two archipelagos has been established since the feudal period.
At the same time, China has never claimed its sovereignty over the two archipelagos before. Many maps, particularly those published by China in the early 1930s, depict Hainan Island as the southernmost point of China and make no mention of Hoang Sa and Truong Sa. During Chinese President Xi Jinping’s visit to Germany in March, 2014, German Chancellor Angela Merkel presented Xi Jinping with one such map.
Following the Nguyen Dynasty, the French colonialist regime in Vietnam and later the Vietnamese Government continued to maintain sovereign and actual management of the two archipelagos. After colonising Vietnam in 1884, France took over the control of Hoang Sa and Truong Sa and built a meteorological station on the former. At the end of 1973, troops of the Republic of Vietnam ( South Vietnam ) stationed on Hoang Sa rescued a Chinese fishing family with five persons on board after their boat sank.
In August 1951, the San Francisco Conference on territorial disputes after the Second World War, with the attendance of 51 countries, recognised Vietnam’s sovereignty over Hoang Sa and Truong Sa. At the conference, head of the Vietnamese delegation Tran Van Huu, then Prime Minister of the Government under King Bao Dai, asserted Vietnam’s sovereignty over the two archipelagos in the presence of representatives from 50 other countries, including China , without meeting with any protest. Meanwhile, 46 out of the 51 participating countries rejected China ’s claim of sovereignty over Hoang Sa and Truong Sa.
In July 1954, parties to the Geneva conference on restoring peace in Indochina, including China , signed the Geneva Agreement recognising and pledging respect for Vietnam ’s independence and territorial integrity. After France withdrew all its forces from Vietnam , the Republic of Vietnam resumed the enforcement of sovereignty and management of Hoang Sa and Truong Sa through many activities and statements. However, in 1956, China brought its troops to attack and occupy the eastern part of Hoang Sa, and in January 1974, it occupied the western part of the archipelago. Then in March 1988, China used force to take Gac Ma reef from Vietnam .
Under international law, using force to acquire territory is not recognised. The above-mentioned acts of China violated one basic principle of international law which bans the use of force in international relations, as specified in Clause 4, Article 2 of the United Nations Charter. Therefore, China ’s occupation of Hoang Sa and some islands in Truong Sa is not valid regardless of how long it has occupied the areas and whatever management measures it has taken. This means that China ’s claim of undisputable sovereignty over the two archipelagos is unlawful.
Meanwhile, ever since 1974, Vietnam has been asserting its ownership and has never given up its sovereignty over Hoang Sa and Truong Sa. Vietnam protests all illegal acts of China as well as its sovereignty claim of the two archipelagos.
Regarding Prime Minister Pham Van Dong’s public letter
Some Chinese scholars intentionally quoted an official letter dated September 14, 1958 from Prime Minister Pham Van Dong to Chinese Premier Zhou Enlai, out of context. They argued that in this public letter the then Vietnamese leader publicly acknowledged China ’s sovereignty over Hoang Sa and Truong Sa.
However, the official letter never mentions a single word about China ’s territory or Hoang Sa or Truong Sa. It merely expresses support of China ’s declaration about the 12 nautical mile zone in its territorial waters. Moreover, this is in line with the then historical situation, because the two archipelagos were under the management of the Republic of Vietnam at that time following the 1954 Geneva Agreement, as mentioned above. As a participant in the Geneva conference and a country “helping” Vietnam negotiate the Geneva agreement, China , more than anyone else, knows only too well about the administrative and geographical boundary of Vietnam at Parallel 17 at that time.
In addition, China’s claim that there is no dispute regarding Hoang Sa runs counter to the fact that in September 1975, the then Chinese Deputy Premier Deng Xiaoping told the First Secretary of the Vietnam Workers’ Party Le Duan that the two sides (China and Vietnam) have different views about Hoang Sa and Truong Sa but the issue can be solved though negotiations!
China ’s acts run counter to international law
Since May 2014, after positioning Haiyang Shiyou-981 inside Vietnam ’s exclusive economic zone and continental shelf, China tried to justify its act with the claim that the rig’s site is within the exclusive zone and continental shelf of the so-called Xisha archipelago (Xisha is the name China gives to Hoang Sa). The claim is totally unlawful under international law, for the following reasons:
First, all rock islands in Hoang Sa have a small area, with the biggest being Phu Lam with an area of around 2 square kilometers, thus failing to meet the legal conditions for island status, which require an island to be able to sustain human habitation or economic activities of its own. Therefore, under the United Nations Convention on the Law of the Sea (UNCLOS), these rocks are not entitled to a 200 nautical mile exclusive economic zone and continental shelf. They can only have a 12 nautical mile territorial zone. This means the locations of China ’s rig Haiyang Shiyou-981 – at first 17 nautical miles and then 25 nautical miles from Tri Ton – are totally within Vietnam ’s exclusive economic zone and continental shelf without any dispute. These locations can never be inside the exclusive economic zone and continental shelf of Hoang Sa archipelago.
Secondly, China uses a large number of vessels of its coast guard, fisheries inspection, fisheries administration and military, together with military aircraft, to protect the rig Haiyang Shiyou-981 illegally placed deep inside Vietnam ’s exclusive economic zone and continental shelf. In particular, Chinese military ships lifted the cover of their guns and pointed the guns at Vietnamese civilian vessels. These acts clearly constitute a threat to use force. More seriously, Chinese ships intentionally rammed into Vietnamese coastal guard and fisheries surveillance vessels, damaging many of them and even sinking a Vietnamese fishing boat, at the same time injuring many Vietnamese law enforcement officers and fishermen operating in their traditional fishing ground within Vietnam ’s exclusive economic zone. This use of force is extremely dangerous, posing direct threat to peace, stability, security and safety of navigation and aviation in the East Sea .
The UN Charter bans the use of force or threat to use force in general and in regard to territorial issues in particular. All disputes must be solved through peaceful talks, and the use of force can only be justified in special circumstances such as self-defence or with mandate from the UN Security Council. And
Thirdly, China ’s announcement of a three nautical mile safety zone around Haiyang Shiyou-981 entirely runs counter to international law. Under UNCLOS, a nation can only set up a safety zone of 500m for structures and equipment at sea. In fact, China’s coast guard, fisheries surveillance, fisheries administration and military vessels intercept Vietnam ’s law enforcement ships operating inside Vietnam’s exclusive economic zone and continental shelf at a distance of 30-40 nautical miles from the rig, threatening the freedom, security and safety of navigation activities in the region. Moreover, China ’s reconnaissance and fighter aircraft frequently fly at a low altitude to intimidate Vietnam’s law enforcement and fishing ships, posing a great threat to aviation safety and freedom in the region as well.
One decade ago, China put forth the concept of “peaceful rise”, then “peaceful development” to assure the world that it will not seek hegemony. In 2013, China proposed the “silk road at sea” and asked to sign a friendship neighbourly agreement with the Association of South East Asian Nations (ASEAN). However, China ’s aggressive and provocative acts since 2009 on the East China Sea and the East Sea have shown the world the gap between its words and actions. The world has been viewing China as a power that tends to use force to change the status quo in the region and assert its sovereignty by creating “new facts” in the East Sea in defiance of international law, thus threatening regional security, peace and stability. As a result, regional countries’ trust in China has been diminishing. China should ask itself whether a peaceful and cooperative environment for common prosperity can be established by a hegemonic policy?.-VNA
