Sovereignty Over The Paracel and Spratly Islands

Chapter I
Background Information on The Paracels and Spratlys
In order to clarify the vexed question of international law, the central issues
of which have just been outlined, it is essential to provide a geographical
description of the territories, a breakdown of the various elements
comprising the legal issues and the main strands of the chronology of events
on which the legal argument may be based.
GEOGRAPHICAL BACKGROUND
The island territories of the South China Sea are not all concerned by the
current disputes, which relate to only two archipelagos, now easily identi-
fiable on nautical charts.
The factual information collated here will be set forth separately for the
Paracels and for the Spratlys.
The enormous difficulty of precisely identifying all the elements
comprising these complex geographical configurations must be underlined.
In addition to the main islands, there are any number of rocks, sandbanks,
atolls, and coral reefs, some of them tiny. The topography is obscured by the
coexistence of different systems for naming the islands. Chinese, Filipino,
Vietnamese, French and English names have been superimposed on each
other, without any clear correspondence between them. Referring to one
system of names rather than another is not without symbolic significance. In
this book we shall therefore use the English names, the least suspect since
they do no not correspond to any particular claim.
General facts
Both archipelagos form part of four groups of coral islands scattered over the
South China Sea.1
1
The use in this book of this name, still widely used in geography textbooks although
nowadays contested by Vietnam, obviously does not imply any support for Chinese
claims regarding delimitation.
16 Chapter I
The other two (Pratas Island and Macclesfield Bank) are not the subject
of any dispute over sovereignty.
The archipelagos sprawl over a sea bounded by many territories. China,
Vietnam, Malaysia, Brunei and the Philippines form a crown around it.
These lands have little in the way of a continental shelf. The exceptions
are China, and to a lesser extent Vietnam, especially south-west Vietnam.
The Paracels and Spratlys, however, lie well beyond the geological
continental shelf, in the middle of a maritime zone which reaches a depth of
over 1,000 metres close to the Paracels and around 3,000 metres north-east
of the Spratlys.
From the legal standpoint, such facts are important, since no neigh-
bouring State is able to claim rights over the archipelagos on the grounds
that they belong, in geomorphological terms, to the continental shelf of any
particular country. The islands and islets do not emerge from a zone of deep
ocean floor which may be considered to be the natural prolongation of the
land territory of a particular State. This argument, as will be seen in the
following chapters, is however immaterial, since sovereignty over an island
formation is independent of the links between that formation and the subsoil
of the sea.
A few facts will underline the islands' geopolitical or geostrategic
importance, which stems from the major role played by this maritime zone in
global navigation.
To the south-west, the South China Sea connects with the Indian Ocean
via the Straits of Malacca and Singapore, to the north-east it meets the East
China Sea, which in turn connects with the Sea of Japan via the Strait of
Korea.
No global maritime power can afford to ignore this sea. A glance at the
map reveals that all maritime traffic traversing this sea is obliged to pass
between the two archipelagos. The importance of sovereignty and con-
sequently strategic control over these groups of islands therefore needs no
emphasis.
Lastly, the islands are uninhabited. Their small size has never allowed
any human development. Traditionally they have served as outposts for
seasonal fishermen. That aside, they have harboured only garrisons or, very
recently in the Paracels, a population of administrative origin, part of the
enormous drive to develop an infrastructure.
Background Information 17
The Paracels
Essentially, the Paracels lie between latitude 16° and 17° north and longit-
ude 111° and 113° east.
They consist of two main groups: the Amphitrites and the Crescent
group, which lie some 70 kilometres from one another.2
Added to these are a number of islands and isolated rocks.
In the west, the Crescent Group consists of 5 main islands: Robert Island
(0.32 square kilometres), Duncan Island (0.48 square kilometres), Palm
Island (0.09 square kilometres), Drummond Island (0.41 square kilometres),
on which there are 5 tombs, and Pattle Island (0.3 square kilometres), which
displays the remains of a landing stage and a channel.
Some 12 kilometres away lies Money Island (0.5 square kilometres), then
further south, Triton Island. Each island has its own coral reef, with openings
enabling shallow-bottomed craft to beach.
In the west, the Amphitrite group consists of Woody Island, Rocky
Island, South Island, Middle Island, North Island, Tree Island, and to the east
of this group, Lincoln Island.
The largest of them is Woody Island, which is no more than 4 kilometres
long and 2 to 3 kilometres wide.3
Apart from the two groups of islands mentioned above, the archipelago as
a whole consists of over 30 islets, sandbanks or reefs and occupies some
15,000 square kilometres of the ocean surface, which explains the extremely
dangerous nature of navigation in this vicinity, a fact borne out, travellers
say, by the number of wrecks.
It is the wrecks that signal the danger, in particular the steam
kettles, which last longer thanks to their weight and which,
owing to their size, can be spied from a long way off, surprising
the uninitiated, who are thus at first at a loss to explain the
nature of these protuberances on the reefs.4
Geologically speaking, the scientific studies undertaken during the period of
French colonization by the da Lanessan, the results of which were collated in
the notes published by Doctor A. Krempf, Director of the Oceanographic
Service, indicate that the submarine shelf from which the reefs and islets of
2
See map in Annex 3.
3
See list of islands and islets in Annex 4.
4
P.A. Lapicque, A propos des lies Paracels (Saigon, Les editions d'Extreme-Asie), p. 3.
18 Chapter I
the Paracels emerge lies at a depth ranging from 40 to 100 metres, and is
enveloped in a layer of coral.
This is a surface which was formed in the period of glaciation
and which, once again flooded by sea water after the glaciers
retreated, constantly provided optimum conditions for the
development of coral. At present, it is uniformly covered in
living coral, sand and coral gravel. (Notes by Doctor Krempf).
The climate is hot and humid, with abundant rainfall. There are frequent
mists. The islands are swept by winds (which give rise to currents, further
complicating navigation) and the area is frequently subject to typhoons.
There is vegetation on all the islands: phosphorite growths, trees, short grass
and bushes. On some of the islands there are freshwater springs. There are
vast numbers of birds and a great many turtles.
The economic resources can be divided into three groups:
- The resource of the future is obviously the offshore petroleum deposits.
The area is said to be promising, though as yet no precise data on actual
expectations have been published.
- The resource which has long been coveted and indeed still is and which
has been exploited to some extent is the phosphate deposits. This is what the
ground is made of in all the islands in the archipelago which are high enough
above sea level for vegetation to have developed. These deposits have been
formed from an originally calcium carbonate soil (coral). This soil has been
covered by birdlime containing phosphoric acid and the humid climatic
conditions have transformed it into phosphates. The layer of phosphates
which varies in content (23 to 25 per cent in some places, 42 per cent in
others) is frequently over 1 metre thick. This phosphate was mined between
1924 and 1926 by Japanese companies (and in some cases the deposits have
been completely depleted, Robert Island being an example). The damage
done at that time seems to have been substantial (trees felled, vegetation
destroyed). In 1956, the Saigon administration authorized a Vietnamese
industrialist, Mr Le Van Cang, to mine the phosphates in the Paracels. The
Vietnamese Fertilizer Company was to continue this process from 1960 to
1963. The most recent detailed data available before the advent of Chinese
control are those given by an engineer, Tran Huu Chan (August 1973), on
the occasion of a mission undertaken at the initiative of the Saigon
administration by Japanese and Vietnamese experts.5 This mission, which
was concerned only with the Amphitrites (the Crescent group having been
5
See the report of this mission in 'Les archipels Hoang Sa et Truong Sa', Le Courrier du
Vietnam, Hanoi, 1984, pp. 52 et seq.
occupied by China since 1956) found that there were still major phosphate
reserves left, though the conditions for mining them depended on a more
detailed examination of the samples taken.
- The third - and renewable - resource (except in the case of un-
controlled exploitation which would lead to the local disappearance of
certain species) is that of the marine fauna. However, the hope that there
might be pearl oysters, about which there had been much talk before World
War II, does not seem to have been borne out. Trawl fishing (which would
offer a high return) hardly seems possible owing to the chaotic and jagged
coral seabed. On the other hand, fishing for turtles has long been undertaken
both by Chinese fishermen from a number of ports in the south of Hainan
and by Vietnamese fishermen. However, this is carried out on a small scale,
not an industrial one, the resulting income providing no more than a living
for the fishermen's families.
Since the full-scale Chinese occupation of the archipelago, and
particularly from 1974 onwards, when the Chinese occupied the western part
of the islands (the Crescent group), Chinese activities throughout the archi-
pelago have intensified. Woody Island, the only one with a surface area
sufficient to support costly infrastructures, has been equipped with an airstrip
and an enlarged harbour. And a harbour was built by the Chinese Navy on
Triton Island in 1982.6
The Spratlys
Once again we encounter a vast underwater platform in the middle of the

South China Sea, though much further south than the Paracels, cut off from
any mainland or major island territory by ocean trenches up to several
thousand metres deep.
It is not easy to identify the archipelago clearly (even less so than in the
case of the Paracels) because the region includes widely scattered islands,
islets, banks and rocks. There are over one hundred of them, and the total
surface area encompasses almost 160,000 square kilometres of water (over
ten times bigger than the Paracels). Its northern limit is latitude 12° north
and its eastern limit longitude 111° east.
Various documents and nautical charts reveal the existence of 26 main
islands or islets, and many rocky outcrops and sandbanks of varying size,
named in several languages.7 The respective claims will be studied and
6
See Chi Kin Lo, China's Position Towards Territorial Disputes. The Case of the South
China Sea Islands (London, Routledge, 1989), p. 118.
7
See the list of islands in Annex 4.
20 Chapter I
examined later. We shall merely note at this point that not all the islands are
occupied. Some are occupied by the Philippines, Malaysia, Taiwan, China
and Vietnam respectively. The archipelago also includes seven groups of
rocks, identified on charts, which remain above the water at high tide.
The islands are small. Some are bare of vegetation, covered only by sand
and guano. Others have a few bushes, some a few coconut palms. Observers
note that the islands are more reminiscent of Oceania than of East Asia.
During the dry season, the climate is torrid. There are two annual
monsoons. If wells are sunk, it is possible to find fresh water and to cultivate
crops, at least such crops as withstand the heavily saline soil. A report by the
Vietnamese exploratory expedition of 1973 stated that some islands were
swarming with mosquitoes and rats.
Fishery resources appear to be considerable throughout the archipelago.
The distance from terra firma might cause problems (albeit not insurmount-
able) were large-scale fishing to be carried out.
The islands do not have and have never had a native population. All the
States which have staked claims currently maintain garrisons on one island
or another. When they administered the islands (between the two World
Wars) the French noted the sporadic presence of a few Chinese fisherman
from Hainan.8
As in the Paracels, and for the same reasons, the islands have seen a
build-up of guano, a coveted resource, and one which was mined by the
Japanese prior to World War II. The reserves of phosphorus are currently
estimated at 370,000 tonnes.
The promise of oil is repeatedly mentioned in the international press and
appears to have a solid foundation. According to Chinese sources, the
Spratlys are thought to harbour a reserve of 25 billion cubic metres of gas
and 105 billion barrels of oil.9
The main islands and rocks are: North Danger Group, comprising 4 islets
(North Reef, North-East Cay, South-West Cay and South Reef), one of
which is about one kilometre long; Trident Shoal, measuring approximately
14 by 11 kilometre; Lys Shoal; Thi Tu Island made up of two atolls, the
largest of which measures about 1 by 1.5 kilometres, having vegetation and
fresh water; Subi Reef, a coral ring; Loai Ta Island, a small island 0.3
kilometre long surrounded by extensive shallows; Tizard Bank, comprising
two main islands and three reefs, including Itu Aba Island which measures 1
by 0.4 kilometre. Itu Aba is the most important island, having wells sunk by
8
9
See 'Inoccupation d'ilots de la mer de Chine' (1933) Asie Fmncaise no. 313, at p. 266.
Newsweek, 15 May 1978, 'Treasure Islands'; China Daily, 24 December 1984.
the Japanese, and vegetation. Nam Yit Island is 0.5 kilometre long.
Discovery Great Reef is ring-shaped, and visited by fishermen of the region.
Fiery Cross Reef is an area of shallows approximately 26 kilometres long,
forming a semi-open lagoon containing some higher reefs. London Reef
complex comprises 4 shoals. Spratly Island is a small island 0.75 by 0.4
kilometre, with water and vegetation. It is also a source of guano and a
breeding ground for turtles. Amboyna Cay is covered with vegetation and
guano. Rifleman Bank is a large bank 56 by 24 kilometres, although it does
not normally stand clear of the water. Further south, near the Malaysian
coast, the group of banks and reefs known as James Shoal is thought to be
the site of a substantial reserve of gas and oil.
The centre of the archipelago is 'dangerous ground', so dangerous that
most vessels will not go near it. The States competing to annex these minute
outcrops have all gained a foothold here or there, although few of them
would support facilities.
The Taiwanese Navy maintains a garrison of almost one thousand men on
Itu Aba Island. Vietnam controls Spratly Island, its principal power base in
the area. The Philippines are present on Thi Tu Island and Loai Ta Island.
The People's Republic of China, a late arrival (1988-1989) in this archi-
pelago so far from its coast, has been obliged to found its claims on mere
sandbanks which are not always above sea level at high tide.
Major construction work has been carried out on Fiery Cross Reef, for
exampie, despite the fact that this thankless spot lies under 50 centimetres of
water during exceptionally high tides. A wharf, roads and a helicopter
hangar have all been constructed, coral formations having been dynamited
and the ground level raised over a sufficiently large area.
This completes our brief review, based on available documentation, of the
archipelagos so hotly disputed and so stridently claimed by various States.
THE LEGAL ISSUE
In order to clarify the issue of title to sovereignty over the two groups of
islands, we need to ask a first set of questions on the nature of the disputed
territories and the nature of the dispute, then consider the applicable law for
settling the dispute on a satisfactory basis.
22 Chapter I
Category of territory and identification of the dispute
The nature of the disputed territories
Examining the nature of the territories means asking two questions:

a) Do they constitute lands which are capable of appropriation?
The question is all the more relevant in that the archipelagos are composed
of a sprinkling of banks, islets and rocks, among which there are a few
proper islands. It needs to be asked, since the life of the oceans and
geological movement within the earth's crust may trigger off abrupt or
gradual upheavals perhaps obliterating certain territories which used to
protrude above the water.
However, the reply would not seem to be in doubt for either archipelago.
The concept of land which is capable of appropriation was raised before
the International Court of Justice in the Minquiers and Ecrehos case.10
For scholarly opinion, to be capable of appropriation an island territory
must apparently present at high tide a surface of land clear of the water
which is large enough to be habitable in practice. Some authors add that the
islands must also be shown on geographical maps.11 The debates at the Third
United Nations Conference on the Law of the Sea revealed the great
complexity of the problem. Article 121 of the Montego Bay Convention of
10 December 1982 uses a geological criterion, 'a naturally formed area of
land'. Artificial islands are thus excluded. On the other hand, the nature of
the area of land matters little. 'Mud, silt, coral, sand, madrepore, rocks, etc.,
anything makes an island.' l2
There is also a hydrographic criterion: protruding above the high-water
line. This distinguishes islands from low-tide elevations. However it does
not resolve the difficulty of defining high water, nor whether it includes
exceptional tides.
Both archipelagos contain many islands, but also islets, sandbanks, coral
reefs and rocks. Although the status of certain fringes is doubtful, there is no
doubt that the main islands, clearly identified on nautical charts, are capable
of appropriation. The fringes are then seen as accessories to the main islands.
10
International Court of Justice, Reports, 1953, at pp. 49 and 53.
11
See Gilbert Gidel, 'La mer territoriale et la zone contigue" (1934) Recueil des Cows de
I'Academie de Droit International, I I , vol. 48, at pp. 137-278.
12
Laurent Lucchini and Michel Voelckel, Droit de la mer, vol. I (Paris, Pedone, 1990),
p. 331.
Therefore the dispute indeed concerns lands which are capable of

appropriation.
b) Are these territories the kind which entail the attribution of extensive
maritime zones to the State which has sovereignty over them?
This question is tantamount to asking whether Article 121, paragraph 2, of
the United Nations Convention on the Law of the Sea is applicable to these
islands, islets and rocks, i.e. whether the annexation of the archipelagos, in
itself, gives exclusive rights to the living resources of the sea or the
resources of its subsoil within the limit of 200 nautical miles around the land
in question. Article 121, paragraph 2, states:
Except as provided for in paragraph 3, the territorial sea, the
contiguous zone, the exclusive economic zone and the
continental shelf of an island are determined in accordance with
the provisions of this Convention applicable to other land
territory.
It could be argued that these are rocks calling for the application of
paragraph 3 of the same article:
Rocks which cannot sustain human habitation or economic life
of their own shall have no exclusive economic zone or
continental shelf.
This is the crux of the current dispute, despite the fact that the protagonists
hesitate as to the best attitude to adopt in order to serve their own interests.
Looming behind the question of title to sovereignty - our strict focus here
- the decisive issue is control of the resources of the sea. The appetite of
States for maritime territory is growing in line with the role of fisheries in
national economies, and the importance of finite oil and mineral resources in
certain key industries. In order to decide between competing desires for
maritime space, international law allows for delimitation between States
with adjacent or opposite coastlines.
Sovereignty, however, is a prerequisite. The titleholder must be
established before identifying the resultant rights to adjacent waters and the
States between which the delimitation will be effected.
Strategies are hesitant. Each State claims possession of the land and
international recognition of what it considers to be an ancient title. Hoping
for a favourable outcome, each attempts to persuade all the partners that all
the islands are habitable, thus multiplying the maritime areas which would
fall under its national control.
24 Chapter I
However, when it comes to the claims of others, the interpretation of the

wording 'rocks which cannot sustain human habitation' becomes more
punctilious, in an endeavour to curtail the number of islands which would
give rise to broad rights over the adjacent waters.
Pending settlement of the conflict - which steadily recedes as positions
harden - certain parties have not hesitated to change the original reality. In
the Paracels particularly, since taking military control, the Chinese have
carried out spectacular development projects. In places where, until the end
of World War II, navigators and geographers described inhospitable lands
occupied only by seasonal fishermen, swept by typhoons or racked by
oppressive heat, harbours, airstrips, roads and fortifications or other facilities
have appeared, sustained by a feat of military logistics. All this has made the
words 'sustain human habitation' lose their original meaning.
The various States which have occupied islands in the Spratlys have also
expended a great deal of energy on similar schemes. This has been
encouraged because the above-mentioned paragraphs of the United Nations
Convention on the Law of the Sea, itself the fruit of complex compromises,
left several difficulties unresolved. How to distinguish between an island and
a rock? Under what conditions are human habitation on an island or an
economic life of its own feasible? 13
The last paragraph of Article 121 leaves a great deal to interpretation,
since the text does not say 'uninhabited rocks' but 'rocks which cannot
sustain human habitation'. For example, if the criterion for human habitation
is the presence of fresh water, then that is found on the main islands in both
the Paracels and the Spratlys. If it is the presence of vegetation, this is also
found.
The alternative to that condition is the possibility for an island to have an
economic life of its own. Once again, there is substantial imprecision.14 Do
fishing or the mining of guano constitute adequate activities?
For a reply to these questions, we must interpret Article 121, paragraph 3,
of the Montego Bay Convention.
The wording of the text indicates that artifice must be eliminated. The
rocks must sustain human habitation, eliminating the hypothesis that they
might be equipped to make them suitable for this. Similarly, mention is made
of an economic life of their own. Therefore cases where the islands serve as
outposts for activities which in fact are based in another territory cannot be
taken into account.
13
See on this subject J.R.V. Prescott, The Maritime Political Boundaries of the World
(London, New York, Methuen, 1985), pp. 72 el seq,
14
Ibid.
To sum up, land above the water, however insubstantial, must be capable
of supporting naturally a relatively stable community of people.15
Were both archipelagos able to do so from the beginning? No account
must be taken of the presence of garrisons, maintained only with military
support, nor of any population maintained there by means of costly infra-
structure and facilities, since it is well known that such developments,
widespread after the dispute has arisen, are designed to change the odds. It is
therefore necessary to go back to the state of the islands as described by
navigators or visitors before the conflict caused transformations.
Without doubt, the overwhelming majority of these sprinklings of land
come under paragraph 3 of Article 121. The status of some of the larger
islets is debatable, particularly Woody Island in the Paracels. If the human
habitation mentioned in the Convention is seasonal, then since ancient times
some islets have been visited for several months of the year, in the dry
season, by fishermen from various neighbouring countries who 'lived' there
without making the islets their usual abode. However no economic life of
their own, i.e. with a certain autonomy, has ever been possible for these
lands.
So it is noteworthy that most authors have tended to conclude that these
islands might well have a territorial sea but that they do not provide
entitlement to an exclusive economic zone.16
To make progress on the main issue - the validity of the titles claimed -
the exact nature of the dispute must be identified.
The legal nature of the dispute
Several States have irreconcilable positions regarding these archipelagos.

What then is the legal foundation of the claims of the various governments?
Does any one of them have a better title than another, or than others, which
demands recognition?
Vietnam asserts that it has territorial State sovereignty over both
archipelagos, on the grounds of ancient, continuously maintained titles. Let
us recall that:
Sovereignty in the relations between States signifies independ-
ence. Independence in regard to a portion of the globe is the
15 See Jon M. van Dyke and Dale L. Bennett, Islands and the Delimitation of Ocean Space
in the South China Sea, 13 March 1989, mimeographed paper, p. 41. See van Dyke and
16 Bennett, op. cit.; similarly, Jeanette Greenfield, China's Practice in the Law of the Sea
(Oxford, Clarendon Press, 1992), p. 164.
26 Chapter I
right to exercise therein, to the exclusion of any other State, the

functions of a State.17
China counters the Vietnamese claim to the Paracels with a claim of its own.
It has backed its claim by a military occupation which ousted the previous
Vietnamese presence, in 1956 for part of the archipelago and in 1974 for the
rest.
Contemporary international law (Charter of the United Nations, Article 2,
paragraph 4) prohibits the use of force against the territorial integrity of a
State. So a military occupation denounced as such cannot ever, in any way,
become a valid, recognized title.18
Matters are different in the Spratlys. The assertion of sovereignty by the
Vietnamese Government (subsequent to the affirmation of French sover-
eignty), and its control over the main islands of the archipelago, were
countered by Filipino and Taiwanese claims and occupations, more recently
by Malaysian and Chinese (1988) ones, the Chinese claim being accom-
panied by the military occupation of several islets after violent incidents.
These factual data prompt us (and even make it imperative) to examine
the nature of the dispute. Two possibilities must be considered in turn.
Is this a dispute relating to the acquisition of sovereignty over terra
nutlius? Or, is it a territorial dispute between two States which both claim
title to sovereignty?
The first possibility must be disregarded, since there are certain
similarities between the situation studied here and the Minquiers and
Ecrehos case.
Both parties contend that they have respectively an ancient or
original title to the Ecrehos and the Minquiers, and that their
title has always been maintained and was never lost. The
present case does not therefore present the characteristics of a
dispute concerning the acquisition of sovereignty over terra
nullius.' 19
These words may be transposed to the case of the archipelagos in the South
China Sea. It is no longer a question, and has not been for a long time, of
17
Max Huber, Arbitral Award, Island of Palmas, 4 April 1928, Reports of International
Arbitral Awards, vol. II, at p. 838.
18
See Tullio Treves, 'La declaration des Nations Unies sur le renforcement de 1'efficacite du
principe de non-recours a la force' (1987) Annuaire Francais de droit international, at
pp. 379 et seq.
19
Minquiers and Ecrehos case, International Court of Justice, Reports, 1953, at p. 53.
attributing sovereignty over terra nullius to a State which seeks to acquire

title. Rather the dispute will be settled only by resolving a territorial dispute
between several States, which occupy or have occupied the same lands over
very different time scales and on the basis of very different titles.
The dispute having been characterized, the question which then arises is:
what law will be applicable?
The norms of international law applicable to a settlement of the dispute
What legal approach can be adopted which might permit a conclusion as to

the merits of one claim against another? The concept of one single argument
will have to be abandoned in favour of a method which takes account of the
rhythms of time in relations with the law.
The argument of geographical contiguity
This argument must be jettisoned from the outset. In the history of claims of
sovereignty over island territories, the argument based on geographical
proximity has been used many times by one State or another (the Argentine
claim to the Falkland Islands for instance). However, it has never been
recognized as constituting a rule of international law making it possible, in
the event of conflict, to rule in favour of the State whose territory lies closest
to the disputed islands.20
In the Island of Palmas case, Judge Max Huber considered this argument
at length. His reasoning deserves to be quoted in extenso:
In the last place there remains to be considered title arising out
of contiguity. Although States have in certain circumstances
maintained that islands relatively close to their shores belonged
to them in virtue of their geographical situation, it is impossible
to show the existence of a rule of positive international law to
the effect that islands situated outside territorial waters should
belong to a State from the mere fact that its territory forms the
terra firma (nearest continent or island of considerable size).
Not only would it seem that there are no precedents sufficiently
frequent and sufficiently precise in their bearing to establish
20
The case of the Island of Bulama on the coast of West Africa (Ulysses Grant Arbitration
of 21 April 1878) cannot serve as a precedent. Apart from the fact that it is an isolated
case, the arbiter remarks that this island 'is adjacent to the mainland and so near to it that
animals cross at tow water'. Here contiguity occurs in such special conditions as to be
unique.
28 Chapter I
such a rule of international law, but the alleged principle itself is

by its very nature so uncertain and contested that even
Governments of the same State have on different occasions
maintained contradictory opinions as to its soundness. The
principle of contiguity, in regard to islands, may not be out of
place when it is a question of allotting them to one State rather
than another, either by agreement between the Parties, or by a
decision not necessarily based on law; but as a rule establishing
ipso jure the presumption of sovereignty in favour of a
particular State, this principle would be in conflict with what
has been said as to territorial sovereignty and as to the
necessary relation between the right to exclude other States
from a region and the duty to display therein the activities of a
State. Nor is this principle of contiguity admissible as a legal
method of deciding questions of territorial sovereignty; for it is
wholly lacking in precision and would in its application lead to
arbitrary results.21
Although dating back to the period prior to World War II, these comments
are still just as pertinent today.
They mean that one argument devoid of legal value can be eliminated
from the field of consideration, and one can but conclude, in the words of
Louis Cavare, 'It is impossible to accept that proximity can serve as basis for
the creation of a genuine right.' 22
Hence, the fact that, where the Paracels are concerned, the closest point in
these islands to Vietnam lies some 170 nautical miles from Da Nang and 156
nautical miles from the coast of Hainan, or that the distance separating the
closest point in the Spratlys from the coast of Vietnam (Cam Ranh) is 250
nautical miles, while that archipelago lies some 522 nautical miles from
Hainan, have no bearing on the legal substance.23
The legal substance must be weighed up in relation to a process of
acquisition of title and maintenance of title which consists of a lot more than
mere geographical data.
The question whether these archipelagos are situated in the exclusive
economic zone of one or other riparian State of this sea is neither here nor
there. In international law, it is not the fact that an island is situated within
21
Max Huber, Arbitral Award, Island of Palmas, 4 April 1928, op. cit., at pp. 854-855.
22
Louis Cavare, Droit international public positif'(Paris, Pedone, 1962), p. 597.
23
It is surprising to note the persistence of this argument among a handful of authors such as
Charles Rousseau, Revue generate de droit international public, 1972, at p. 835.
the exclusive economic zone which has any bearing on whether the island
belongs to one State or another, it is the title of sovereignty to an island
which, when it has been determined, leads, under certain conditions
examined above, to the attribution to this island of a territorial sea and, as the
case may be, of an exclusive economic zone, in which case the title
recognized will affect the actual data of the delimitation themselves.
By virtue of their land mass, both China and Vietnam, under the terms of
the 1982 Convention on the Law of the Sea, can claim rights up to 200
nautical miles, and in this respect, the Paracels lie in an area where the
potential rights of the two States overlap. It is the delimitation between them
which will determine their maritime boundary. However, sovereignty over
the archipelagos is not governed by the maritime delimitation, which would
include the Paracels in an area controlled by one or other of the two States.
On the contrary, it is a separate, preliminary question, whose outcome has a
bearing on the delimitation.
On the other hand, in this respect the Spratlys are in a very different
geographical position, since they lie outside the zones that either State
(China or Vietnam) can claim as continental shelf or exclusive economic
zone. However, some of the islands in this vast archipelago are closer to
Malaysia or the Philippines.
The machinery of intertemporal law
How in international law are the titles of acquisition to an uninhabited

territory constituted? How are these titles maintained? The answer to these
questions is provided by a subtle legal argument denoted by the name
intertemporal law.
Intertemporal law consists in comparing the particulars of the legal
system at the different periods of its development with the specific facts of
the situation which constitute the basis of the dispute.
The legal system has evolved over centuries of history woven between
human societies and territories. The rules which, at a given period, presided
over the acquisition of a title of sovereignty were gradually transformed.
Confirming the Latin dictum ubi societas, ibi jus, the law adapted to the
evolution of societies and to the values which they developed.
If one goes back to the period of the great discoveries, and noting only
the major turning points (which appear as such to us but in reality were slow
to emerge), three stages can be identified.
The first period is the one when, for islands which were said to be terra
nullius, territorial discovery served as acquisition of title, provided it was
accompanied by an affirmation of sovereignty. Yet this period was also
30 Chapter 1
characterized by the fact that the sovereignty of the State included the right
of conquest. Further, the Great Powers had treated many lands inhabited by
peoples unknown to them, which had developed their own non-western
systems of social organization, as terrae nullius.24
By this means, and showing complete disregard for the populations, the
word conquest could be omitted, being replaced by the much simpler
expression of 'discovery'.
This first system of law only changed under the influence of inter-Power
rivalry during the 19th century. The change in the law was crystallized at the
Congress of Berlin and in the precise terms of its General Act of 1885. Two
new rules were admitted by the signatories, Africa being essentially the field
of application.
These were the requirement that lands allegedly acquired should actually
be occupied and the requirement that other States should be notified of this
effective possession.
From that time onwards, supported by numerous arbitral awards or legal
decisions, international law with respect to territorial acquisition became
consolidated and widely accepted, in particular through the magisterial
award of Judge Max Huber in the Island of Palmas case.
A dispute over sovereignty between two States was settled by the finding
that one of the States concerned had greater title than the other. The relevant
acts must have been performed in sovereignty and could not therefore have
been performed by private individuals acting on their own behalf. A
distinction was drawn between creation of the title to the territory and the
maintenance of this title in continuity. The effects of an act produced as
giving access to the title (cession, conquest, discovery or occupation) must
be weighed up in the context of the law in force when that act was
performed, and not on the basis of the law in force at the time when the
dispute arose.
However, the initial title had to be backed up by the continuous, peaceful
exercise of the authority of the State active in the territory. And if the initial
title had been obtained without the display of authority throughout the
territory, maintenance of the title could only stem from the generalization of
such display. However, it was accepted that, where uninhabited, remote
lands were concerned, the manifestations of that display might be more
tenuous than in lands with more developed civilization.
24
See in this connection 'Terra Nullius, "droits" historiques et auto-determination',
Mohammed Bedjaoui. The Hague, 1975. Oral statements made before the International
Court of Justice in the case concerning Western Sahara on 14 May and 14, 15, 16 and
29 July 1975.
Lastly, the recognition or acquiescence of third States could not serve as

basis of the title itself, but was an element which reinforced the position of
the State exercising the authority.25
Such was the state of the law from the close of the 19th century until the
first half of the 20th century.
A number of fundamentally important and radically innovative elements
were introduced with the Charter of the United Nations, which laid the
foundations of a universal, international legal order. Concerned as they were
to attain the objective of the maintenance of peace, the founding States
introduced a vitally important element. This element constitutes a truly
revolutionary change in international law with the prohibition of the use of
force against the national integrity of a State (Article 2, paragraph 4). Wars
of conquest, as a source of new sovereignty over a territory, are now
prohibited. Conquest by force entails a situation of military occupation
which is always illegal and which, failing an agreement concluded between
the States concerned, cannot be transformed into law, even with the passage
of time.
However, the United Nations Charter also contained another principle
which lay at the root of considerable upheavals in international law, namely,
the right of peoples to self-determination (Article 1, paragraph 2, of the
Charter). However, the inclusion of this principle among those which
moulded the initial aims of the United Nations was not sufficient in itself to
ensure that it produced its full effect. Not until 1960 and the dawn of the
great decade of decolonization was what had hitherto been the law
completely overturned. It was then that the law of peoples attained its fullest
expression with the Declaration on the Granting of Independence to Colonial
Countries and Peoples (United Nations General Assembly Resolution 1514
of 14 December 1960).
Paragraph 4 of the Declaration is especially noteworthy in relation to the
legal principles enumerated here for their usefulness in illuminating the case
under consideration:
All armed action or repressive measures of all kinds directed
against dependent peoples shall cease in order to enable them to
exercise peacefully and freely their right to complete
independence, and the integrity of their national territory shall
be respected.
25
See, on these points, Kriangsak Kittichaisaree, The Law of the Sea and Maritime Boundary
Delimitation in South-East Asia (Oxford University Press, 1987), pp. 140 el seq.
32 Chapter I
The last phrase is crucially important. It highlights the fact that the difficult
transition of a colonized people to an independent people, which often takes
place in political conditions marked by confusion and disorder, must never
involve any encroachment on its territory.
Lastly, the Charter was strengthened, clarified, and extended in 1970 by a
particular resolution which has sometimes been compared to a constitutional
development of the Charter. This is resolution 2625 of 24 October 1970.26
This text reiterates the prohibition of the use of force as a means of settling
territorial disputes and also the fact that no territorial acquisition resulting
from the threat or use of force will be recognized as legal.
The Manila Declaration of 15 November 1982 on the Peaceful Settlement
of International Disputes crowns this edifice and defines the principles
which must in all circumstances take the place of violence.27
This is the set of rules which, by successive stages, have formed the
corpus of positive international law. The changes have never occurred
abruptly. Even the most salient one, prohibition of the use of force, had been
heralded by the provisions of the League of Nations Charter and the Briand-
Kellogg Pact, less precise and radical though those provisions may admit-
tedly have been.
As a rule, the elaboration of law and the gradual modifications through
which it passes are slow processes in which the part played by custom, itself
permeated by the slow development of attitudes, envelops the text of the
dated treaty or convention (should there be one) and, as it were, levels out
the temporal unevenness by absorbing it into a more blurred landscape.
Against the backdrop of this long evolution of the legal principles over
three periods sufficiently distinct for them to be specifically identified, the
history of the two archipelagos must be examined in relation to the troubled
history of Vietnam and to that - more uniform but nevertheless not free from
complications - of China, today Vietnam's principal rival for these lands.
One of the major difficulties of this case is the necessity to correlate two
totally different historical rhythms.
The law has been transformed step by step with the various historical
epochs, social evolution causing each period characterized as new to
engender different norms, whose gestation had been perceptible during the
preceding period.
Even if certain dates have the appearance of watersheds (1885 or 1945),
the law has developed within a certain continuum.
26
Known as Declaration on Principles of International Law concerning Friendly Relations
and Co-operation among States in accordance with the Charter of the United Nations .
27
General Assembly resolution 3710 .
It is against this background that the principal fault lines in the history of
Vietnam should be seen.
The first French protectorate over this sovereign State (even though it
was tied by vassalage to China) was in 1874, the actual protectorate regime
beginning in 1884. The Democratic Republic of Vietnam was created on
2 September 1945. A State of Vietnam within the framework of the French
Union was officially set up under the Agreements of 8 March 1949. In July
1954, putting an end to the hostilities with the Democratic Republic of
Vietnam, France concluded agreements whose practical consequences at the
time were the creation of two Vietnamese States. Reunification was to come
in 1975 after further hostilities.
Thus, despite its fierce and legendary independence, the Vietnamese
people was 'under supervision' for long decades of its history. And the
rightful holder of the sovereignty (the people) found itself lumbered with
spokesmen who were variously suffered, despised, resisted or endured. Not
counting the period of partition, during which this people experienced a
mutually hostile dual representation.
Certain episodes in the history of China must also be taken into con-
sideration. At the beginning of the 20th century, the Government of
Kwangtung was not recognized by Peking, nor by third States. From 1949
onwards, there were two Chinas, a situation which persists to this day. The
consequences of this state of affairs for the legal case were heavy. When the
Emperor of Annam acted as sovereign at the beginning of the 19th century,
what was the impact on his actions on the alleged vassalage with respect to
China? When France, having conquered Vietnam with arms, ignorant of a
great deal of the history of the people thus colonized, appeared hesitant,
uncertain; when the officials of its colonial administration were divided over
what attitude to take to the archipelagos; when France was slow to assert its
rights as a continuation of Vietnamese rights in face of Chinese appetites,
themselves considerably diminished by the Japanese threat in the region,
what was the significance of the French diplomatic and political correspond-
ence and how was it to be evaluated?
When the two parts of Vietnam, North and South, were riven by a war,
into which a foreign power, the mightiest power in the world, was throwing
all its weight, as were a number of other powers, what was the value of the
sometimes quite contradictory acts or declarations by one party or another?
In the long, chaotic, conflict-ridden, and even for a long period, dramatic
history of this part of the world, it is very difficult to assemble the sort of
incontrovertible documents which constitute evidence and are the material
on the basis on which the law can be established.
34 Chapter I
It is particularly hard for the claimants to the title to demonstrate the

complete continuity of the national will in the display of the maintenance of
the law. It is difficult, yet seemingly not impossible.
Admittedly, certain archive material is missing.28 This is not decisive to
the case, however.
Certain acts or declarations must be interpreted in the political context
which was theirs. There is thus room for a degree of subjectivity, which is
inevitable whatever the system of law applied. Yet through their rigour,
jurists must strive to build up objectivity.
At this juncture, therefore, let us turn to our analysis of a case of which it
has been said, 'Only the Falkland Islands is a more complex case than that
of the Paracets' 29
A chronology of the important facts is the first essential step.
CHRONOLOGY
Identifying the succession of events over the course of time is always
necessary when there are many facts, some of them old. The aim is simply to
present and clarify the case.
However, in a legal issue the chronology meets another need, that of
dating a certain number of events in order to situate them in relation to each
other, and to determine which took place first. The established pre-existence
of a fact may indeed have decisive legal effects.
Lastly, accurate dating, as well as the order of events over time, are
indispensable if we are to state the rules of international law under which
each fact or series of facts must be assessed.
There are still many difficulties in establishing a chronology.
The first task in trying to overcome these difficulties is to identify with
care the authors of the acts. Some acts were carried out by representatives of
States, but in complex cases of division, superimposition and rivalry
between the powers of States, it is necessary to identify the State concerned
with great accuracy. Other acts, in the realm of society, were carried out by
private individuals or population groups. They may have some value in the
legal argument, although never having the same authority as acts of the
State.
28
This needs to be viewed in the light of the awkward problem of the succession of archives
in the case of States issuing from decolonization.
29
Herve Couteau-Begarie, Geostrategie du Pacifique (Paris, Economica, 1987), p. 229.
Lastly, certain instances of conduct on the part of third States can and
must be taken into consideration and consequently included in the chrono-
logy.
Our chronology will be constructed around two major events which
concerned not only the protagonists but all the States in the area: the arrival
of a colonial power and World War II.
Before colonization
During this period a distinction can be made between discovery not followed
by the taking of possession or by occupation, and actual occupation.
Awareness of the existence of the archipelagos, as revealed by numerous
references to them in historical works, certainly dates back to ancient times.
However, awareness of their existence, as a result of their discovery by
various navigators, was something mentioned in accounts of journeys, or
came from the study of maps, and prior to the 18th century it was not
accompanied by any measure having legal ramifications.30
Fishermen from various neighbouring countries visited the islands over
the centuries. Navigators from more distant climes (Indians, Persians, Arabs,
Portuguese, Spaniards, Dutchmen) knew of them and spoke of them long
ago.
Among them were some French navigators who set sail for the Far East
from the port of La Rochelle on 7 March 1568, with Jesuit scholars on
board. They were to reach the Paracels.31 The islands became notorious in
maritime history with the wreck of the Amphitrite, sailing from France to
China in the reign of Louis XIV (1698).32 Old Chinese texts dating back to
various periods before the 18th century mention the existence of the islands,
of which Chinese navigators had long been aware.
However, until the 18th century, no major events having effects on the
status of the islands occurred.
Under the Nguyen dynasty, the rulers of Annam in the early 18th century,
a company was formed to exploit and protect the islands.
In 1816, Emperor Gia Long solemnly confirmed the sovereignty of the
Emperors of Annam over the archipelagos.
30
The legal discussion of the titles of discovery advanced by the various parties will be
presented, document by document, in the following chapter.
31
Le Thanh Khe, L'affaire des iles Paracels et Spratleys devant le droit international,
Institut International d'Etudes et de Recherches Diplomatiques, 1958.
32
Claudius Madrolle, 'La question de Hainan et des Paracels' (1939) Revue Politique
Etrangere.
36 Chapter I
The Minh Mang dynasty which succeeded Emperor Gia Long pursued his
work.
- 1833-1834 The order was given to erect a monument and to make a
map.
- 1835—1836 - Various works on the islands were taken forward under
the administration of the Emperor.
- 1847-1848 - The administration of the islands was maintained, its
purpose being geographical, for better reconnaissance of maritime routes, as
well as fiscal, to levy taxes on the fishermen of the region.
The period of French colonization up to the end of World War II
French domination began with a first Treaty of Protectorate signed in Saigon

on 15 March 1874. This was confirmed by a protectorate definitively
established under the Treaty of Hue (called the Patenotre Treaty) of 6 June
1884, which gave France substantial powers in a large number of fields.
The French controlled Tonkin and Annam. All the points in the territory
of the Empire were accessible to the French troops.
On 17 October 1887 the Indochinese Union was created, transformed
under Governor General Paul Doumer into a true colonial administration. In
essence, imperial power then passed into the hands of the Chief Resident.
The facts relating to either or both of the archipelagos during this period
were as follows:
- 1881-1884 - The Germans proceeded systematically to map the waters
of the Paracels (as they were doing throughout the South China Sea) without
making any claim to sovereignty.
- 1887 - On 26 June, France and China concluded a Convention
delimiting the frontier between Tonkin and China.
Inter alia, the text states:
In Kwangtung, it is agreed that the disputed points which lie
east and north-east of Monkai, beyond the frontier as
determined by the Delimitation Commission, are allocated to
China. The islands which are east of the Paris meridian
105°43'E, i.e. east of the north-south line passing through the
eastern point of the island of Tcha's Kou, or Ouan Chan (Tra
Co), which forms the boundary, are also allocated to China. The
island of Gotho and other islands west of this meridian belong
to Annam.
- 1895-1896 - Two shipwrecks in the Paracels, that of the German vessel
Bellona and that of the Japanese vessel Imezi Maru, caused disputes. Both
vessels were carrying copper insured with British companies. It proved

impossible to save the cargo and it was abandoned where it lay. Chinese
fishermen looted it and carried it away to Hainan by junk or sampan to resell
it to shipbuilders.
The insurance companies sought redress against those responsible, a
protest being lodged by the representative of Great Britain in Peking, and by
the Consul in Hoihow.
The local Chinese authorities (the Governor of Liang Guang) then
protested, disclaiming any responsibility on the grounds that, for them, the
Paracels were abandoned islands which belonged no more to China than to
Annam, that they were not administratively attached to any district of
Hainan and that 'no special authority was responsible for policing them'.33
- In 1899, Governor General Paul Doumer ordered a lighthouse to be
built on the Paracels. A study was carried out by the colony's technical
services. The lighthouse was not built because of lack of funds.34
- In 1909, on 6 June, the Viceroy Governor of Liang Guang (the Chinese
provinces of Kwangtung and Kwangsi) sent two small gunboats under
Admiral Li Zhun to debark for a short time (24 hours) on some islands in the
Paracels.
France made no protest.
- In 1920 a Japanese company, Mitsui-Bussan Kaisha, mined phosphates
on some islands, after seeking French authorization.
- From 1920 onwards France exercised maritime and customs super
vision over the Paracels.
- 30 March 1921 - The civilian Governor of Kwangtung announced that
the military Government of the south had decided administratively to
incorporate the Paracels into the sub-prefecture of Yai Hien (Hainan Island).
France made no protest (the Kwangtung Government being recognized
neither by the central Government of China nor by the Great Powers).
- From 1925 onwards a scientific study of the Paracels was carried out by
a team under Dr A. Krempf, Director of the Oceanographic Service, on
board the trawler de Lanessan. The same specially equipped vessel surveyed
the Spratlys in July 1927.
- On 8 March 1925 the Governor General of Indochina declared the
Paracels and Spratlys to be French territory.
33
Statement reported by the Governor General of Indochina to the Minister for the Colonies,
20 March 1930, Annex 5.
34
Same correspondence.
38 Chapter I
- 1927, the Consul General of Japan, Mr Kurosawa, asked the French

authorities in Indochina for information on the territorial status of the
Spratlys.
- November 1928 - The New Phosphates Company of Tonkin applied to
the Governor of Cochin China for a permit to prospect for mineral deposits
on Spratly Island.
- July 1927 - The Spratlys were officially visited by the vessel de
Lanessan.
- 1929 - 15 June - The Governor General of Cochin China requested the
Commander of the Navy in Indochina to undertake a voyage to Spratly or
Storm Island, which was administratively attached to the province of Ba Ria
(Cochin China).
- 1930 - 13 April - The Governor General of Indochina sent the advice-
boat Malicieuse to the Spratlys. The members of the expedition raised the
French flag on a hill. Communique of 23 September 1930 notifying the
other Great Powers that France had occupied the Spratlys.
- 1931 - A contract for the mining of guano deposits in the Paracels was
awarded by China. The French Government claimed the islands in a Note
handed to the Legation of China in Paris on 4 December 1931.
- 1932 - 29 April - Explicit protest by the French Government, relying
on Annam's historic titles and the evidence of the occupation by Annam and
subsequently by France.
In the same year, France proposed bringing the case before an inter-
national tribunal, and China opposed this.
- 1933 - 13 April - A flotilla detached from the French naval forces of
the Far East, under the command of Post Lieutenant Delattre, sailed from
Saigon to Spratly Island (the advice-boat Malicieuse, the gunboat Alerte and
the hydrographic vessels Astrobale and de Lanessan). Taking of possession
according to the time-honoured ceremony. A written document was signed
by the captains in 11 copies. Each island received its own document, encased
in a bottle itself sealed into a boundary-marker permanently fixed on the
ground. The French flag was raised and the clarion sounded on each island.
1933 By a decree of 26 July the French Government proclaimed the
occupation of the Spratlys archipelago by the French Navy. (The islands
were listed individually). Furthermore, by a decree of 21 December of the
same year, the Governor of Cochin China, Mr J. Krautheimer, officially
incorporated the Truong Sa archipelago into Ba Ria Province.
- In 1937 - the head of public works, Mr Gauthier, went on an official
mission to the Paracels, on behalf of the French colonial administration, to
study the potential for maritime and air traffic facilities, and to build a
lighthouse on Pattle Island.
- 1938-1939 - As a follow-up to the mission, France sent detachments of
the civil guards to the islands. By a decree dated 15 June 1938, the Governor
General of Indochina, Jules Brevie, created an administrative delegation in
the Paracels (Emperor Bao Dai having signed an order transferring the
Paracels from Nam Ngai Province to Thua Thien Province).
- On 5 May 1939 the same Governor General of Indochina, Jules Brevie,
amended the previous decree to create two administrative delegations in the
Paracels.
A marker had been erected on Pattle Island (Paracels) in 1938, bearing
the inscription: "French Republic - Kingdom of Annam - Paracels Archi-
pelago 1816 - Pattle Island 1938: A lighthouse, a meteorological station
and a radio station were installed on Pattle Island in the Paracels, and on Itu
Aba Island in the Spratlys.
- 1939 - 31 March - In a Note to the Ambassador of France, stating that
Japan had been the first to explore the islands in 1917, the Japanese Govern
ment (Foreign Ministry) announced that it controlled the Spratlys. Japan
noted the absence of a local administrative authority, viewing this as a
situation prejudicial to Japanese interests. On 4 April the same year, France
lodged a protest.
Among third States, it is interesting to note the position of the United
Kingdom, which was defined in the course of a debate in the House of
Commons on 5 April, when the representative of the Foreign Office stated
that the Spratlys were 'claimed in full sovereignty by the French Govern-
ment '.
- 1943 - 1 December - Communique of the Anglo-American-Chinese
Conference in Cairo affirming its will to strip Japan of the territories it had
stolen (Manchuria, Formosa, Pescadores) and restore them to the Republic
of China.
- 1945 - on 9 March the Indochinese detachment on duty in the Paracels
was taken prisoner by the Japanese Navy. The Japanese did not leave the
Paracels until 1946, being replaced in May of that year by a French infantry
platoon which landed from the Savorgnan de Brazza and stayed only a few
months.
Chiang Kai-shek landed troops on both archipelagos, on the pretext of
disarming the Japanese, landing in the Paracels in November 1946 and on
one island in the Spratlys in December 1946.
- 1945 - 2 August - Potsdam Declaration.
40 Chapter I
The period after World War II
- 1945 - on 15 August Japan capitulated. On 19 August the Viet Minh

seized power in Hanoi. Ho Chi Minh formed a provisional government on
22 August. On 25 August Emperor Bao Dai abdicated. On 2 September Ho
Chi Minh proclaimed the independence of Vietnam and the Democratic
Republic of Vietnam came into being.
France was determined to regain control of Indochina.
- 1946 - 28 February - A Franco-Chinese agreement was signed at
Chung King, enabling France to succeed China as the military presence in
Tonkin.
The Government of Ho Chi Minh and the representatives of France
signed the Agreements of 6 March 1946. Under the Agreements, France
recognized the Democratic Republic of Vietnam as a member of the French
Union.
- The application of the Agreements of 6 March 1946 was fraught with
difficulties. From December 1946, there was conflict on all fronts.
However, since France had chosen to back a 'nationalist' Vietnamese
State, the creation of a second Vietnamese Government was encouraged and
endorsed by the Agreements of 8 March 1949, and the Agreements of 1954
enshrined the existence of two Vietnams, bringing the war in Indochina to an
end. It was followed, however, by the Vietnam war, which lasted until the
reunification of the two Vietnams in 1975.
- In 1947 (7 January or 13 January, depending on the source) China again
landed troops on Woody Island (Paracels), taking advantage of the fact that
the French authorities were not occupying the islands. The French
Government lodged an official protest against this illegal occupation and
sent a detachment of French and Vietnamese soldiers to establish a garrison
on Pattle Island.
The Chinese Government protested in its turn and negotiations opened in
Paris, from 25 February to 4 July 1947. The Chinese Government rejected
the French suggestion to take the matter to arbitration. On 1 December 1947,
Chiang Kai-shek signed a decree giving both archipelagos Chinese names
and including them in Chinese territory.
- 1948, for China, was marked by events which diverted attention from
the situation in the archipelagos.
The advent of the People's Republic of China in 1949 considerably
changed the international context of the dispute.
- 1949 - April - At a speech given in Saigon, Prince Buu Loc, chef de
cabinet in the Government of Emperor Bao Dai, publicly reaffirmed
Vietnam's rights to the Paracels.
- 1950 - In April the garrison established by Nationalist China on Woody

Island was evacuated. The French detachment on Pattle Island was
maintained. On 14 October the French Government officially transferred
control of the archipelagos to the Government of Bao Dai. The Governor of
Central Vietnam presided over the handover ceremony in the Paracels.
It does not appear that there was any military presence whatsoever in the
Spratlys at that time.
- 1951 - The Spratlys were the subject of claims expressed at diplomatic
level. President Quirino of the Philippines claimed them for his country (on
17 May) on grounds of proximity. On 24 August the New China News
Agency disputed both the rights of France and the claims of the Philippines,
asserting China's rights in emphatic terms.
From summer 1951, the idea of a peace treaty with Japan began to take
shape. This treaty was signed on 8 September 1951. Article 2, paragraph 7,
of the Treaty stated that:
Japan relinquishes all rights, titles and claims to the Paracels
and Spratlys.
Learning of the draft treaty, the Foreign Minister of the People's Republic of
China, Chou en-Lai, on 15 August 1951 made public a declaration re-
affirming the permanence of China's rights over the archipelagos.
- 1951 - September - Opening of the San Francisco Conference. China
was not represented.35
Mr Gromyko at the plenary meeting of 5 September proposed 13 amend-
ments. The first of these envisaged the recognition by Japan of the sover-
eignty of the Chinese People's Republic over the Paracels and other islands
further south. This amendment was rejected by 48 votes to 3.
On 7 September, the Prime Minister and Minister for Foreign Affairs of
the Vietnamese Government of Bao Dai solemnly declared that the two
archipelagos fell within Vietnamese territory. This declaration elicited no
comment from any delegate.
There was thus no precise attribution of the islands by agreement at the
end of this Conference.
- 1952 - Debate in the Assembly of the French Union, asked to express
its opinion on the Peace Treaty with Japan. A number of statements were
made, some of them contradictory:
35
Mr Gorse, speaking in the Assembly of the French Union on 25 March 1952, referred to
the absence of China, of both Chinas, at this Conference as regrettable (Official Gazette of
the Assembly of the French Union, 25 March 1952, p. 367).
42 Chapter I
- Mr Nguyen Khac Su, Rapporteur of the Foreign Relations Committee,

remarked that Japan relinquished all rights to the archipelagos but that there
was no mention whatever in the text of their future destination.
He added:
...these islands have long formed part of the territory of
Vietnam. We venture to hope that, in the future negotiations
which cannot come too soon, their legal restitution will be
effected in a spirit of friendly understanding.
In the same debate, Mr Gorse said that although the Treaty excluded Japan
from these territories, it did not settle the problem of definitive devolution
and Mr Buu Kinh recalled Vietnam's rights, after Maurice Schumann,
Secretary of State in the Ministry of Foreign Affairs had stated:
It is quite true that the Spratlys and Paracels form part of the
dominion of the French Union.
There was a marked contradiction between these comments and those made
the following day, i.e. 26 March 1952, by Maurice Faure, Rapporteur for the
act of ratification of the Treaty. He considered that the islands had become
terrae derelictae.
- In October 1955, the International Civil Aviation Organization held a
conference in Manila. By resolution 24, the Taiwanese authorities were
requested to step up their meteorological observation work in the Nansha
Islands (Spratlys). No objections or reservations were forthcoming (accord-
ing to Chinese sources).
- 1956 - April - The French Expeditionary Force withdrew from Indo-
china. The South Vietnamese administration sent in armed troops to relieve
the French garrison on Pattle Island (Paracels).
However, the Chinese People's Republic landed troops which, with the
utmost discretion, occupied the eastern part of the Paracels (Amphitrites).
From 1956 onwards, the eastern Paracels were thus under military
occupation by the People's Republic of China and the western Paracels by
the troops of the South Vietnamese administration, which arranged hydro-
logic studies there and authorized the mining of phosphates.
The same year, Tomas Cloma, a national of the Philippines, landed on
some of the Spratly Islands on 15 March. In a private capacity, he and a few
companions took possession of certain islands which he baptized
'Freedomland', claiming the right of discovery and occupation. He informed
the Ministry of Foreign Affairs of the Philippines of this on 15 May.
At a press conference held in Manila on 19 May, the Ministry reiterated
the argument of proximity with a view to promoting the idea of the rights of
the Philippines to the Spratlys. However, Thomas Cloma having asked the
Government of the Philippines to grant the status of protectorate to the
administration he had set up, the representative of the Philippines declared
that, apart from the seven islands bearing the international denomination of
the Spratlys, all other parts of the archipelago were res nullius.
On 31 May, the Beijing Government issued a press communique stating
that no infringement of the Republic of China's rights over the Spratlys
would be tolerated.
However, on behalf of Nationalist China, the Taiwanese ambassador in
Manila asserted the rights of China dating back to the 15th century. And a
garrison of the Republic of China was then dispatched to Itu Aba, where it
has been maintained since that date.
However, on 1 June 1956, the Minister for Foreign Affairs of the
administration of South Vietnam, Vu Van Man, reaffirmed the rights of
Vietnam over the two archipelagos.
The following day, France reminded the Government of the Philippines
of the rights it had acquired since 1933.
On 22 August, the armed forces of Saigon's Navy landed on the main
island of the Spratlys, erected a monument and hoisted the flag.
In October the same year, the Taiwanese Navy moved in against Tomas
Cloma.
On 22 October 1956 - A Vietnamese decree incorporating the Paracels
into Phuoc Tuy Province was published.
- 1958 - In February, numerous Chinese fishermen tried in vain to settle
in the western Paracels.
On 4 September 1958, the Government of the People's Republic of
China published a declaration announcing that the breadth of the territorial
sea was 12 nautical miles.
The declaration specified that this stipulation applied to the archipelagos.
This information was disseminated on 6 September 1958 by the daily
Nhan Dan, organ of the Central Committee of the Vietnamese Workers'
Party. It was not challenged.
On 14 September the same year, the Prime Minister of the Vietnamese
Government, in a Note to the Chinese premier, stated:
The Government of the Democratic Republic of Vietnam
recognizes and endorses the declaration made on 4 September
1958 by the Government of the Chinese People's Republic on
the decision taken regarding China's territorial sea. The
Government of the Democratic Republic of Vietnam respects
that decision.
44 Chapter 1
- 1965 - 9 May - In response to the delimitation by the United States

Government of the "combat zone" for United States armed personnel in
Vietnam, the Government of the Democratic Republic of Vietnam declared:
United States President Lyndon Johnson has designated all
Vietnam and adjacent waters extending to a distance of 100
nautical miles from the Vietnamese coast, as well as part of
Chinese territorial waters adjacent to the Xisha Islands
belonging to the Chinese People's Republic, as a 'combat zone'
for United States armed personnel in Vietnam (Chinese source).
- 1969 - 13 May - The Vietnamese daily Nhan Dan, published the
following information:
On 10 May, a US military plane penetrated Chinese air space,
above Yong Xing and Dong dao, two of the Xisha Islands, in
the Chinese Province of Guang dong (Chinese source).
11 July 1971 - The President of the Philippines revealed that Nationalist
Chinese forces had occupied and fortified Itu Aba in the Spratlys, but did not
voice any claim to the archipelago by the Philippines, despite the fact that
Filipino soldiers had taken up position on certain islands. A press
communique of 13 July indicated that talks were in progress between Taiwan
and the Philippines concerning this archipelago. The same day, Saigon's
Minister for Foreign Affairs, Mr Tran Van Lam, present in Manila, recalled
the Vietnamese claim and the titles on which it was based.
On 16 July the same year, the New China News Agency condemned the
occupation of certain of the Spratlys by the Philippines and reasserted the
Chinese claims to the archipelago.
- 1973 - Despite the Paris International Conference of March 1973, the
Minister for the Interior of the South Vietnamese administration, on
6 September 1973, modified the administrative attachment of the Spratlys
(from now on to be part of Phuoc Tuy Province).
On 11 January 1974, Beijing said it saw this as an encroachment on
Chinese territory and reaffirmed its claims to the two archipelagos.
On 15 January, the People's Republic of China landed troops on the
western Paracels (Crescent group), hitherto occupied by Vietnam, and during
the following days backed up its action with a strong naval presence.
On 18 January, the Ambassador of Taiwan in Saigon reaffirmed Nation-
alist China's claim by a diplomatic memorandum.
On 19 and 20 January, the People's Republic of China shelled the islands
and landed its troops on them after violent clashes with Vietnamese forces.
The Vietnamese observer to the United Nations called upon the Security
Council to consider the matter.
The Provisional Revolutionary Government of South Vietnam made
public its position that, considering the complex nature of the problem, it
needed to be examined on the basis of the principles of equality, mutual
respect, friendship and good neighbourliness and settled by negotiation.
Asked to intervene by the administration of South Vietnam, the Pentagon
decided not to get involved in the conflict.
By diplomatic Note addressed to all the signatory States of the Paris
Agreements of 2 March 1973, the administration of South Vietnam recalled
that a guarantee of the territorial integrity of Vietnam had been given. It
called for a special session of the Security Council.
- 2 July. The delegate of South Vietnam made a statement to the United
Nations Conference on the Law of the Sea reaffirming Vietnamese sover
eignty over the archipelagos.
The Saigon administration decided to strengthen the defence of the
Spratlys, thus eliciting a protest from the Philippines.
- 1975 - 5 and 6 May - The Vietnamese People's Navy seized back
control of the Spratlys from the Saigonese troops.
On 10 September, the People's Republic of China dispatched a memo-
randum to the Democratic Republic of Vietnam asserting that the two
archipelagos had always formed part of Chinese territory.
On 24 September, on the occasion of a visit to China by a delegation
from Vietnam, Deng Xiaoping, Chinese Deputy Premier, announced: 'This
problem will naturally form the subject of discussions in the future.'
- 1977 On 12 May, the Government of the Socialist Republic of
Vietnam made an official pronouncement on the question of its rights in
maritime matters (territorial sea, contiguous zone, exclusive economic zone
and continental shelf).
In paragraph 5, it was stated that the islands and archipelagos forming
part of Vietnamese territory and lying beyond the territorial sea had their
own maritime territory.
- 1978 - On 2 March, the Philippine armed forces took possession of an
island in the Spratlys (Lankian Cay) in addition to the ones they had already
occupied.
- 1979 - By a decree issued in February, the President of the Philippines
said that he regarded virtually all the Spratlys as being under the sovereignty
of the Philippines (with the exception of Spratly Island itself).
- 1982 - In June, the New China News Agency announced the
development of a large harbour in the Paracels.
46 Chapter I
On 12 November, the Socialist Republic of Vietnam published a

declaration concerning the baselines used for measuring the breadth of its
territorial sea and included the archipelagos in this operation.
On 9 December the same year, modifications were made to the adminis-
trative attachment of the archipelagos to Vietnam.
- 1983 - 23 February - Malaysia raised the issue of its sovereignty over
three of the islands in the Spratlys. On 25 March, the Vietnamese Ministry of
Foreign Affairs disputed the fact that Malaysia had any rights over these
islands and islets. In June the same year, Malaysian troops were dispatched
to the Island of Hoa Lau, where they embarked on major building work.
Protest from Vietnam.
- 1984 - 2 June - The Chinese Parliament decided to create a special
administrative zone including the island of Hainan and the two archipelagos.
The Vietnamese Government issued a protest.
- 1988 - February - For the first time, the People's Republic of China
dispatched troops to some of the islands in the Spratlys and made a military
show of strength.
On 14 March, there was a naval incident in the vicinity of Johnson South
Reef, Collins Reef and London Reef. A number of Vietnamese vessels were
damaged.
The Chinese warships used heavy artillery. 74 Vietnamese sailors were
listed missing. And the Chinese vessels prevented Vietnamese rescue ships
bearing the insignia of the Red Cross from carrying out salvage operations.
After these incidents, according to Vietnamese sources, the Chinese Navy
continued to hamper supply operations by Vietnamese ships.
Both parties protested. However, since that date things have remained as
they were.
In April the same year, the Government of the Philippines had a mayor
elected as head of the municipality set up on those of the Spratly Islands
which it controlled (administrative centre - Thitu), thus conferring a more
solid administrative basis on this claim to the islands.
- 1989 - May - China occupied a further island.
In August 1989, Vietnam embarked on the construction of an economic
and scientific complex in the Spratlys.
- 1990 - August - The Chinese Prime Minister, Li Peng, proposed the
joint exploration of the area around the Spratlys.
- 1991 - 15-18 July - At the initiative of Indonesia, an international
conference was held in Bandung between the States of the region concerning
the Spratly archipelago. The final press communique advocated dialogue and
negotiation.
- 1992 - 25 February - The People's Republic of China adopted a new

law with a very extensive definition of its territorial waters and including the
archipelagos in them as Chinese territories.
In May, China granted the American Company Crestone Energy a
concession for petroleum exploration in the South China Sea in a sector
lying 300 kilometres from the coast of Vietnam, an area which the Hanoi
Government claimed as its exclusive economic zone.
On 8 July the same year, China seized possession of a number of
additional reefs in the Spratlys.
- 1994 - On several occasions, China reiterated its proposal to set aside
the territorial dispute and to harness the resources by means of joint
exploration.
In April 1994, the press (Far Eastern Economic Review of 13 October)
reported a naval incident involving a confrontation between a Chinese vessel
carrying out seismic research for Crestone and Vietnamese vessels ordering
it to quit an area considered by them to be under Vietnamese jurisdiction.
The Chinese vessel apparently refused.
On 23 June 1994, the Vietnamese National Assembly authorized the
Government in Hanoi to ratify the United Nations Convention on the Law of
the Sea.
- 1995 - 9 February - The Philippines protested against the People's
Republic of China for having occupied a small island in the Spratlys
(Panganaban) claimed by the Manila Government and for having embarked
on the construction of a shelter for boats.
Five States currently share the effective occupation of the Spratlys, China
being the only occupant of the Paracels since the military incidents in 1974.36
In the case of both archipelagos therefore, a legal analysis of the different
claims will need to be made.
36
See map, Annex 6.
Chapter II
Acquisition of the Original Title
The rules of intertemporal law outlined in Chapter I suggest that the major
periods of international law (and the norms which in each of them governed
the acquisition of territory) need to be correlated with the events relating to
the archipelagos during each of these periods.
It has been observed that, until the latter half of the 19th century, a State
could, by virtue of discovery accompanied by the assertion of sovereignty,
acquire sovereignty over an inhabited land.1
For this period, and in the light of this norm which will first be analysed
and clarified (I), the question of how there was first knowledge of the
archipelagos without that knowledge entailing a discovery with legal effects
needs to be examined (II). The actual acts of sovereignty effected by the
various States, the related evidence and the antecedence of some with respect
to others will then be considered (III).
By comparing the claims of the different parties, it will be possible to
establish whether, in respect of one or other of the protagonists, an original
title was created, in other words, whether one of the States possesses 'a title
superior to that which (he other State might possibly bring forward against
it'. 2
In Sections II and III, the Paracels and the Spratlys will be considered
separately.
THE NORMS OF INTERNATIONAL LAW REGARDING THE ACQUISITION OF

TERRITORIES UNTIL THE LATTER HALF OF THE 19TH CENTURY
The corpus of rules examined here is what has gradually emerged, in a

customary fashion, down the centuries, above all since the era which saw the
development of navigation and the great discoveries. Punctuated here and
there by a number of arbitral awards or theoretical works, it did not undergo
1
See Chapter 1, p. 15.
2
Island Of Palmas Award, Max Huber, 4 April 1928, op. cit., at p. 839.
50 Chapter II
any significant change until the 1884 Congress of Berlin. The rules which
are reviewed here are now held to be general ones based on a very European
concept of international relations. Whether they are truly universal, in other
words, what the rules in force were during the periods concerned in other
parts of the world, will also need to be examined.
In the context of international law of western origin, acquisition of
territories means either the assertion of a new sovereignty where there was
none hitherto or a sovereignty modified by a change in the holder of it. The
case of the Paracel and Spratly archipelagos is, or was originally, a matter of
the establishment of a new sovereignty. It is this point which needs to be
examined here, leaving the matter of the possibility of a change in the holder
of the sovereignty for the following chapter.
It is a well-known fact that (sovereign) State power usually derives from
a triangular relationship between a government, a territory and a population.
In the colonial conquests (the particular case of the protectorate apart),
the local population was ignored and the territory reduced by a fiction to the
status of res nullius, this artifice enabling the western powers to act as
though affirming a new sovereignty.
But in other cases, it was specifically a matter of terra nullius owing to
the genuine absence of a settled population (as the comings and goings of a
seasonal population did not warrant the status of inhabited land). It is the
rules relating to this case (or to this series of cases) that need to be clearly
identified.
The general principle of these rules is, or rather was during the long
period referred to here, that, for uninhabited territories hitherto ownerless:
...a claim to sovereignty based not upon some particular act or
title such as a treaty of cession but merely upon continued
display of authority, involves two elements each of which must
be shown to exist: the intention and will to act as sovereign, and
some actual exercise or display of such authority.3
Hence, two sorts of elements must be shown to exist for the acquisition of
sovereignty to be accepted under international law. There are elements which
are physical, material (corpus). These are inadequate without an element of
intent (animus), in other words, the clearly expressed will to act as
sovereign.
3
Permanent Court of International Justice, Advisory Opinion regarding Eastern Greenland,
ICJ Reports 1933, p. 45 {territory disputed between Denmark and Norway).
Acquisition of the Original Title 51
The 19th century is strewn with major arbitral awards, on which

occasions the arbiters, or the scholarly opinion through the medium of the
commentaries on the decisions, refined this requirement.
Discovery accompanied by a public affirmation of sovereignty
creates no more than an inchoate title capable of removing third
States from the territory to which it applies, during the time
necessary for its development through occupation, but not
indefinitely, as it is enough to enable its possessor to supple-
ment it by actual occupation, that cannot be a substitute for it.
To improve the title, to make it complete and definitive, 'the
intention to appropriate the territory discovered must be
accompanied by actual possession, in other words, the country
must be completely under the control of the party concerned
and it must have undertaken works which constitute
settlement'.4
This was the doctrine expressed in the middle of the last century and
confirmed by arbitral case-law and diplomatic practice.5
There is no shortage of varied expressions of the same view. It may be
summarized as follows: discovery in the 15 th century, followed, in the 17th
century, by a public affirmation of sovereignty, provided an inchoate title
which actual possession of the island in the 19th century had completed.6
Two groups of alternate elements may be identified here: a factual
element: discovery, then the element of intent, the indispensable public
affirmation of sovereignty and, lastly, reinforcement of the factual element.
The material element As the above
quotations show, the concrete facts fall into two categories.
5
Eugene Ortolan, Des moyens d 'acquerir le domaine international, Paris, 1851, p. 49.
Aves Islands case. Award of 30 June 1865 between the Netherlands and Venezuela, A. de
la Pradelle and N. Politis, Historical Note, Recueil des Arbitrages Intemationaux, vol. II,
pp. 417-418. See also Beatrice Orent and Patricia Reinsch, 'Sovereignty over Islands in
6
the Pacific', American Journal of International Law, 1941, at pp. 443 et seq.
Case concerning the Island of Bulama, Award of 21 April 1870 between Great Britain and
Portugal.
52 Chapter II
Mere knowledge of the territory
Little can be said about man's first encounter with an unknown territory. It
relates to a whole mythology surrounding terra incognita. Matters are often
more prosaic. We will revert below to the issue of how confusion often arises
(sometimes with ill intent) between knowledge of a territory and its
'discovery'.
A territory, and especially an island or an archipelago, can easily have
been known from time immemorial to navigators frequenting those parts, to
geographers keen to extend their work to include all territories regardless of
who owns them, yet at the same time never have formed the object of any
'discovery' producing legal effects. The latter can only derive from facts of a
certain nature issuing from specific authorities.
However, supposing this condition, which falls in the domain, of
intentionality, (discussed in the following paragraph) is met, it is never-
theless true that the first stage in the discovery must subsequently be
reinforced.
The notion of taking possession
The law of the period under consideration here must not be confused with
the law in force since the Berlin Congress. It should not be overlooked that
only from 1884-85 onwards has there been a specific requirement of actual
occupation (Article 35 of the Berlin Act), that this requirement cannot have
retroactive effect and that to consider it as so having would be to make an
error of law.
For to require of the acquisition of sovereignty by occupation an
active taking of possession, uninterrupted and permanent, is to
apply to acts dating from the 18th century and the early 19th
century a principle of law not proclaimed until 1885 by the
Berlin Conference; the declarations of that Conference cannot
have retroactive effect.7
However, long before the Berlin Act, it was accepted and required that
occupation should materially amount to more than symbolic acts. 'Mere
discovery has never constituted sufficient basis for a claim to terra nullius'...
7
Paul Fauchille, 'Le conflit de limites entre le Bresil et la Grande-Bretagne' (1905) Revue
generale de droit international public, Paris, at p. 135.
The symbolic ceremonies were generally supplemented by

some exercise of administrative authority, such as the granting
of a lease, or by lodgement of private citizens.8
It was a matter of the legal relations between States.
International law in the 19th century, having regard to the fact
that most parts of the globe were under the sovereignty of States
members of the community of nations, and that territories
without a master had become relatively few, took account of a
tendency already existing and especially developed since the
middle of the 18th century, and laid down the principle that
occupation, to constitute a claim to territorial sovereignty, must
be effective, that is, offer certain guarantees to other States and
their nationals.9
However, it will be noted:
First, that the degree of effectiveness of the occupation required during
this period had none of the rigour or scope required of occupations under the
Berlin regime:
Territorial sovereignty could be acquired in the past in
conditions which would not suffice today.10
Second, that in all ages it has been necessary to adapt the requirement of
effectiveness (regardless of the legal degree of it required) to the circum-
stances of the place and the topography of the territory.
... A claim to sovereignty based upon continued display of
authority involves two elements, each of which must be shown
to exist: the intention and will to act as sovereign, and some
actual exercise or display of such authority. (.,.)
True, the Permanent Court recognized that, in the case of
claims to sovereignty over areas in thinly populated or unsettled
countries, 'very little in the way of actual exercise of sovereign
rights might be sufficient in the absence of a competing
claim'.11
8
Beatrice Orent and Patricia Reinsch, 'Sovereignty over Islands in the Pacific' (1941)
American Journal of International Law, pp. 443 et seq.
9
Max Huber, Arbitral Award, Island of Palmas, op. cit., pp. 845-846.
10
Paul Reuter, Droit international public (Paris, PUF, 1968 Ed.), p. 117.
11
International Court of Justice, Advisory Opinion concerning Western Sahara, ICJ Reports
1975, p. 43.
54 Chapter II
The element of intention
Thus (in the system of intertemporal law we must apply here) mere
discovery must be followed by acts of occupation meeting the requirement
of qualified effectiveness described above.
Such acts could lead to the acquisition of rights which could be invoked
against third States only if there was an intention (animus) to act as
sovereign.
For this reason acts by private individuals which were not immediately
followed up by the public authorities are disregarded.
The debate is of long standing. It was pursued by the parties in the Aves
Island case (Netherlands v. Venezuela). The arbitrator concluded:
Having regard to the established fact that the inhabitants of
Saint-Eustache, a Dutch possession, fish for turtles and collect
eggs on Aves Island, this practice, implying as it does merely
temporary, precarious occupation of the island and being not the
exercise of an exclusive right, but the consequence of the
abandonment of fishing by the inhabitants of neighbouring
countries or by the island's legitimate owner, cannot found the
right of sovereignty; 12
Intention derives either from the actual nature of certain facts or from the
standing of the party performing the acts.
This question lay at the heart of the Minquiers and Ecrehos case between
France and the United Kingdom.
In that case the International Court of Justice considered, among other
things, the fact that the Jersey courts had exercised criminal jurisdiction in
respect of the Ecrehos, that Jersey had levied local taxes on habitable houses
or huts built by the inhabitants of Jersey on the Ecrehos, that fishermen
living on and fishing from the Ecrehos had been entered in the register of
fishing boats for the port of Jersey, and that contracts of sale relating to real
property on the islets of the Ecrehos had been concluded in Jersey and
registered in the public register of deeds of that island.13 Together these facts
proved the United Kingdom's assertion of sovereignty.
12
Moore 5, 5037 (original Spanish).
13
See International Court of Justice, Reports, 1953, at p. 65.
Conversely, certain facts invoked by France, such as buoying outside the

reefs of the group could 'hardly be considered as sufficient evidence of the
intention of that Government to act as sovereign over the islets '.14
Thus what the Court required was acts that could be considered to be
displays of exclusive State authority over the territory concerned.
Lastly, the 'animus', as distinct from actual facts, is not lost by reason of
their absence. This was a key element of the legal system which prevailed
until the late 19th century. A territory is abandoned by its sovereign (and
cannot therefore be claimed by another sovereign) only if both elements
which together establish sovereignty are lacking.
In international law, derelictio results from two elements: in
material terms, the absence of any effective administration of
the territory concerned; in psychological terms, the intention to
abandon the territory.15
The rule is of long standing and is still in force. It has been mentioned and
applied in various arbitrations.
It follows from these premises that Clipperton Island was
legitimately acquired by France on November 17, 1858. There
is no reason to suppose that France subsequently lost her right
by derelictio, since she never had the animus of abandoning the
island, and the fact that she has not exercised her authority there
in a positive manner does not imply the forfeiture of a acquisi-
tion already definitively perfected.16
Or again:
Against these titles, the fact of not having actually occupied the
island did not prove anything, since the abandonment of the
exercise of sovereignty was not enough to establish its loss, the
titleholder further had to renounce the animus possidendi.17
14
Idem, p. 71.
15
Gerard Cohen-Jonathan, 'Les iles Falkland (Malouines)' (1972) Annuaire Francois de
Droit International (Paris, CNRS), at p. 238.
16
Clipperton Island, Arbitral Award by King Victor Emmanuel III (1932) American Journal
of International Law, at p. 394.
17
Aves Island case, Netherlands-Venezuela, 30 March 1865, Moore 5, 5027 (original
Spanish).
56 Chapter II
Such was the law until 1884. Title to sovereignty arose only from a blend of
discovery followed by the taking of effective possession accompanied by the
will to act as sovereign.
Two elements then supplemented this norm: the taking of effective
possession must be evaluated on the basis of the location: the interruption of
physical manifestations of sovereignty did not in itself interrupt sovereignty
if there had been no clear renunciation of it.
Was this set of norms equally valid throughout the world at the time (until
the end of the 19th century)? It would appear that in Asia the abstract
concept of the territoriality of the State was linked less to a spatial definition
of legal jurisdiction and more to the loyalty of subjects and the social
organization of society, elements which could not apply to uninhabited
territories.18 This specificity must be taken into consideration in the analysis.
We shall first examine the period prior to the 18th century, which was
characterized by mere awareness of the islands, then the period which saw
an assertion of sovereignty, from the 18th century onwards.
AWARENESS OR DISCOVERY. THE SITUATION OF THE ARCHIPELAGOS

BEFORE THE l8TH CENTURY
A clear distinction must be made between the concept of geographical

awareness and that of discovery, their legal effects being fundamentally
different.
There is no doubt that since ancient times (difficult to date) the
archipelagos were known to geographers and navigators from various lands.
They are mentioned in a host of documents (albeit with the relative lack of
precision inherent in old map-making techniques).
However the names in use before the 18th century do not allow us to
conclude that there was universal recognition of the sovereignty of any one
State over either archipelago. Works of geography do not therefore support
the claims of one party or another in ancient times. These observations flow
from consultation of the maps available at the French National Library. The
archipelagos are identifiable on many maps dating from the early 18th
century or later.'19 However, the names are given in various languages (often
18
See van Dyke and Bennett, Islands and the Delimitation of Ocean Space in the South
China Sea, statement at the Conference held in Bali (Indonesia) on the question of
hydrocarbons in the South China Sea, 13 March 1989, mimeographed paper, p. 11.
19
In particular:
18th century Dutch nautical chart (GeB 220)
that of the navigator or mapmaker), making it impossible to use such charts

to infer conclusions of a legal nature concerning title to sovereignty at the
time.
Despite the fact that China and Vietnam claim to have asserted their
rights since time immemorial, as things stand there are no documents in the
case allowing us to state that, beyond geographical awareness or private
visits by a few fishermen, either State carried out any acts which might have
revealed a taking of possession, however symbolic, before the 18th century.20
Fishing was always practised by both Chinese and Annamese fishermen.
Owing to the climate (torrid heat in some seasons and formation of
cyclones), there was no trace of permanent occupation before military
logistics made the recent installation of garrisons possible.
Examination of the documents first reveals that initially, and for a long
time, there was no separate mention of two archipelagos. China and Vietnam
both appear to consider that any mention embraced all the islands in general.
A few Vietnamese documents are nevertheless detailed enough for a
distinction between the two archipelagos to be inferred. The references
produced by China are more vague in this respect.
The explanation for the long confusion is historical. The navigators of the
region, like the first western navigators (Portuguese, Spanish, Dutch),
believed there to be a single archipelago in that part of the sea. The
Europeans called it the Paracels, the Vietnamese called it Hoang Sa, and the
Chinese gave it several names. It is true that the inhospitable seas of the
reputedly dangerous zone discouraged idle forays.
In the 18th century, the French Kergariou-Locmaria expedition (1787—
1788) identified the islands more accurately, distinguishing one archipelago
which kept the name Paracels as well as 'a great number of islands which
are not shown on any chart old or new'.21 Subsequently the charts showed
the existence, 500 kilometres further south, of a vast, separate archipelago,
named the Spratlys, or Truong Sa by the Vietnamese, and Nansha by the
Chinese. It must be added that, however well the South China Sea was
Map compiled in 1808 by Daniel Rops, Lt. of the Bombay Marine (Ge 2301/17)
Map of Neptune's Eastern Realm after Mannevilette (1745, Ge DD 2987)
Map of Amsterdam, 1785 (GE D 3610)
Map of the China Sea, 1821 (GeCC2301)
Map of the Coasts of Siam and Part of the Coasts of China, 1732, compiled by Mr de la
Vignein 1712 (GeC 10431).
20
See Pierre Bernard in: Lafont (ed.) Les frontieres du Vietnam (Paris, L'Harmattan, 1989),
pp. 246 et seq.
21
Excerpt from a letter dated 28 April 1788 from Captain de Kergariou-Locmaria (frigate
Calypso), National naval archives, B.4.278. Annex 7.
58 Chapter II
known, for centuries it was so notorious for the dangerous ground in the
form of islets, banks and reefs strewn across its centre, that navigators
setting a course for Singapore or the Gulf of Thailand always hugged the
Vietnamese coast.
The result was that, inevitably, far less was known about the Spratlys than
about the Paracels, which for Chinese sailors remained the 'gateway to
Champa'. 22
The documents produced by the Chinese
The Chinese arguments are expressed either in documents published by the

Ministry of Foreign Affairs of the People's Republic of China, or in
publications originating with the Chinese Government, such as Nouvelles
sinologiques or other studies by Chinese researchers. They contain quite
general assertions such as the following:
A large quantity of historical works and documents as well as
many archaeological finds prove beyond all doubt that the
Xisha and Nansha Islands have been Chinese territories since
antiquity.23
In the case of more detailed statements, arguments pointing to knowledge
that Chinese navigators were said to have had of the existence of these
archipelagos going back a long time are mingled with assertions relating to
Chinese sovereignty.24
Geographical knowledge
In certain Chinese documents, excerpts from geographical works are quoted

as support for a Chinese title to the islands. And these islands are actually
mentioned and described, though as they are works dealing with countries
other than China, they have no value as evidence. Like all geographers in
search of universal data, the Chinese geographers and chroniclers
concentrated on meticulously describing territories, without necessarily
including them under Chinese sovereignty.
22
Marwyn S. Samuels, Contest for the South China Sea (New York, London, Methuen,
1982), pp. 23-24.
23
(1988) Nouvetles sinologiques. No. 7, 20 April 1988.
24
(1988) Nouvelles sinologiques, No. 8, reproducing a document of the Ministry of Foreign
Affairs of the People's Republic of China of 30 January 1980, entitled: 'China's Indisput-
able Sovereignty over the Xisha and Nansha Islands'.
The following works may be placed in the category of documents which

merely prove a general knowledge of the area, but are not useful to the legal
argument:
- Nan Zhou Yi Wu Zhi (Record of Strange Things of the South) by Wan
Zhen (period of the Three Kingdoms, 220-265), written under the reign of
Emperor Wudi of the Han dynasty. A travel account of a voyage in the South
China Sea, it mentions that the water is quite shallow and that there are a
great many 'magnetic stones'. This poetic term certainly denotes rocks or
sandbanks but is too imprecisely used to enable one to identify either or both
of the two archipelagos at issue today. Moreover, the Chinese themselves
admit that the islands had 'a multitude of vivid and poetic names'. Whence
the scepticism of non-Chinese authors regarding the fact that this text
allegedly relates to the Paracels and the Spratlys.25
- Fu Nan Zhuan by Kang Tai, from the same period, mentions that, in the
Sea of Shanghai, coral islands are found on a flat rocky base, with the coral
growing on top. In the September 1993 issue of the periodical Window
published in Hong Kong, a study signed Panshiying, a specialist researcher
at the Beijing Foundation for International and Strategic Studies, quotes this
very general text of Kang Tai dating from the first centuries of the Christian
Era. The author claims that it contains a description of the Spratlys. Yet the
quotation produced is not precise enough to bear this out.
- Yi Wu Zhi by Yang Fu (Eastern Han period, 25-220 A.D.) concerns
'exotic things' relating to foreign countries.
- Ling Wai dai da by Zhou Chufei (Song Dynasty, 1178), Zhu fan zhi
(Notes on Foreigners) by Zhao Ju Guo (Song Dynasty, 1225), Dao Ji Zhi
Lue (General View of the Islands) by Wang Da Yuan (Yuan Dynasty, 1349),
Dong Xi Yang Kao (Study of the Eastern and Western Seas) by Zhang Xie
(1618), Wu bei Zhi (On the Seven Voyages of Zheng He, 1405-1433, in the
southern Seas and Indian Ocean) by Mao Yuan Ji (1628), Haiguo wenjihian
lu (Things Seen and Heard in Countries Overseas) (Qing Dynasty), Hat Lu
(Notes on Sea Voyages) by Yang Brignam of the same period (1820), Haigue
tuzhi (Notes on Foreign Countries and Navigation) by Wei Yuan (1848) and
Yinghuan zhilue (Summary Geography of the Globe) by Feng Wenzhang
(1848) form a collection of works consisting of travel accounts, geographical
monographs or nautical books concerning countries foreign to China. Some
are the work of the travellers themselves or of Chinese ambassadors abroad.
Others, such as Dong Xi Yang Kao, relate 'things seen and heard', the author
explaining that he has set out to question people hailing from distant places,
25
See Marwyn S. Samuels, op. cit., p. 10
60 Chapter II
sailors or explorers, sometimes simply because he has run into them in the
harbour.
Most of these accounts refer to the islands using widely varying names,
which makes any identification uncertain. Sometimes there are a few details
of the distance from the coast. They do not always confirm that it is indeed
the Paracels which are being referred to, still less the Spratlys, which are
much further from the Chinese coasts.
For example, in Dong Xi Yang kao referred to supra, islands are
mentioned which are situated 100 li (50 kilometres) from Wenchang, which
cannot correspond geographically to the Paracels, lying as they do over 200
kilometres south-east of Hainan. The names of the islands vary in the most
whimsical fashion: Jiurulozhou, Wanlizhitang, Wanlichengsha, Qian-
lishitang, Qizhouyang, Qizhousan. So it is difficult to follow the Chinese
authors when they assert that all of these denote the Paracels or sometimes
the Spratlys (however, they themselves sometimes agree that the word
Wanlishitang denotes the four archipelagos, in other words, all the islands in
the South China Sea) or when they infer from them a Chinese title, whereas
the texts in question, such as Hai Yu by Huang Zhung, of the Ming dynasty
(1536), refer to sandbanks in the barbarian countries of the south-west,
which strongly indicates how foreign these territories are to China.
Sometimes the assertion that a particular account mentioned the Spratlys
cannot help but surprise the reader when the remark is illustrated in a note by
a quotation mentioning the Paracels and clearly identifying them as situated
at latitude 17° 10' north. This is a serious confusion.26
Uncertainty as to China's intentions
The Chinese documents or the works of certain authors on this subject

include a number of more precise references.27
This applies to the examples adduced by the Chinese as proof of an act of
sovereignty when they state that, under the Northern Song dynasty (10th to
12th centuries), military patrols were organized from Kwangtung and sailed
to the Paracels. Wu Jing Zong Yao (General Programme of Military Affairs
26
Jian Zhou, Les frontieres maritimes de la Chine (University thesis, Paris X, 1991), p, 330.
The author states: 7» 1878, Guo Songtao, first ambassador of China sent to the West, in
the account of his voyage, also mentioned the Nansha Islands (Spratlys) as belonging to
China.' There follows a footnote 18, in which the quotation produced speaks of the
Paracels and indicates their latitude, which avoids any possible confusion with the
Spratlys, but ruins the argument.
27
See, for example, Tao Cheng, 'The Dispute over the South China Sea Islands' (1975)
Texas Internationa! Law Journal, at p. 273.
prefaced by Emperor Renzong himself) reports patrols going right to the

islands. However, the quotation used is less demonstrative when it is put
back in its context, which appears to be a geographical reconnaissance ex-
pedition to the Indian Ocean rather than patrols allegedly policing Chinese
lands.
So although this confirms China's knowledge of the Paracels, it does not
show that China took possession of them.
Similarly, the fact that, in the 13th century, a Yuan emperor, himself a
passionate astronomer, ordered a renowned astronomer by the name of Guo
Shoujing to take readings, some of which were carried out in the Paracels,
does not prove anything either. Since readings were taken partly on Chinese
territory and partly outside it, the fact that some of them were made on the
islands is not sufficient to furnish proof of the Chinese territoriality of these
islands.
In their reasoning, the Chinese authors rely on a further event which
occurred in the 13th century (1293), and which is related in Yuan Shi.
According to this, an expedition led by Shi Bi embarked to attack Java.
Travelling by junk, an army of around 5,000 men sailed south, camping on
certain islands. However, the itinerary described does not allow the route,
and therefore the islands, to be clearly identified. Nor is the text relevant to
territorial control of these spaces, and provides no proof of this. And some
authors have speculated that the islands mentioned might rather be those of
Macclesfield Bank.28
The hesitations on this point can be better understood if they are seen in
the context of the maritime history of this region of the world. The preferred
shipping routes hugged the coast, allowing for stopovers, trade and contacts,
all the more so in that navigation was for a long time not reliable enough to
avoid shipwreck in the dangerous ground of the archipelagos.29
28
An example is the view taken by Groeneveldt, the translator of Shi Bi Zhuan (History
of Shi Bi), for whom Qizhou (the Seven Islands) refers to the Paracels and Wanlishitang to
Macclesfield Bank. However, Pierre Yves Manguin, in a work published by the Ecole
Francaise d'Extreme Orient (Les Portuguais sur les cotes du Vietnam et du Champa,
Paris, 1972) does not share Groeneveldt's view and believes that Qizhou refers to the
Tayas and Wanlishitang to the Paracels. On the lack of identification of islands mentioned
in these accounts of episodes dating back to the 13th century, see M.S. Samuels, op. cit.,
pp. 18-19, and his conclusions: 'Despite greatly increased contact with the seas during the
fourteenth century and despite the power of the Yuan navy, the islands of the South China
Sea were apparently not absorbed into the empire or colonized.' (p. 20).
29
This incontrovertible fact is disregarded by some authors, for example, Jianming Shen,
'International Law Rule and Historical Evidence Supporting China's Title to the South
China Sea Islands' (1997) Hasting International and Comparative Law Review, vol. 21,
number 1, at pp. 17 and 26.
62 Chapter II
The Chinese use certain archaeologists' reports to support their claim that
Pattle Island once harboured a pagoda, now destroyed, which they did not
actually see, but which is said to have been a Chinese remain. Scientific
verification of this claim is not possible.
Lastly, the Chinese documents refer to patrols at a later date, since it is
asserted that between 1710 and 1712 under the Qing dynasty, Wu Sheng
himself, Vice-Admiral of the naval forces of Kwangtung, led a patrol at sea.
The itinerary is given, together with a commentary that Qizhouyang (Sea of
the Seven Islands), which the patrol traversed, corresponded to the outer
reaches of the Paracels. However, following the itinerary claimed on the
map, it is impossible not to notice that it corresponds to a journey around
Hainan Island, not a voyage to more distant seas. The text reads: 'Departing
from Qiongya, he passed by Tong Gu and traversed Qizhouyang and Sigeng-
sha, thus covering 3,000 li.' Qiougyo is the chief town in the north of Hainan
Island (Hoihow), Tong Gu is a mountain on the north-east point of the
island, Qizhouyang designates the Taya Islands group and Sigengsha is a
sandbank to the west of Hainan.
There is nothing here to suggest maritime control over the archipelagos.
The signs required by the international law of the time are missing. As far
back as the 16th and 17th centuries, a distinction was made between
discovery during reconnaissance (discovery) and discovery with appropri-
ation (finding). On 18 December 1523, the Holy Roman Emperor Charles V
used this distinction in his instructions to Ambassador Juan de Zuniga,
recalling that a territory merely encountered en route by the King of
Portugal's ships could not be regarded as having conferred on him title to
that territory, since there was no taking of possession,30
The Chinese claims are contradicted by other sources within China itself.
There are many old geographical documents describing and delimiting the
territory of the Chinese Empire. With a fair degree of concordance, they
describe Chinese lands as ending at Hainan Island in the south.
Writings of the 12th century, then the 17th and 18th centuries appear to
confirm this, including a geographical description of the prefecture of
Quiongzhou and a geographical description of Kwangtung dated 1731, a
work submitted to the Emperor of the Qing in year 9 of the reign of the
Wengzheng (1731). The map of Kwangtung Province does not mention the
archipelagos.
30
Friedrich A.F. von der Heydte, 'Discovery, Symbolic Annexation and Virtual Effect-
iveness in International Law' (1935) American Journal of International Law, at pp. 449 et
seq.
Close scrutiny of the references produced by the Chinese certainly

reveals an awareness, far back in time, of the existence of many islands
scattered throughout the South China Sea. However, such references do not
take us any further and are not enough to substantiate the claim that China
was the first to discover, exploit, develop and administer the archipelagos.51
The old tale that in 1754 some Vietnamese sailors, who had lost their
course near the Paracels and drifted as far as the Chinese coast, were
escorted home without further protest, following an investigation by the
Chinese authorities, leads us to believe that there are no grounds for this
claim."
It is true that, desirous to expand its trade, China pursued a relatively
active maritime policy until the 15th century, through its various ruling
dynasties. Chinese works of the time may indeed mention the islands,
although they do not provide any convincing arguments supporting the
assertion of a Chinese title to sovereignty.
On the other hand, from the 15th century onwards, 'the Chinese presence
in and control over the shipping lanes of the South China Sea lapsed into
memory'. It is therefore surprising that many authors, in various
publications, have often concluded that China's ancient historical title is a
solid one. However, as has been remarked elsewhere:
The majority of these studies have been undertaken by overseas
Chinese, who were not necessarily free from bias when
selecting information for examination; the arguments of the
South Vietnamese Government have often been rejected
without close scrutiny.33
In some slightly more guarded documents the idea is put forward that, over
the course of these historical periods, China acquired merely an 'inchoate' or
incipient title. This concept is accepted in international law. However it must
be based on adequate factual grounds.
When Mexico, opposing France's claim, contended in the 19th century
that Clipperton Island had belonged to it before the expression of French
rights, the arbitrator appointed to settle the case sought in vain any right to
the island which might have been formed by Spanish navigators:
31
(1988) Nouveties sinologiques, 8, at p. 5.
32
Le Qui Don, Miscellany on the Government of the Marches, Book 2.
33
Chi Kin Lo, China's Position towards Territorial Disputes, the Case of the South China
Sea Islands (London, Routledge, 1989), p. 14.
64 Chapter II
That they [Spanish navigators] might have known it before the

log-books of the French vessels La Princesse and La
Decouverte, dated in 1711, had identified and described it is a
conjecture more or less probable, but from which one cannot
draw any decisive argument.
The arbitrator continued:
The proof of an historic right of Mexico's is not supported by
any manifestation of her sovereignty over the island.34
This is also the logical conclusion when, disregarding the verbose assertions
in many works or articles, we examine the elements put forward in support
of an ancient title with respect to China.
During that first period (which we have identified as being before the
18th century), were there any other displays of interest in the archipelagos by
other peoples?
The documents produced by the Vietnamese
These documents also confirm that the archipelagos were known far back in
time. From the 18th century onwards, this knowledge was transformed into
an actual taking of possession.
The paucity of official Vietnamese documents springs from the fact that
many were looted, burned or destroyed in the course of past wars, so that it
is barely possible to go further back.
From what is available (in references at least) it is clear that, as in the
Chinese literature, mention was made long ago of islands and archipelagos.
Maps which mention the Paracels, probably dating from the end of the 15th
century (Emperor Le Thanh Tong), are reproduced in a publication of the
Historical Research Institute (Hong Duc Ban Do, Saigon, 1962, p. 218); they
are also mentioned in the Hong Duc atlas, a work dating from the 17th
century conserved in Japan.
The first traces of the assertion of a right appear in 1776 in Phu Bien tap
luc (Miscellany on the Government of the Marches), by Le Qui Don. This
dates satisfactorily the first legal certainties of the 18th century. This work,
written by an encyclopaedist who held the post of Vice-Governor, described
the archipelagos (as lying 3 days' and 3 nights' journey away, which locates
them quite accurately) and refers to their exploitation for economic gain,
34
Arbitral Award, Clipperton Island (1932) American Journal of International Law, at
p. 390.
already well organized by the rulers of Annam. The work contains a dated
list, established after perusal of the registers kept by the rulers, of the wealth
yielded:
I have myself examined the registers of Cai doi thuyen, and
found the following:
— year Nham Ngo (1702), the Hoang Sa Company found 30
ingots of silver
— year Giap Than (1704), 5-100 measures of pewter
— year At Dan (1705), 126 ingots of silver. Between the year
Ky Sun (1709) and the year Quy Ty (1713), over a five-year
period, the Company collected several measures of tortoiseshell
and sea cucumber. Sometimes it found only a few china bowls
and two bronze cannons.35
The same author refers to known events, i.e. naval battles between the Dutch
fleet and the Nguyen navy (1643-1644). These events confirm that the rulers
of Annam had an effective navy and sought to control the seas. Can we
therefore conclude that such organized exploitation was even older than the
precise mention in the registers? It is impossible to maintain this contention,
owing to the absence of earlier evidence.
On the other hand, from the early 18th century onwards, the evidence of
Annamese administration is well established. Mr Le Fol, Chief Resident of
France in Annam, wrote to the Governor General of Indochina, on 22
January 1929, stating, 'The archipelago (Paracels) seems to have remained
res nullius until the beginning of the last century'. In the same correspond-
ence he provided information on the administration of the islands by former
dynasties from the early years of the 19th century onwards. Doubtless his
words, the words of a man carrying out his duties in the region of Vietnam
most closely concerned by the historical aspect of these issues, were based
on some knowledge of the archives. However, he did not know them
sufficiently well to date the Annamese administration with accuracy, which a
thorough examination of the archives would have allowed.36
Thus, in the context of the 18th century, it may be said that: at the time
the existence of the Paracels was generally known; China has been unable to
invoke any act of taking possession corresponding to the criteria described
above; Vietnam possesses, in the work of Le Qui Don, the first document
35
Le Qui Don, Phu-bien tap-luc. Miscellany on the Government of the Marches.
36
Annex 8.
66 Chapter II
mentioning acts corresponding to a certain administration of the archipelago,

dating from the early years of the 18th century.
In the case of the Spratlys, their existence was probably known, although
the distinction between the Spratlys and the Paracels (in the available
documents) was ill-established. There is nothing which allows us to say that
China took possession of them. The administration by the Nguyen rulers of
the Spratlys at the same time as the Paracels, from the 18th century onwards,
is a plausible hypothesis. There is no documentary evidence in this case of
any interest in the islands at that time on the part of Indonesia, Malaysia or
the Philippines.
THE AFFIRMATION OF SOVEREIGNTY (18TH TO 19TH CENTURIES)
The preceding section drew attention to the presence of a first element. It

derives from a document of 1776 (Miscellany on the Government of the
Marches) in which the author, who was then carrying out the duties of
mandarin as deputy governor of two provinces, relates, drawing on reports
from the early 18th century, that the rulers of Annam had founded the Hoang
Sa Company sailing to the islands in the second lunar month and returning in
the eighth in order to harvest the produce of the sea and gather booty from
shipwrecks.
It needs to be seen whether this indication was subsequently confirmed,
whether consequently a right opposable to other States was created in the
islands, what the scope of this right was and lastly whether competing rights
were expressed.
The Vietnamese documents of the 18th and 19th centuries
There are many of these documents, which on the whole concur, are
supported by authoritative foreign accounts and which point towards the
affirmation of a title of sovereignty.
Numerous Vietnamese maps, atlases or geographical works designate the
archipelagos as part of Vietnam, such as:
- Giap Ngo Binh Nam Do of 1774
- Dai Nam Nhat Thong Toan Do of 183 8
- Dai Nam Nhat Thong Chi of 1882.37
37
These works, indicated in the document produced in 1981 by the Ministry of Foreign
Affairs of Vietnam, may be consulted in Hanoi, at the Institut d'Histoire Nationale for
instance.
The effective administration of the archipelagos appears in various docu-

ments available in Vietnam. The most important of these are:
The Authentic Writings on Dai Nam compiled between 1821 and
1844, Dai Nam Thuc Luc Tien Bien concerning the period 1600-1775
and Dai Nam Thuc Luc Chinh Bien relating to the subsequent period;
- the geography of unified Vietnam edited from 1865 to 1882, Dai Nam
Nhat Thong Chi;
- the Dai Nam administrative repertory: Kham Dinh Dai Nam Hoi Dien
Su Le, 1843-1851;
- certain reports filed in the Ho Chi Minh City archives.
Some of these documents bear the seal of the King or comments in red ink, a
sure sign of the King's handwriting. They make it abundantly clear that the
Vietnamese emperors pursued the task of organizing (as mentioned in an
account of 1776) a maritime company whose purpose was the economic
exploitation and maritime exploration of the archipelagos. These measures
formed part of national policy with a concern for maritime interests.
Owing to the rigours of the tropical climate, the small islands were not
suitable for farming. Some of them were covered in guano, though the use of
this fertilizer did not begin until the 20th century. Chroniclers in the 19th
century report that the resources consisted of tortoiseshell, mother of pearl,
sea cucumbers and turtles, as well as articles from shipwrecks (Dai Nam
Nhat thong chi).
Early in the 18th century, the rulers of Nguyen set up government-
sponsored maritime companies. How they functioned and were organized is
described in detail in the above-mentioned work by Le Qui Don (1776).
Some of these companies specialized in harvesting produce from the sea on
islands near the coast, while for others it was collecting articles or merchand-
ise from wrecks on islands out to sea.
Le Qui Don describes these articles as muskets, swords, cannons, gold,
silver, lead, pewter, ivory, porcelain, woollen cloth, fabric, wax etc.... He
says that these companies were supposed to make out itineraries or draw up
maps for the rulers of Nguyen and precisely indicates that there were 70 men
to a company, that they were recruited in the district of Binh Son, that
volunteers were exempt from personal taxes, from fatigues and from tolls.
There was a system of punishments for professional misconduct. On the
other hand, such service could provide entitlement to a commission or to
material rewards. The tours of duty lasted from the 2nd to the 8th month of
68 Chapter II
the year, those concerned sailing in flotillas of five junks carrying six
months' supplies.38
From 1771 to 1802 the history of Vietnam was marked by dynastic
conflict.39 When the Nguyen dynasty was restored, Emperor Gia Long made
an inventory of all the lands in the kingdom. The maritime companies, then
presided over by four mandarins, were to play an important role in compiling
a register of the archipelagos. In 1815, the Emperor appointed Pham Quang
Anh commander of the brigade given the task of exploring the archipelagos
and of drawing up a map of sea routes there.
In 1816, according to certain accounts,40 Emperor Gia Long wished to
travel to the islands in person in order to take possession of them and add
'this flower to his crown', yet this information is not confirmed, perhaps
because the Emperor did not travel without a retinue consisting of thousands
of people, thus making such a journey to the islands problematic. What is
more likely is that he dispatched an official, Pham Quang Anh, in his place.
The Authentic Writings on Dai Nam (Dai Nam Thuc Luc Chinh Bien) relate
that, in 1815, and again in 1816, the King ordered the Hoang Sa Company to
travel to the islands in order to make surveys, inform him about maritime
routes and draw up maps.
In 1833, his successor, Minh Mang, gave the competent Ministry in-
structions for the erection of a temple and monument and for the planting of
a great many trees:
The trees will grow and provide greenery. Easily visible to
navigators, they will prevent many a ship from running
aground.
These instructions were reiterated in 1835, the project having been
postponed owing to the violent wind and heavy seas. The work was duly
carried out and orders were given by the King for those responsible to be
recompensed.
38
See Luu Van Loi's analysis of Miscellany on the Government of the Marches, (Phu-
Bien
tap-luc by Le Qui Don) (Hanoi, 1994, mimeographed).
39
See Nguyen K.hac Vien, Vietnam une tongue histoire (Hanoi, Editions en langue
etrangere, 1987).
40
This is the account by Monsignor Taberd in The Journal of the Asiatic Society of
Bengal
(September 1837) and that by Jean-Baptiste Chaigneau, Counsellor to Emperor Gia
Long
under the Vietnamese name of Nguyen van Thang, author of a Memoir on Cochin
China
in 1820.
In 1836, Emperor Minh Mang carried on his predecessor's plan to survey

the entire territory. More detailed instructions were given in the matter of
cartography.
Everything shall be noted and described in detail for submission
to the supreme attention of His Majesty The Emperor. As soon
as the junks reach any island or sandbank, regardless of what
kind, they shall from that point measure the length, breadth,
height, surface area and circumference of that island or sand-
bank, the depth of the surrounding waters, identify any sub-
merged sandbanks or reefs, record whether access is dangerous
or poses no problem, undertake a careful examination of the
terrain, take measurements and make a sketch.
The same year (1836), the King ordered the Commander of the Navy, Pham
Huu Nhat, to lead the fleet himself and to prepare large wooden posts to
mark the places inspected. The following inscription was to be engraved on
each post:
17th year of the reign of Minh Mang by imperial order Com-
mander of the Navy Pham Huu Nhat came here to Hoang Sa for
reconnaissance and to make topographical measurements and
leaves this post as record thereof.
In 1837, the Minister for the Interior prepared a report for the King on the
Company's expenditure. In 1838, the Mandarin of Quang Ha Province
requested the King to abolish the tax levied on the Company's ships. The
King assented. The same year, the Minister for Public Works prepared a
report for the King on the Company's activities. The Paracels are described
in it.
In 1847, under Emperor Thieu Tri, the competent Minister prepared a
report for the King on the need to postpone the Company's voyages for lack
of funds.
In 1867, 20th year of the reign of Tu Duc, a number of sailors having lost
their lives during the voyage to the archipelagos, the King conferred upon
them the title of hero.
These details are taken from Vietnamese historical documents, whose
authenticity has been acknowledged by various foreign authors. Two cases in
point are Chaigneau (Memoir on Cochin China) and Gutzlaff (1849, Journal
of the Royal Geographical Society. On the Cochin Chinese Empire). It can
therefore be argued that the Empire of Annam, as a pre-colonial State,
displayed specific interest in the archipelagos and performed acts of admin-
70 Chapter II
istration there at a time when no other State had shown any interest in them
as sovereign.41
The formation of a right to the islands and the scope of this right
The documents produced reveal governmental activity by Vietnam in the

archipelagos, a historically established fact. What now needs to be done is
carefully to define the boundaries of such activity, its date, intensity and
geographical spread.
The first authoritative text is that of Le Qui Don in 1776. He describes in
detail the exploitation of the archipelagos from 1702 onwards. Thus the
intention of sovereignty on the part of the State was certain from the early
18th century onwards.
The Vietnamese authorities state that the Hoang Sa maritime brigades
operated continuously from the first Nguyen dynasty onwards (1558-
1786).42
The Hoang Sa Maritime Company may well have been in existence
before 1702, indeed this is quite plausible. Nevertheless, information based
on verifiable historical documents goes back no earlier than the early 18th
century, and it is impossible to extrapolate with certainty.
Be this as it may, from that date onwards, there was a real intention to
assert sovereignty over the islands, since it was expressed by the type of acts
singled out in legal precedents.43
We shall not dwell on expeditions whose purpose was to compile maps
and to discover shipping routes. Such ventures are initiated by geographers
and navigators and help to promote a general, universal knowledge of a land
or maritime region (even though China claims that it ended the reconnais-
sance surveys carried out by the Germans in the islands in 1883, on the
grounds that it wished to terminate such activities, and by so doing stamp its
authority).44
Many other activities which might be characterized as conduct of a State
- forming a special maritime company, financing, profiting from, managing
and recompensing that company, deciding to erect constructions on the
41
See Dieter Heinzig, Disputed Islands in the South China Sea (Wiesbaden, Hamburg
Institute of Asian Affairs, 1976).
42
United Nations A/42/346, 2 May 1988, letter dated 2 May 1988 from the Charge
d'affaires ad interim of the Permanent Mission of Vietnam to the United Nations Organ-
ization addressed to the Secretary-General.
43
See pp. 55-56 supra the examples taken from the Minquiers and Ecrehos case.
44
Statement cited without a specific reference (1988) Nouvelles sinologiques, no. 8, at p.
76.
territories, intending them to have symbolic value such as a monument or

boundary-marker denoting sovereignty - were acts which could not be
misinterpreted. The imperial authorities of Annam carried out these various
kinds of activities on the islands. Even disregarding the personal, ceremonial
visit by Emperor Gia Long in 1816, on the grounds that it is mentioned by
French authors alone,45 there are still enough concordant, consistent facts to
bear out the assertion that, between the 18th century and the onset of the
colonial period, the Vietnamese authorities had acquired rights of sover-
eignty over the archipelagos in accordance with the rules of international law
applicable at the time.
These acts were effective, their effectiveness meeting both the require-
ments of the time and the topographical and physical conditions in the
islands, which made widespread, permanent occupation impossible. They
were seasonal acts, but that arose from the physical and climatic character-
istics of the islands. In his Arbitral Award of 28 January 1931 in the
Clipperton Island case between France and Mexico, King Victor Emmanuel
III of Italy recognized the validity of an occupation based on acts of
supervision.46
These were acts of public authorities at the highest level. They leave no
doubt as to the intention to assert sovereignty. In the absence of any
challenge whatsoever, these acts constituted what might well be called
peaceful, uninterrupted administration of the territories.
They correspond to the assertion found in the administrative register of
Dai Nam (Kham Dinh Dai nam hoi dien su le, 1843-1851):
The Hoang Sa are an integral part of our maritime territory and
are of great strategic importance.
Nevertheless, the geographical scope of the rights thus asserted must be
stated more precisely, examining the whole period from ancient times to the
French protectorate. The date of consolidation of the protectorate (1884)
coincided with the Berlin Congress, which opened a fresh chapter in the
history of international law.
The assertion of sovereignty by the Vietnamese appears to have
concerned a larger area than the Paracels alone. There are two pointers to
this. Vietnamese geographical works of the 19th century mention 130
45
See p. 68, note40.
46
Arbitral award, Clipperton Island (1935) American Journal of International Law, at
p. 390.
72 Chapter II
elevations, i.e. land standing clear of the water.47 Yet the figure of 130 does
not correspond to either archipelago alone; instead it corresponds quite
accurately to the two groups together.46 Also, Annamese records clearly
show that there were several companies with distinct geographical
destinations.
The Hoang Sa Islands lie east of Ly Island. From the port of Sa
Can, it is possible to reach them in three or four days' journey,
under a favourable wind. The islands number over 130 rocks,
lying between one day and several hours apart from each other.
At their heart stands a bank of yellow sand, stretching endless
thousands of li, commonly called van-ly-trug-sa-chan, or the
10,000-li sandbank. There is a well on this bank, with a fresh
water spring. Seabirds congregate in these places in countless
numbers. The products are many: hai-sam, doi-moi, mother-of-
pearl, large turtles, etc. Wrecks are commonly found. The
beginning of the Nguyen reign saw the formation of the Hoang
Sa Company, made up of 70 men from the village of Vinh-An.
Each year, in the third month, the company embarked to harvest
the products of the sea which it brought back to the port of Tu-
Hien in the eighth month. A Northern Sea Company was also
founded, under the same command, to collect the products of
the sea on the Kouen-Leuen Islands in the Northern Sea.
The east of the islands lies close to the prefecture of K'iong
Chow on Hainan Island, which belongs to the Chinese Empire.49
One of the companies founded in the 19th century was called Bac Hai, from
the name then given to the Spratly Islands by both the Vietnamese and the
Chinese.
These particulars strongly suggest that the emperors, minded to profit
from both archipelagos, found a way to do so by bringing under the same
command two companies with separate geographical destinations, an idea
supported by the map compiled in the 14th year of the reign of Minh Mang.50
This map shows a group of islands distinct from the coastal islands, and
47
Particularly in Phan Huy Chu, Regulations of Successive Dynasties by Subject-Matter
(Lich Trieu hien chuong loai chi), 1821, and in Dai Nam Nhat Thong, A Geographical
Description of Reunified Dai Nam, written between 1865 and 1882.
48
See list of islands, Annex 4.
49
Annamese records, text cited by P.A. Lapique.
50
Reproduced in Annex 9.
depicted with two different names, harking back to the differentiation

between the two archipelagos.
The possible expression of competing rights
A right comes into existence only if, once asserted, it is maintained under
certain conditions. So dictates the machinery of intertemporal law. Any
immediate challenge to the assertion of the right, any impediment to its
exercise, weakens the right and may call it into question.
We must therefore examine the respective attitudes of the possible rivals.
The case of China
China's situation must be studied in the light of two questions: did it, by its
own actions, acquire autonomous rights competing with those of Vietnam
during that period; did it acquire rights through those of Vietnam, under the
relation of vassalage between the two States?
a) The absence of historical Chinese titles to the islands
As seen in the preceding section, the Chinese documents fail to establish any
acquisition of sovereignty in the period prior to the early 18th century. After
that time, did any new facts establish rights for China? One of the brochures
published by China contains the following account:
Under the Qing, Guo Songtao, the Chinese Minister accredited
to Great Britain, journeyed to England in 1876 in order to take
up his post. He wrote the following passage in Shi Xi Ji Cheng
(Notes on my Official Travels to the West): "The vessel, having
covered 831 li, arrived at noon on the 24th day (of the 10th
month of the 2nd year of the reign of Guangxu), at a point
17° 30' north of the equator and 200 to 300 li south of Qiong-
Zhou. The sailors call this place the China Sea. Not far away, to
the left, lie the Paracels (the Xisha Islands) which yield sea
cucumbers, as well as coral of mediocre quality. These islands
belong to China.'
The document cited does not bear a precise date, and no reference is given.
Assuming it to be authentic, and authentically translated, it is an account of a
journey. The author was not writing in an official capacity, and even if he
was a diplomat rejoining his post in Europe, the mention in passing that the
74 Chapter II
islands belong to China, however interesting, is not an adequate foundation

for what certain authors have called a claim by China in the distant past.51
In all these documents it is noted that Chinese fishermen have visited the
islands since time immemorial.52 However, as we know (see Section I), these
were private, non-proprietary acts, which did not correspond to a taking of
possession, nor to the intention to assert sovereignty, since occupation 'by
individuals who are not acting in the name of their government but who are
pursuing their own interest does not constitute possession'.53
All the more so in that the same archipelagos were also visited by
Annamese fishermen over the same periods.
In fact, there is no trace that China ever opposed the assertion of
sovereignty by Emperor Gia Long and his successors, nor did it do so
throughout the 18th century, nor, especially, in the 19th century when the
rulers of Vietnam organized the exploitation of the islands under their
jurisdiction on a sounder administrative footing.
We even find statements in historical Chinese writings which confirm the
absence of Chinese claims in history. In Hai Luc we read:
Van ly truong Sa is a sandbank rising above the sea. Several
thousand leagues in length, it forms a rampart on the periphery
of the Kingdom of Annam.54
The conclusion which follows is:
There is no evidence here that the Ch'ing State had in any sense
absorbed the islands into the imperial domain.55
Not only did China itself therefore not carry out any act of sovereignty, but
further, by its silence, it appears to have acquiesced in the taking of
possession by the Vietnamese.
An explanation has been put forward by some historians:
51
See in particular Jeanette Greenfield, China's Practice in the Law of the Sea (Oxford,
Clarendon Press, 1992), pp. 154-155. The author quotes the Chinese texts analyzed
above, texts whose very titles are revealing (e.g. Description of the Barbarian Lands)
and
which contain a description of the islands as places foreign to China. She concludes that
there is a Chinese claim to the archipelagos.
52
Particularly Window, op. cit., p. 25.
53
Moore 5. p. 5036 (original Spanish).
54
Quoted in volume 13, folio 4, page 2 of Hai-Quoc do chi, written in the 22nd year of the
reign of Dasquang of the Thanh (1730). Reproduced in the archives of the French
Foreign Ministry. Box file AS 1840 China 797.
55
M.S. Samuels, op. cit., p. 25.
Since the far-off days of Gia Long, the only neighbours who
might have intervened in the Paracels, the Chinese, were too far
away. The occupation of Hainan was little more than nominal.
Until very recent times, the Chinese occupied only a narrow
coastal strip in the north of the island, and one or two ports on
the south coast.56
Thus it is plausible that China took no interest in the archipelagos throughout
the 19th century (moreover it was to give proof of this in the last years of the
century).
China's indifference to the archipelagos at that period is confirmed by
two documents: the Chinese Map of the Unified Empire by Hoang Chao
Yitong Yudi Zongtu published in 1894. On that map Chinese territory is
shown extending only as far as Hainan Island. Furthermore, the Chinese
geography textbook Zhongguo Dihixue Jiao Keshu, published in 1906, states
on page 241 that 'the southernmost point is the Yashou coast of Quongzhou
Island at latitude 18°13' north'.
These documents published at the end of the period under consideration
confirm that until then (late 19th century), China had voiced no clear claim
to either archipelago. This fact is attested by Chinese researchers themselves.
For example, in a thesis for a French university, Jian Zhou notes in his
chronology, for the year 1902, a 'first Chinese reconnaissance in the vicinity
oftheXisha Islands (Paracels)'.57
This reveals quite clearly that, prior to that date, there had been neither
reconnaissance nor a fortiori administration. The author contradicts himself
since in the same thesis and without citing precise references, he contends
that 'the Chinese Government under the various dynasties had adminis-
tratively annexed the islands and had placed them under the jurisdiction of
the authorities of Kwangtung Province' (p. 265).
Authors who are not content to confirm pre-established positions, but
who deliberately examine each element of the reasoning in a quest for
objectivity, are therefore led to the conclusion that China has no ancient
historic title to the Paracels and Spratlys. Such a hypothesis could be
defended only on the basis of unpublished documents in addition to all those
on which this study has been based. The only undeniable fact is the presence
of seasonal Chinese fishermen. Yet there were also fishermen from other
56
P.A. Lapique, op. cit., p. 4.
51
Zhou Jian, Les frontieres maritimes de la Chine, thesis completed under the supervision of
Professor Hubert Thierry, University of Paris X, Nanterre, p. 562.
76 Chapter II
countries. In international law this does not constitute the basis for legal
title.58
A simple affirmation of the rights of sovereignty or a manifest
intention to render the occupation effective cannot suffice.59
b) The non-existent consequences of vassalage
Did not China's suzerainty over Vietnam, however, confer rights through
Vietnam's own actions?
China's response to Vietnam's detailed arguments in favour of its
acquisition of sovereignty through acts dating back to the 18th century has
been that the Kings of Annam never acted other than on behalf of their
suzerain, the Emperor of China. Accordingly, their acts merely 'confirmed
Chinese sovereignty over islands which were not Annamese.' 60
The nature of this tie of vassalage therefore needs to be elucidated as well
as its consequences for the jurisdiction of the islands.
The Kingdom of Vietnam (Dai-Co-Viet) was founded in the 11th century
by the creation of a political power and administration independent of China,
but (prudently) acknowledging Chinese suzerainty.
This tie of vassalage is difficult to define in legal terms, as its precise
meaning is vague and has fluctuated in intensity down the ages.
Any comparison with European feudalism, a more highly structured
model and one better known to western jurists, would be rash. The tie would
appear to have consisted above all of religious allegiance accompanied by a
tribute of varying frequency.
As for the legal validity of these reports, it obviously cannot be
assessed according to the international rules of the community
of European States, with which they could scarcely be recon-
ciled, bearing in mind the two different historical epochs
involved and the gulf between European concepts and those of
Asian society.61
58
See Michael Bennett, 'The People's Republic of China and the Use of International Law
in the Spratly Islands Dispute' (1992) Stanford Journal of International Law, at pp. 434-
436.
59
Arbitral Award of 6 June 1904 by King Victor Emmanuel III of Italy, Brazil v. the
United
Kingdom, Reports of International Arbitral Awards XI, p. 21.
60
See Jean-Pierre Ferrier, op, cit., p. 180 (The author in no way endorses this Chinese
argument).
61
Huan-Lai Cho (Chinese Vice-Consul in Saigon), Les origines du con/lit franco-chinois a
propos du Tonkin jusqu 'en 1883 (Saigon, Imprimerie Albert Portail, 1938), p. 82.
The Viet dynasty needed Chinese blessing in order to gain

recognition, just as the modern State cannot do without inter-
national recognition to survive. Also, from the Chinese stand-
point, the idea of two separate nations is scarcely appropriate.
What would be more appropriate is the idea of two contiguous
worlds: the civilized and the non-civilized. The civilized world,
the Confucian one in other words, was organized around the
Emperor (whom we call the Emperor of China); to participate in
this world to which the Dai Viet belonged, since it used the
Chinese script and observed the Chinese rituals, the hallmarks
of civilization, it had no alternative but to accept vassal status
with respect to the Emperor. What this means is that this tribute
in fact concealed an extremely complex system of relations. For
China, it indicated the maximum dependence in which it could
hope to maintain the Dai Viet without provoking any reaction
against imperialism on its part. For the Dai Viet, on the
contrary, it indicated the maximum independence to which the
kingdom could aspire without provoking any imperialistic
reaction on the part of China. In either case, bearing in mind the
Confucian nature of the two countries, the tribute, in part at
least, evinced common adherence to one system of values.62
The Chinese themselves had a vague, extensive concept of it, so much so
that the 'Official Yearbook of the Chinese Government classed as vassal
States in the 19th century: Annam, Burma, Siam, Laos, Great Britain, the
Netherlands, Italy, Portugal and the Holy See!' 63
In no way is this a legal system of the kind which, in other cases, has
been characterized as 'semi-sovereignty'. The semi-sovereign State is
characterized by the fact that its international status is never complete.64 In
such cases, certain international powers are relinquished to the suzerain and
part of the vassal's sovereignty is amputated. There was nothing of this kind
in relations between Annam and China. The vassalage nominally accepted
by Annam, in the form of honorary services, never allowed China access to
the foreign relations of ancient Vietnam. The mandatory deference by the
court of Hue to the court of Peking was purely formal. It was a matter of 'a
61
Francois Joyaux, La Chine et le reglement du premier conflit d'Indochine (Geneve, 1954,
Publication de la Sorbonne, 1979), pp. 44-45.
63
Quoted by Jean-Pierre Ferrier, op. cit., pp. 180-181.
64
See on this point Nguyen-Huu-Tru, Quelques problemes de succession d'Etats concernant
le Vietnam (Brussels, Bruylant, 1976), pp. 26 (in particular note 3) and 27.
78 Chapter II
nominal, ritual and wholly moral suzerainty rather than actual suzerainty of
a political kind.' 65
Ever since the State of Vietnam was created by throwing off the Chinese
yoke, the history of Sino-Vietnamese relations has seen many Chinese
military ventures against Vietnam. When victorious, the kings of Vietnam
never failed to seek to appease their gigantic neighbour by symbolically
paying liege.
It was China's very indifference that enabled Vietnamese independence
towards it to develop during the years of French settlement (prior to the
protectorate). The Chinese argument derived from vassalage can therefore
scarcely have any legal significance.
There is a major precedent in case-law which reinforces this assertion. In
the Minquiers and Ecrehos case, in fact, views comparable to those
expressed today in relation to the archipelagos in the China Sea were put
forward. France held that it possessed original rights simply by virtue of the
fact that the Dukes of Normandy were the vassals of the Kings of France and
that the Kings of England had received the Duchy of Normandy in fee. To
this the United Kingdom objected that the title of the French Kings in respect
of Normandy was only nominal. Noting that these were uncertain and
controversial views on a remote feudal epoch, the Court found that, even if
the French Kings had had an original feudal title also in respect of the
Channel Islands, that title had lapsed in 1204, and the Court added:
Such an alleged original feudal title of the Kings of France in
respect of the Channel Islands could today produce no legal
effect, unless it had been replaced by another title valid accord-
ing to the law of the time of replacement. It is for the French
Government to establish that it was so replaced.66
The following conclusions may be drawn from this for the present case: the
vassalage of Vietnam with respect to China was certainly much more
nominal than that of the Dukes of Normandy with respect to the Kings of
France (even assuming the comparison can be made in such different
political and cultural settings); the conclusions of the Court, valid for
European feudalism, are also a fortiori valid for relations between Vietnam
and China; the vassalage of Vietnam ended on the very day of the signature
of the 1884 Treaty of French Protectorate. On that day 'the symbolic Chinese
seal, a handsome article worked in gold and silver, surmounted by a camel
65
G. Taboulet, La geste francaise en Indochine (Adrien Maisonneuve, 1956, vol. II), quoted
by Nguyen Huu Tru, op. cit., p. 27.
66
International Court of Justice, Reports, 1953 at p. 56,
couchant, a gift from the Emperor of China to Gia Long in 1803, was melted
down in the presence of Patenotre, the French plenipotentiary, during a
solemn ceremony'.67 This change was apparently greeted by Chinese
indifference. At any event, China did not express the least desire to retain
any of the rights acquired by Vietnam throughout a long history over its land
or island territory. No reservation was expressed by China at the time to this
effect.
All the conditions required for application of the dictum of the Inter-
national Court of Justice in 1953 were therefore met: the original feudal title
'could today produce no legal effect, unless it had been replaced by another
title valid according to the law of the time of replacement'.
The time of replacement is the one lasting up to the French protectorate.
At that time, as we have seen, China had not acquired any title to the archi-
pelagos according to the law of the day. Therefore nothing could have
replaced a vassalage which had disappeared after having been chiefly
symbolic.
It is impossible to divide the territory of Vietnam in this way. In losing
(feudal) control of Vietnam, China lost control over the archipelagos, that is
if it actually ever took any interest in the archipelagos, and there is no
evidence to this effect.
Lastly, it will be noted that, when China alleges vassalage in order to
claim that the rights acquired by Vietnam would revert to it, then (if the
argument of vassalage is rejected) China nevertheless acknowledges that
rights had indeed been acquired. They cannot but have been acquired by
Vietnam.
The other States in the region
Did other States (during the same period) express the intention to exercise
sovereignty?
The reply to this question needs no hesitation. None of the other States in
the region had made any claim at that time. None today seeks to found
claims upon acts which took place in the 19th century or earlier.
It should be noted that, in 1898, the treaty concluded in Paris between
Spain and the United States of America to end the war between them,
included the Philippines under American administration. There was no
mention whatever of the Spratlys.
The conclusion reached in this chapter is therefore that:
67
Nguyen Huu Tru, op. cit., p. 28, note 8.
80 Chapter II
- At the time of the signature of the Treaty of French Protectorate in

1884, Vietnam possessed a right over the archipelagos, a right unchallenged
and going back almost two centuries, in accordance with the legal system of
the time.
- This right was undoubtedly exercised over the Paracels. It remains to be
seen whether it was actually exercised over the archipelago as a whole.
There is reason to think that the Vietnamese administration also included the
Spratlys. But there is nothing specific to say that this then concerned the
whole of an archipelago covering 160,000 square kilometres, or at least
enough large islands to result, by extension, in a right over all of them. In
that case, there is an 'inchoate title', which must subsequently be consol-
idated by its holders.
At this point in the analysis, and subject to the reservations just made, we
can echo Max Huber's comment and say that there is no manifestation what-
ever of the exercise of sovereignty over the islands by China or any other
State, such as to counterbalance or cancel the manifestations of Vietnamese
sovereignty.
The problem then arises of whether or not the title was consolidated and
above all maintained in relation to the evolution of international law.
Chapter III
Subsequent Development of the Title
The turning point of 1884 is an important one for the archipelagos, marking
as it does the beginning of the period of French colonization in Vietnam and
also, coincidentally, the establishment (after the Congress of Berlin) of new
rules of international law. While at first valid in the specific context of the
Great Powers present in Berlin and relating only to African territories, the
rules extended under the effect of custom and by application in jurisprudence
to the point where they became universal. They were later followed by other
fundamental changes in the law.
Yet the period which then dawned was a tangled web of extreme
complications both as regards the general situation in the two countries
chiefly concerned (China and Vietnam), and as regards the administration
and occupation of the two archipelagos. Was the right of sovereignty over
the archipelagos, which had developed up to the 19th century in Vietnam's
favour, consolidated and maintained, or did it disappear through the simple
abandonment of these territories, or did it give way to another sovereignty
and in what circumstances?
First, we must outline the development of international law since 1884
(Section I). Then the situation in the archipelagos will be considered in
relation to the two main historical periods: the years during which the French
colonial State exercised international authority over Vietnam until 1954—
1956 (Section II), then the years when the Vietnamese people reappeared
speaking for itself, but with the many complications and contradictions of
the history of Vietnam since the end of the colonial war (Section III).
One element will be analysed in an introductory paragraph thus
dispensing with one argument relating to the Franco-Chinese Treaty of
26 June 1887, which had no bearing on sovereignty over the archipelagos.
THE FRANCO-CHINESE TREATY OF 26 JUNE 1887
Where the acquisition of sovereignty is concerned, treaty titles occupy an

important place, even though this is not necessarily decisive in all cases.
82 Chapter III
True, inter-State relations are more solid if based on a written text, each
word of which tells and to which the States have pledged themselves by their
signature and ratification.
States having acquired territories originally vacant by discovery followed
by effective administration with the intention of exercising sovereignty, have
thus traditionally sought firmly to base their rights by ensuring that they
were recognized in written conventions concluded with third and sometimes
rival States.
However, and notwithstanding the solidity of the rights recognized by
treaties, deriving from the principle of respect for an undertaking given
(pacta sunt servanda), the treaty can only be the proof and support of
effective administration. By itself it cannot make up for the lack of such
administration. Still less could it entail the attribution of sovereignty to a
State whose inactive title conflicted with an effective administration actually
exercised by another State.
This was the whole thrust of the award delivered on 4 April 1928 by
Judge Max Huber in the Island of Palmas case. The Award states, among
other things:
Moreover, even if she (i.e. Spain) had acquired a title she never
intended to abandon, it would remain to be seen whether
continuous and peaceful display of sovereignty by any other
Power at a later period might not have superseded even
conventional rights.1
What has to be investigated, therefore, is both the reality of the administra-
tion of the islands and the intention to exercise that administration as a
sovereign.
However, it is still illuminating to establish whether there was a genuine
treaty commitment with respect to these territories.
Where the archipelagos in the China Sea are concerned, no such refer-
ence is made by either of the parties with respect to the period examined in
the previous chapter.
On the other hand, when during the colonial period France expressed
interest in the Paracels and the French Government challenged China's right
to grant concessions on the archipelagos, China sought to base its claim on
various arguments. A Note dated 29 September 1932 from the Republic of
China to the French Government based itself on the Franco-Chinese
Convention of 26 June 1887, which traced the frontier between China and
1
Max Huber, Island of Palmas Award, 4 April 1928, op. cit., p. 850
Subsequent Development of the Title 83
Vietnamese territory then under French control.2 The Chinese Government

still holds to this view today. An example is a Chinese publication of 1956,
which states:
In Kwangtung, it is understood that the disputed points which
are situated to the east and north-east of Monkai, beyond the
frontier as fixed by the Delimitation Commission, are allocated
to China. The islands which are east of the Paris meridian of
105°43' east,3 that is to say the north-south line passing through
the eastern point of the island of Tcha's-Kou or Ouan-Chan (Tra
Co) which forms the boundary, are also allocated to China. The
island of Gotho [Kao Tao] and other islands west of this
meridian belong to Annam.
A Chinese author, Shao Xunxheng, bases himself on the terms of this
Convention when contending, in an article published in Renmin Ribao-
Peking No. 3 of July 1956, that the Paracels and Spratlys lying east of this
delimitation belonged to China under the same text.
The French colonial power would thus appear, by this form of words
which does not even mention the two archipelagos, to have abandoned them
three years after extending its protectorate over the whole of Vietnam. This
is an argument which is found in a number of western authors writing in
English or French.4
However, there is good reason to consider this view irrelevant. For the
Vienna Convention of 29 June 1969, which codified the rules for the
interpretation of treaties, stresses the role of good faith in the interpretation
and the need to interpret the texts in accordance with the ordinary meaning
to be given to the terms and in the light of the object and purpose of the
treaty (Article 31).
The same Convention (Article 32) authorizes recourse to the preparatory
work and to the circumstances surrounding the conclusion of a treaty where
a first interpretation leaves doubt about its meaning or leads to an absurd
result.
The object and purpose of the 1887 Treaty were the delimitation of the
frontier between Tonkin and China (indeed, this is the title of the Convention
as formulated by its authors). The Convention relates to the land territories.
Although indications of lines drawn in the sea are given in old conventions
2
See Annex 10 for this Note.
3
In other words, at longitude 108 ° 03' 13 " east of Greenwi ch.
4
See, for example, Jeannette Greenfield, op. cit., p. 155.
84 Chapter III
such as the one concluded between France and China in 1887, as well as in
others such as the 1886 Convention between France and Portugal,5 they
cannot be used in contemporary maritime delimitation negotiations other
than as pointers to be reviewed in the light of modern delimitation law.6 The
only maritime territory on which the States claimed rights was the territorial
sea. Its usual breadth was three nautical miles (the nautical mile is equivalent
to 1.8 kilometres). For some States, it had been extended to six miles. There
was neither contiguous zone, nor fisheries zone, nor continental shelf, all
these institutions dating from after World War II.
The frontier to be delimited was that between Tonkin and China. Only
this part of the present Vietnam was concerned, which France referred to as
Tonkin.
Hence, the interpretation of this text must mean that it can be seen as an
indication of the attribution of the coastal islands of the two States. As a
convention intended to settle the fate of the mainland, its additional purpose
was to determine the closest islands. In the interests of simplicity and
effectiveness, the text does not enumerate all of them. There are some very
small ones and there would be the danger of omitting one or other of them
from the attribution. The inclusion of the meridian is illuminating. Further-
more, if some new island were to be formed by the accumulation of sand or
some other geological phenomenon, it would be attributed in pursuance of
the text. This and nothing else is the meaning of the 1886 formulation.
In support of this interpretation, it is very important to note that the line
indicated has a precise starting point - the north-south line passing through
the eastern point of the island of Tcha's-Kou (Tra Co) - but has no terminal
point. This cannot be either chance or an oversight. The line has no need to
end on a point. Its useful length is a function of the existence of the coastal
islands.7
5
Note, in this connection, the somewhat analogous case between the Republic of Guinea
and the Republic of Guinea-Bissau (Arbitral Award of 14 February 1985). A treaty of
12 May 1886 was disputed. The Treaty had drawn a maritime perimeter to separate the
islands under French and those under Portuguese sovereignty. The Republic of Guinea
held this line to possess the status of a maritime boundary. The Tribunal did not endorse
this view, holding (paragraph 56 of the Award) that the object of the 1886 Convention had
been the attribution of land territories alone.
6
On the 1887 Convention and the maritime delimitation between China and Vietnam, see
J.R.V. Prescott, The Maritime Political Boundaries of the World (London, New York,
Methuen, 1985), pp. 224 et seq.
7
This is indeed the meaning given to the terms of the Convention by the French diplomats,
for whom this meridian marks only the maritime extremity of the boundary between China
and Tonkin (Foreign Affairs Note of 20 July 1933).
How could it possibly have been thought that the authors of the text had
envisaged the legal validity of this line to where it intersects the coast of
Annam? All the Vietnamese coastal islands in the region which lie south of
Hue would have become Chinese by virtue of this text... Yet this is precisely
what the Chinese authors do not scruple to defend, seeing as they do in this
Treaty the conventional basis of China's title to the Spratlys. The recognition
of China's rights therefore had no limits in the east and south-east. It can
thus quite legitimately be asked why one should stop at these coral
archipelagos? The rights conceded to China by France might thus be
extended so considerably as to border on the absurd... and prompt China to
claim a conventional title to the Philippines for instance. For are the
Philippines not islands situated east of the meridian indicated?
However, if the interpretation becomes absurd, the pointers provided by
the Vienna Convention must be followed to see whether the preparatory
work can confirm or invalidate it.
The preparatory work does indeed illustrate the concerns of the two
parties and what was at stake in their relations at the time. This was trade.
France was dominated by the concern to secure the Indochinese market (an
Indochina with delimited, and therefore controllable, land frontiers), and, in
view of European rivalries in this field, to create the most favourable
possible conditions for penetrating China.
The question of the archipelagos was not raised by either side during the
negotiations.
Subsequent events were clearly to show that the years which followed
were years of loss of interest on the part of these two countries in the
Paracels and the Spratlys. The awakening would come later, prompted by
other desires. It was then that China sought to invoke an ad hoc interpreta-
tion of the 1887 Treaty. France, however, the other contracting Party to this
Convention, strongly protested against this interpretation:
The provisions of the 1887 Treaty... had no other object but to
fix the maritime frontier between China and Tonkin in the
region of Monkai, attaching to China some territories and
islands situated east of the mouth of the River Monkai and
which were formerly under Annam. To simplify matters, the
105°43' Paris meridian was chosen as the demarcation line.
However, the text of the agreement clearly shows that the clause
at issue specifically refers to the Monkai region. To seek to
apply it to the Paracels, which are situated almost 300 nautical
miles south-east, would amount to saying that everything east of
the 105°43' meridian belongs to China. China could therefore
86 Chapter III
lay claim to most of the coastal islands of Indochina, Poulo

Cecir among them! The absurd consequences of such an
argument clearly show that only local scope and significance
should be given to the clause in the 1887 Convention.8
Meanwhile, international law relating to the attribution of territories has
evolved. It has become exacting and more technical.
APPLICABLE LAW AFTER 1884
The late 19th century, a period of intense international relations, was also a
period of many changes which gradually refrained international law.
The rights of the various parties are evaluated on the basis of four
concepts. These are: the fresh requirements of international law with regard
to consolidating and maintaining title to territory (1884-1885); the concept
of State succession with the need to identify the predecessor and successor
State in each case, and its extensions in the form of the principles of the
protection of territorial integrity and of the right of peoples to self-
determination; the prohibition of the use of force and of the acquisition of
territory by force; the notion of the critical date when weighing up
international disputes, especially territorial disputes, and the need to identify
the moment of crystallization, after which the acts of States can no longer be
taken into account for the construction of a right, because such acts are
carried out with the intention of belatedly displaying their authority.
The rules governing rights to a territory in the late 19th century

and thereafter
Like any other treaty, the Berlin General Act of 1885 which divided up the
African territories, was relative in character. It bound only the States parties
and was valid only in respect of the territories under negotiation.
Yet, because it was the expression of the new social requirement, its
content rapidly became universal in scope.
The acquisition of title (which could have taken place under the less
stringent requirements of the previous era) then had to be consolidated under
the new, stricter conditions. The right was maintained only if such conditions
were complied with.
8
Note from Paris of 10 October 1937. On the same lines, see Note by Mr Chargueraud-
Hartmann for the Under-Directorate for Asia of 16 August 1933.
In order to examine whether or not this process of consolidated acquisi-

tion of sovereignty took place, we shall endeavour to identify the mani-
festations of sovereignty of the claimant State, and of its supposed rivals.
The party which claims title must be able to prove that it exercised that
title through regular acts of the State, covering the entire territory concerned
inasmuch as physical conditions allowed, these acts corresponding to
permanent, uninterrupted possession and peaceful administration. Where this
is lacking, international tribunals consider that there is insufficient evidence
of the government's intention to act as sovereign, since in that case:
Those acts [are not] of such a character that they can be
considered as involving a manifestation of State authority in
respect of the islets.9
The machinery of consolidation is therefore very important.
The method followed by the Court (particularly in the
Minquiers and Ecrehos case) consists in acknowledging the
territorial sovereignty of the State which is able to prove a long,
well-established usage, reflecting a set of interests or relations
attaching the territory to the State.10
Consolidation and maintenance of title over the centuries are linked to
acquiescence on the part of other States." Such acquiescence may be active
but it may also be passive.
Consolidation may apply to territories where it is not possible to
establish whether they used to belong to another State, it may be
achieved not only through acquiescence per se but more easily
through a sufficiently long period of absence of opposition on
the part of States which might be interested in disputing
possession.12
The silence of third parties is important in the case of an original occupation,
when a State is the first to administer unclaimed territory, and continues to
do so for many years without any challenge from third parties.
9
International Court of Justice, Minquiers and Ecrehos case, Reports 1953, at p. 71.
10
Suzanne Bastid, Les problemes territoriaux dans la jurisprudence de la C.I.J. (1962)
Recueil des Cours de l'Academie de Droil International. II, vol. 107, at p. 441.
11
See Jean Barale, 'L'acquiescement dans la jurisprudence internationale' (1965) Annuaire
Francais de Droit International, at pp. 389 et seq.
12
Suzanne Bastid, op. cit., p. 441.
88 Chapter III
It is even more important when third parties claim that the original title
was invalid because the territory was not terra nullius, other rights having
already been established. If it can provide evidence of a long period of
continuous, peaceful, public administration, in which the previous occupying
State showed no interest, the current occupying State is then in a position of
acquisitive prescription. In such a case, the judges or arbitrators scrutinize
most carefully the attitude of the States claiming to hold the true, original
title. Their silence implies acquiescence; conversely protest preserves their
rights. For 'a sovereignty which is challenged must react, on pain of forfeit-
ure',13 there being no 'customary rule attributing to effective possession
atone the capacity to shift the existing title to sovereignty'.14 Thus non-
recognition may impede the validation of a de facto situation.15 However,
such non-recognition must be periodically renewed and must reflect a
genuine will to oppose the actual situation. It therefore requires a certain
degree of intensity.
Such are the rules shaped by the greater demands of relations between
societies and the increasing rarity of undiscovered territory, and also by the
exacerbation of political rivalries between States.
All we would need to do is verify their application to the situation of the
archipelagos, were it not for the fact that the vicissitudes of history
introduced other concepts whose legal content must be determined before we
proceed.
Notion of State or government succession and its consequences
The issue of the international status of the archipelagos in the China Sea is
greatly complicated on all sides by problems of State or government succes-
sion.16
13
Jean-Pierre Cot, Chronique de jurisprudence Internationale, Affaire du Temple de Preah
Vihear (1962) Annuaire Francais de Droit International, at pp. 389 et seq.
14
Marcelo G. Cohen, Possession contestee et souverainete territoriale, Publications de
l'Institut Universitaire des Hautes Etudes Internationales (Geneva, PUF, 1997), p. 492.
15
Gerard Cohen-Jonathan, Les iles Falkland (Malouines) (1972) Annuaire Francais de
Droit International, at p. 240.
16
For an outline of these difficulties, see the note by the Foreign Ministry's legal adviser
dated 25 May 1950, Annex II. It must be noted that the legal analyses favouring the
Chinese position rarely take account of the various State successions, inter alia Jian
Zhou,
op. cit.
The case of Vietnam
On the Vietnamese side, 120 years were to elapse between the pre-colonial
Empire of Annam and a sovereign, reunified Vietnam (the shelling of the
port of Tourane in 1856 marked the start of the colonial conquest).
In the initial, somewhat uncertain period (lasting approximately until the
nomination of Paul Doumer as Governor General in 1897), the Empire of
Annam retained a degree of international personality through the system of
the protectorate. Under the first Treaty (15 March 1874), the Emperor
simultaneously promised 'to align his foreign policy on that of France and to
change nothing in his current diplomatic relations' (Article 3, paragraph 1)
and retained the power to conclude treaties under certain conditions, albeit
restrictive conditions under French control.
On 6 June 1884 a second Treaty of Protectorate, known as the Patenotre
Treaty, came into force, giving France more swingeing powers. 'France
shall represent Annam in all its external relations' (Article 1, paragraph 2).
The personality of Annam, a highly fictitious one, was nevertheless
preserved.
Its gradual incorporation into the Indochinese Union began with the
decree of 17 October 1887. Its attachment to the Ministry of the Colonies
was effective from 1894 onwards.
Therefore a first instance of State succession did take place, this being
understood as * the fact of the replacement of one State by another ... with
respect to a given territory'" ... and a given time.
The status of French colony left no room for an international legal
personality, and the personality of France effectively replaced that of the
Empire of Annam. The Patenotre Treaty had not been formally abolished,
yet from 1885 onwards the situation was, de facto, a colonial one.1*
The renaissance of the unified Vietnamese State was long and painful.
Although colonial France spoke for Vietnam from the time of the pro-
tectorate until the Japanese overran the French troops in Indochina on 9 May
1945, between 1945 and 1975 many voices were raised on its behalf.
A first declaration of independence was made by Emperor Bao Dai on
11 March 1945. However, on 19 August 1945 the Emperor abdicated in
17
Sir Humphrey Waldock (1968) Yearbook of the International Law Commission, vol. II,
at p. 91. Quoted by Michel Virally in the preface to the work by Nguyen Huu Tru.
18
See on this subject Nguyen Huu Tru, op. cit., pp. 44-50. The author bases his reasoning
on some scholarly opinion and on judgments in French administrative jurisprudence
which recognized the inclusion of Annam and Cambodia in a legal entity of French public
law.
90 Chapter III
favour of the Revolutionary Government of Ho Chi Minh. The

Revolutionary Government, which controlled Tonkin and Annam,19
proclaimed both independence and the creation of the Democratic Republic
of Vietnam on 2 September 1945.20
France found itself in a cleft stick: on the one hand, under the Agreement
of 6 March 1946, it recognized 'the Republic of Vietnam as a free State
having its own government, army and finances, and forming part of the
Indochinese Federation and the French Union' (Article 1); on the other it
was endeavouring to reassert its sovereignty over Indochina and more
precisely to obtain the withdrawal of Chinese troops from Vietnamese
territory.
The issue of the international status of the Republic of Vietnam was the
spark which ignited the armed colonial conflict. At the time France still
considered itself to have sovereignty over Indochina, whereas Vietnam
intended to make full use of its international personality.
From late 1946 onwards, therefore, competing claims to exercise acts of
sovereignty emerged. Under such conditions, which country validly repres-
ented Vietnam in international law between 1946 and 1949?
Changing its strategy and banking on division, on 27 June 1947 France
set up a Provisional Central Government of Vietnam in Saigon, recognizing
its independence in the Along Bay Declaration of 5 June 1948.
The Agreements of 8 March 1949 created an Associated State of
Vietnam. Thenceforth, with the agreement of France (although not without
further hesitation), the Associated State of Vietnam had an international
personality.21 Through a process of tortuous legal manoeuvres, France
adopted a position under which Cochin China was incorporated into this
State, which was then considered to be the successor to the Empire of
Annam, formerly a protectorate.
This legal procedure counted for little. From 1949 to 1954, effective
government was shared between: the French Expeditionary Force, which
was still present along with political advisers; the Viet Minh Government,
which controlled a large part of Tonkin and Annam and was internationally
recognized by certain States from 1950 onwards; the Government of the
Associated State, which controlled Cochin China alone.
19
But which had had neither the time nor the means to impose its authority on Cochin
China.
20
See Chronology, supra, p. 34.
21
See Nguyen Huu Tru, op. cit., pp. 72 et seq.
Which country, therefore, was entitled to carry out international acts in

the archipelagos? What was the value of such acts for the governments of
later periods?
From 1954 onwards, under the Geneva Agreements, France recognized
the full independence and sovereignty of the State of Vietnam. At the same
time, the armistice agreements between the two high commands were
concluded.
The Vietnamese military command represented the Democratic Republic
of Vietnam, its French partner represented France alone, not the State of
Vietnam, which rejected the Agreements.
So a further phase in the history of Vietnam commenced, one in which
two States co-existed de facto, at war with each other, each claiming with
different diplomatic support to represent the Vietnamese nation, and each
having de facto only partial control over the territory and the population.
How should the acts concerning the archipelagos carried out by either
State during this period be evaluated?
The case of China
Thouh not as complex, China's case also presents some interesting dif-
ficulties in terms of State succession.
The first arises from the fact that some of the instruments issued by China
on the archipelagos (especially in 1921) were issued by a local government
which was recognized neither by the Central Government of China nor by
the European powers.
How far could the Central Government subsequently rely on these acts?
Moreover, is it possible to interpret the relations of power within China,
particularly the rules for attributing international powers, on the basis of
categories shaped by western political and legal culture?
From 1949 onwards a second issue of State succession arose: should the
People's Republic of China or Nationalist China succeed to the claims to the
archipelagos formerly made by China?
International law on State succession is somewhat vague, providing only
ill-defined solutions. It gives no precise guidance on how to identify the
successor and predecessor States (or Governments) when there are several
contenders. That is an issue settled bilaterally through the procedure of
recognition. Confronted with several contenders, each member State of the
international community is free to recognize the State or government it
chooses.
92 Chapter III
The content of the rules of State succession
This content is itself equivocal, since practice is so diversified.22

Nonetheless, contemporary international law has formulated and refined
some recent principles which may be useful in seeking a solution to the
dispute over the archipelagos.
First, the status of territories has an objective character in international
law. Status remains valid not only for the signatories to a treaty (when status
derives from a treaty) or for the parties directly concerned, but for all parties.
Second, there is the protection afforded to the right of self-determination
of peoples under contemporary international law. It was written into the
purposes of the Charter, in Article 1, paragraph 2, and has been echoed in
many subsequent texts which have sought to flesh out all its consequences.
Thus, resolution 1514 of 1960 entitled Declaration on the Granting of
Independence to Colonial Countries and Peoples states:
All armed action or repressive measures of all kinds directed
against dependent peoples shall cease in order to enable them to
exercise peacefully and freely their right to complete independ-
ence, and the integrity of their national territory shall be
respected (paragraph 4)
and also:
Any attempt aimed at the partial or total disruption of the
national unity and the territorial integrity of a country is in-
compatible with the purposes and principles of the Charter of
the United Nations (paragraph 6).
Similarly, resolution 2625 of 1970 entitled Declaration on Principles of
International Law concerning Friendly Relations and Co-operation among
States in accordance with the Charter of the United Nations, having recalled
the principle of the right of peoples to self-determination, states:
The territory of a colony or other Non-Self-Goveming Territory
has, under the Charter, a status separate and distinct from the
territory of the State administering it; and such separate and
distinct status under the Charter shall exist until the people of
the colony or Non-Self-Governing Territory have exercised
22
There are two Vienna Conventions, one on the Succession of States in respect of Treaties
(1978), the other on the Succession of States in respect of Matters other than Treaties
(1983); neither has yet come into force, owing to an insufficient number of ratifications.
their right of self-determination in accordance with the Charter,

and particularly its purposes and principles
and further:
Every State shall refrain from any action aimed at the partial or
total disruption of the national unity and territorial integrity of
any other State or country.
Taken together, these texts show how contemporary international law, the
law of decolonization, has developed protective principles designed to
prevent decolonized peoples, emerging from a long colonial period, from
losing some of their territory, whether by accident or by design on the part of
the colonial power. Thus any weakening of the effectiveness of the adminis-
tration of a territory cannot lead to a situation of res derelicta, if it can be
ascribed to the policy of the colonial power.
Principle of the prohibition of the acquisition of territories by force
Traditional international law had made conquest an attribute of sovereignty.

Admittedly, not quite as baldly as this, since the distinction between just
wars and... others had been introduced into the debate on sovereignty from
the very outset. After the upheaval of World War I, the League of Nations
Covenant prohibited wars of aggression, then, on 26 August 1928, the
Briand-Kellogg Pact sought to outlaw war through the voluntary renuncia-
tion of the signatory States. With Article 2, paragraph 4, of the United
Nations Charter, prohibition of the use of force assumed the value of a legal
principle applying to all States.
The principle formulated in 1945 was developed and reinforced in
Resolution 26/25 (1970).
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 same text also stipulates that:
Every State has the duty to refrain from the threat or use of
force to violate the existing international boundaries of another
State or as a means of solving international disputes, including
territorial disputes and problems concerning frontiers of States.
94 Chapter III
Hence, the politics of the cannon can no longer have any legal effects. The
use of force cannot form the basis of law.
Notion of the critical date and the moment of crystallization of the dispute
International disputes over territories are often extremely protracted. The

notion of the critical date is introduced into the discussion for the sake of
clarifying it. And yet one should not expect more from this notion than it is
able to provide. Neither scholarly opinion nor case-law has truly defined
what should be understood by the critical date, or its actual effects. While
many authors concur that it signifies the date after which the acts of States
can no longer modify their respective laws,23 the idea of the crystallization of
the dispute nevertheless introduces confusion. Crystallization would be the
result of an impasse, the Parties having declined to negotiate, protest or
endeavour to persuade one another.
The notion of the critical date has been played down somewhat both by
the case-law and by authors.
in the Minquiers and Ecrehos case, the disagreement between France and
the United Kingdom on the critical date spanned more than a century (for
France it was 1839 and for the United Kingdom it was 1956).
The Court accepts the idea of the crystallization of a dispute, the evidence
subsequently established no longer having any effect. The critical date is
fixed as the moment a formal claim is expressed. However, it does not
decline to consider events subsequent to that date as the manifestation of a
continued development and 'unless the measure in question was taken with a
view to improving the legal position of the Party concerned'.24
In the Eastern Greenland case, the Court opted for a critical date of
10 July 1931, the day Norway occupied the disputed territory. Denmark,
claiming already at that time to have a long-established title, had to prove the
validity of the title on that date.25
Hence, the view expressed by A.G. Roche in 1959 is still valid and likely
to remain so:26
In brief the Court left itself considerable discretion as far as
future cases are concerned, since the rules applied are only
23
See Jean-Pierre Ferrier, op. cit., pp, 187 et seq.
24
International Court of Justice, Reports, 1953, at p. 59.
25
Case concerning the Legal Status of Eastern Greenland, Permanent Court of
International
Justice, 5 April 1933, Reports, Series A/B, at p. 45.
26
A.G. Roche, The Minquiers and Ecrehos Case (Geneva, Thesis No. 115, 1959), p. 104.
prima facie rules which may be displaced by the Parties and are
anyway not well enough rooted in judicial procedure as to be
virtually binding on the Court; it is therefore impossible to
predict what exactly will be the attitude adopted by the Court in
any future cases.
In reality, from this angle, every dispute is unique, some developing very
gradually, while others are periodically active and then dormant, as well as
sometimes experiencing decisive accelerations.
Some authors have ventured an opinion on the critical date in the dispute
over the archipelagos in the South China Sea.
Choon-ho Park sees the start of the dispute as going back to the 1880s,
which in his view saw the beginning of a genuine dispute about control over
the islands. And he invokes the 1887 frontier delimitation Treaty as the point
when the conflict started to accelerate.27 It is hard to endorse this view. The
Franco-Chinese Treaty of 1887 does not deal with the archipelagos and
could therefore have no legal consequences for their status, even indirectly.
If the 1880s are pivotal to this conflict, it is for another reason already
explained. At that time, the Vietnamese title was real and effective. It was
not challenged by China either on the ground or at the diplomatic level.
These are the years when Vietnam changed hands following the reinforced
Protectorate of 1884. The ignorance or negligence of the colonial power, if
exploited by a rival State turning this situation to advantage, could not lead
to the creation of rights in respect of that rival State.
It is for this reason, not for the reasons given by Mr Choon-ho Park, that
the 1880s were pivotal years in this dispute. Of particular relevance at this
point is the reasoning of Judge Max Huber when he wrote:
It is not necessary that the display of sovereignty should be
established as having begun at a precise epoch; it suffices that it
had existed at the critical period preceding the year 1898.28
As regards the contemporary conflict over the Paracels and Spratlys, in the
absence of the expression of the Chinese claims in the 18th and 19th
centuries, it is crucial to the argument that the exercise of Vietnamese
sovereignty was not opposed for a very long period.
27
Choon-ho Park, 'The South China Sea Disputes' (1978) 5 Ocean Development and Inter-
national Law, 1 at p. 33.
28
Arbitral Award of 4 April 1928 between the United States of America and the Netherlands
in the dispute concerning sovereignty over the Island of Palmas, 2 RIAA (1929) at p. 867.
96 Chapter III
Kriangsak Kittichaisaree however distances himself considerably from

the notion of the critical date, though he also acknowledges that the rival
claims did not really emerge until after the 1880s.29
And Jean-Pierre Ferrier - noting that judges or arbitrators never defined
the question of the critical date when this was put to them, nor offered any
criterion - recognizes the importance of the year 1937 (which marked the
effective French occupation, but also the proposal made by France for a
judicial or arbitral settlement of the dispute over the archipelagos).
However, he regards the date of 1954, the date of the end of the French
presence in Vietnam, as the most likely one to symbolize the crystallization
of the dispute.30
Without making too much of the notion of the critical date, it is important
to remember that this question is linked to that of the legal nature of the
dispute. Contrary to what is often asserted, the dispute does not concern the
legitimacy of the acquisition of a territory by a State having embarked on the
acquisition of a res nullius. Nor is it a matter of rivalry between two States
making comparable claims, whose respective legal weight would have to be
evaluated. More simply, there is a well-established title, the title of the rulers
of Vietnam peacefully exercised for decades, which needs to be examined in
order to establish whether it may have been lost in favour of the acquisitive
prescription by another legal subject.31
We must utilize these various legal tools here in order to examine what
has become of the rights asserted by the various Parties during first the
colonial and then the post-colonial era.
THE FATE OF THE ARCHIPELAGOS DURING THE COLONIAL PERIOD
The fate of Vietnam's title, which had been solidly established during the
18th and 19th centuries, was to become linked to subsequent political events.
The Vietnamese dynasty, weakened by conquest and by the speed with
which France trans formed a protectorate into a virtual colony, voiced its
claims to the islands in muted tones. However, it did voice them whenever it
had an opportunity to do so.
At the outset, France showed little interest in the archipelagos. It was not
absent from them, but did not initially consider them to be an integral part of
29
Kriangsak Kittichaisaree, op. cit., p. 142.
30
Jean-Pierre Ferrier, op. cit., pp. 189 el seq.
31
See Sir Gerald Fitzmaurice, 'The Law and Procedure of the International Court of
Justice'
(1955) 6 British Yearbook of International Law at pp. 30 et seq.
Vietnamese territory. It let matters drift, and when China's claims became
insistent, it dithered, procrastinated and hesitated. In the closing years of the
19th century, and the early years of the 20th century, China was not in the
least interested in these unprepossessing islands. It even disowned them.
Then Japan entered the scene as a rising power. China was the first to realize
the threat. Several years later, France made up its mind and voiced its claim
in unequivocal terms. It exercised sovereignty. In the meantime, it had
learned of the long history of the Vietnamese maritime companies operating
in the archipelagos and was in a position to pose as successor. It did so
selectively. Its knowledge of the historical facts was approximate. Lacking
sufficient information, it thought in terms of State succession for the Paracels
alone. For the Spratlys, it preferred to rely on the status of terra nullius,
claiming original rights of acquisition.
From 1909 onwards, protest and the absence of protest criss-crossed in an
intricate pattern. Nothing remained that was peaceful or spontaneous.
Everything was dictated by the ulterior motive of outflanking rivals and
accumulating evidence. Salvoes of discovery rang out over the islands. In the
Paracels, they were sometimes Chinese and sometimes French. Later, in the
Spratlys, they were French, but also Filipino or Taiwanese.
The colonial period was followed by the painful Japanese episode. The
islands were a prize of war, coming under the control of the Japanese Navy.
The departure of the Japanese corresponded to a period marked by the quest
for independence, and another era was born.
The actions of China, and those of France until it left the region, will be
examined in turn infra.
It will also be necessary to consider the attitude of the United Kingdom
(which had shown interest in certain islets in the Spratlys), and naturally that
of Japan as well.
In the course of these twists and turns, there is no doubt that the title
acquired by the Vietnam of old was weakened and challenged. Our examina-
tion will focus on its possible loss, or continued existence. World War II,
however, constitutes too great a rift to be disregarded. The acts of the various
States cited will therefore be examined both in the pre-war period then in the
immediate post-war period.
98 Chapter III
From the French colonization of Indochina to World War II
The policy of China
a) Lack of interest on China's part

Between 1884 and 1909 there was no hint that China had any interest in
these slivers of land. Quite the reverse.
Only one incident is related by historians. It appears to bolster the thesis
of Chinese acquiescence in the occupation of the islands by other countries.
It was described by P.A. Lapique:
Two of the many shipwrecks in the Paracels caused disputes
which deserve mention, that of the German vessel Bellona on
North Reef in 1895 and that of the Japanese vessel Imezi Maru
in the Amphitrites in 1896.
Both vessels were carrying a cargo of copper insured with
British companies. It proved impossible to salvage the cargo
and the wrecks were abandoned. Chinese sailors in sampans or
small junks looted the wrecks and landed the copper at Hainan.
The insurance companies then requested the intervention of the
Minister of Great Britain in Peking and their Consul in Hoihow,
who sought to hold the local mandarins responsible.
The mandarins protested, stating that the Paracels did not
belong to China, were not administratively attached to any
district of Hainan, and they denied liability.32
This incident is also reported in a Note of 6 May 1921 from the Government
General of Indochina (Directorate of Political and Indigenous Affairs). The
text is more specific, reading as follows:
The mandarins protested, claiming that the Paracels were aban-
doned islands which belonged to China no more than to Annam,
that they were not administratively attached to any district of
Hainan and that no special authority was responsible for
policing them.33
Both versions clearly state that the authorities at local level firmly rejected
any idea of Chinese sovereignty over the islands. This view is of consider-
able significance. They were local authorities and therefore in the best
32
P.A. Lapique, op. cit., p. 4.
33
See Annex 12.
position to know the true situation. They stated that the islands had not been
administratively incorporated, thus providing evidence of the absence of
administration.
Nevertheless, according to the Government General's Note, the man-
darins also stated that the islands did not belong to Armam. It cannot there-
fore be inferred from these incidents that the Chinese authorities acquiesced
in any way whatsoever in Vietnamese administration. On their part there was
no more than ignorance of the fate of the archipelagos and lack of interest in
them.
The contention echoed by most Chinese documents that Germany became
interested in the islands in 1883 and ceased all activity in the vicinity only at
China's insistence is contradicted by the attitude of the mandarins related in
the documents cited and is not based on verifiable references.34
b) Reversal of China's attitude
The Chinese action described infra indicates a complete change of tack. It
dates from 1909. Alerted by the fact that in 1907 the Japanese had laid their
claim to the Pratas (another archipelago lying north-east of the Paracels), the
Chinese wished to outflank any Japanese claim to the Paracels and initially
contrived a reconnaissance mission to the islands.35
The Viceroy of the Two Kwangs sent three officers on an exploratory
expedition (in April 1909). They brought back a descriptive report on the
islands, which is evidence of the lack of knowledge then prevailing in China.
It was a true journey of discovery for the Chinese. They noted traces of the
passage of foreigners at various times in history. On reading the report, the
Viceroy then planned a more systematic exploration. To this end, he bor-
rowed the cruiser Yuen K'ai from his colleague the Viceroy of Min Chen
and, as the Consul of France reported, 'Admiral Li was requested to provide
the explorers with all possible assistance'. Hence a fresh Chinese expedition
left Hong Kong on 21 May 1909; it returned to Canton on 9 June, somewhat
disillusioned. Nonetheless, the expedition had raised the Chinese flag on the
islands and had displayed China's sovereignty. The Cantonese authorities
then planned to develop local trade in the Paracels. This account confirms
that the Chinese had sketchy knowledge of the archipelagos at that time,
since the first expedition was exploratory, and also the fact that they had not
been convinced of their rights to the islands, since they asserted these rights
by means of symbolic acts.
34
See Jian Zhou, op. cil., p. 268 and Nouvelles sinologiques.
35
Note dated 4 May 1909 from the Consul of France in Canton. See Annex 13.
100 Chapter III
The Chinese documents give a different version of the facts.36 They speak
of a tour of inspection, as if the islands were well known. To justify raising
the flag and firing a salvo (which are recognized facts), they state that this
reasserted China's sovereignty, the reiteration implied in the prefix 're'
evoking the idea that the same ceremony had taken place before, with no
mention of where, when, or how. There is disagreement as to the duration of
Admiral Li's voyage, which some authors claim lasted one month.37
P.A. Lapique, then living in Hong Kong, gave his own interpretation of
the events of 1909 in the following words:
As for the Paracels, I have some personal memories dating back
20 years or so. Late in 1908, being then resident in Hong Kong,
I was approached by some Cantonese friends who were
planning an expedition to the Paracels. The idea was to verify
various assertions that the islands were covered in guano and
that whole cargoes of pearl oysters were there for the picking
around the reefs. Apparently what interested them more than
my ability as a sailor to reach the islands was the fact that I was
French. Although sorely tempted by this adventure, I was
unable to take part, the Company which employed me having
decided otherwise, sending me to the frontiers of Tibet at the
time of the projected excursion to the Paracels.
Nonetheless, I was aware of some of what transpired. An
expedition to the Paracels did take place in May-June 1909, but
was more in the nature of a private venture. It might not even
have had any link with the original project.
At that time the emotion aroused in China by the Japanese
claims to the Pratas had not subsided. The officials doubtless
sought to regain face by organizing an expedition to the
Paracels, or by mounting a show of annexation. For whatever
reason, an expedition did take place, and is worth mention. In
late May 1909, two small Cantonese gunboats set sail, with two
Germans from the Carlowitz Company on board, as well as
Chinese sailors including an admiral. The latter was a 'river'
admiral, so it would seem, for although the little fleet,
advancing in the lee of the land, quite easily reached the port of
Yu-Lin-Kan at the south end of Hainan, it tarried there at least a
fortnight, doubtless waiting, before tackling the ocean, for the
36
Nouvelles Sinologiques, no. 8, at p. 17.
37
Jian Zhou, op. cit., p. 277. In a similar vein, M.S. Samuels, op. cit., pp. 53-54.
'Fong Sani' to be favourable and not afflict the bold navigators

with seasickness. On 6 June (the nineteenth day of the moon)
the expedition sighted one of the Paracel islands, and visited
some of them. On 7 June, at 4 in the morning, both gunboats
returned to Canton by the direct route, as the 'Kouo Che Pad"
(the main newspaper of Canton) informed its readers in an
article dated 20 June 1909.
The author continued in ironic vein:
It would seem that the French administration, were it even
informed, was not overly concerned by this display. Yet it
would have done well to study the expedition attentively, not
least for the purpose of teaching our Navy's hydrographic
service the techniques which allowed the Paracels to be ex-
plored and a general map produced within the space of 36
hours, together with a further 15 special maps of the same
islands and 10 photographs, not to mention a study for two
commercial ports and a bridge to link two of the islands!!!
P.A. Lapique added that nothing further happened until 1920, save for the
passage of cruisers belonging to the Indochinese customs service, which
occasionally visited the various islands and archipelagos; nothing which
corresponded to an administration of the islands.
c) Confirmation of the Chinese intention to act as sovereign of the islands
A further manifestation of the Chinese intention to attempt to recover the
islands occurred in 1921.
By an 'order' dated 30 March 1921, the civilian Governor of Kwangtung
incorporated the Paracels into the sub-prefecture of Yai Hien (Hainan). This
was done in the name of the military government controlling the south,
which doubtless explains why the central Chinese Government, even today,
does not rely upon it.
The Legation of France in China became concerned, but did not lodge
any official protest, to avoid 'stirring up Chinese nationalism '. It decided to
ignore the order, since it was issued by a government which was recognized
neither by the central Government of China nor by foreign States.
However, this administrative incorporation was not totally devoid of
practical consequences. Correspondence between Mr Beauvais, Consul of
France in Canton, and the French Foreign Minister clearly revealed that
France followed with interest the trading concession awarded by the Govern-
ment of Kwangtung, in 1921, to a Chinese merchant named Ho Jui-Nien.
102 Chapter III
The French Government kept a particularly close eye on the matter

because some Chinese newspapers attacked the merchant, claiming that he
was no more than a figurehead for Japanese interests, and demanding that
the concession be revoked.38
Some Chinese authors state that China subsequently continued to award
licences to mine or otherwise exploit the islands, even doing so via a
national company.39
d) Renewed Chinese interest in the Paracels (1928)
It was from 1928 onwards that Chinese interest in the Paracels again became
active. A commission was set up, which inspected the Paracels and sub-
mitted documents. The documents were summarized in a report reasserting
the Chinese claims to the islands and presenting ambitious projects to exploit
them. However, probably as a result of the Chinese domestic situation, the
projects came to naught, all the more so in that other interests showed their
hand. In March 1932, the Chinese put the rights to mine guano in the
Paracels up for public auction in Canton. This prompted a protest by France,
which handed China a previously prepared Note in which the French
Government asserted its rights and offered to take the matter to arbitration,
should China not recognize these rights. China then based its claim on the
fact that Vietnam had been its vassal before the colonial period.
The situation on the eve of World War II was as follows: the Chinese acts
of 1895-1896 (refusal to accept liability for shipwrecks in the Paracels on
the grounds that the islands were not attached to China), and 1909
(exploration and salvoes fired to proclaim sovereignty) weakened all the
other assertions that the Chinese occupation had lasted thousands of years,
since time immemorial; they dated Chinese interest in the territories as being
recent. The acts of 1909, plus a few concessions and an apparently symbolic
administrative attachment, marked an interest which did indeed exist but
these acts were not sufficient to constitute a long, effective, peaceful,
continuous occupation. They were carried out by a government which had
no place in the continuity of the Chinese State. Therefore China did not fulfil
the conditions required to create a situation (comparable to the Island of
Palmas case) in which it would have acquired, on the grounds of effective
authority, rights which would allow China to supplant Vietnam. Over the
entire period (1884-1939) the acts advanced by China concerned the
Paracels alone. On the eve of the War the Chinese position was explicit. In a
38
See letter of 6 October 1921 from the official in charge of the French Consulate in Canton
to the Foreign Ministry, Annex 14.
39
Jian Zhou, op, cit., p. 280.
Note dated 18 July 1938, the Embassy of China in Paris publicly asserted the
Chinese rights to the Paracels. There was never any clear mention of the
Spratlys.
The attitude of France from taking possession of Indochina until

World War II
The French attitude needs to be analysed over two different periods of time.
Until the late 1920s, France showed very little interest in the archipelagos. It
was not aware of Annam's former rights and its concern was solely to
prevent others from controlling the islands and thus constituting a threat to
the gateway to its colony of Indochina. However, from the late 1920s
onwards, an unequivocal French claim emerged, based for the Paracels on
succession to the rights of Annam and for the Spratlys on the principle of
discovery. This claim was made official by a solemn taking of possession
and by a genuine administrative organization.
a) The first period of colonization. The hesitations of France
At the beginning of the colonial period in Indochina, France's actual conduct
in the archipelagos bore little relation to an assertion of sovereignty
(sporadic acts, deliberate but not taken to completion, revealing the intention
to explore and survey rather than to possess).
Moreover, diplomatic correspondence revealed on the part of various
French authorities a genuine ignorance of the former rights of Annam, and a
somewhat passive attitude towards China's claims.
For a long time France's interest was very remote.
It cannot be said that colonial France lacked interest in the archipelagos.
However, it did not actually express the intention to act as sovereign.
The Ministry of the Colonies and the Government General of Indochina
envisaged sovereignty over the Paracels as early as 1898.
A journalist, Mr Chabrier, had declared his intention of estab-
lishing in the Paracels stores to sell provisions to fishermen. On
the advice of Mr Michon, then Minister in Peking, Mr Doumer
replied (in June 1899) that Mr Chabrier's venture had no chance
of success but that, with the aim of preventing another power
from establishing a presence in the islands, it might be oppor-
tune to build a lighthouse in the archipelago in order to assert
our sovereignty.
104 Chapter III
This was not done, since the construction of a lighthouse

appeared to be more useful for navigators at Cape Parella than
in the Paracels.
Moreover, the French Navy was regularly present in the archipelagos in the
form of tours by cruisers belonging to the Indochinese customs service. This
was related by P.A. Lapique,40 whose information confirms a certain French
presence.
According to this author, French naval cruisers used to visit the archi-
pelagos at the request of the Consuls of France in Hainan, whenever the
wives or children of the Annamese fishermen were captured by the Chinese
'to be sold'. They also intervened when information was received that arms,
munitions or opium were being stored on the islands. Thus a French naval
police service of a sort did operate.
P.A. Lapique even described the seizure by a French ship of a Japanese
vessel loading phosphates at Woody Island. However, the Japanese captain
claimed to have the permission of the Commander of the Navy in Saigon,
and the author concluded that the Japanese had behaved correctly towards
the French authorities, and had not disregarded their rights to the Paracels.
Lastly, in 1925 Mr Krempf, director of the Oceanographic Service of
Indochina, surveyed the archipelago.
The interest expressed in the form of these various activities was real. Yet
was it specific enough to be categorized as the intention to act as sovereign?
For some time, French intentions were shrouded in uncertainty.
Over the same period, diplomatic correspondence up to the late 1920s
(and other archive documents) reveals that France had not made up its mind
in respect of the archipelagos, or more precisely the Paracels, the Spratlys
being rarely mentioned.
A Note of 4 May 1909 from the French Consulate in Canton (i.e. after the
Chinese expedition to the Paracels) stated:
Mr Beauvais contends that France would have as many rights to
the islands as China and that it would be easy for us to find
arguments to support our claims. However, should the game not
be worth the candle, it would perhaps be preferable, in his view,
to turn a blind eye to what is now happening, since an inter-
vention on our part might lead to a fresh wave of nationalist
40
Op. cit., p.9.
feeling in the population, more damaging to us than the

possession of the Paracel Islands would be useful.41
This opinion was to persist until the late 1920s, expressed in slightly
different terms by various authorities. Overall, France did not pose as
successor to the rights of Annam, and did not know how solid such rights
had been; France might well be a 'candidate' for sovereignty over the
Paracels but not at the price of too sharp a deterioration in its relations with
China.
This was made very clear in a Note from the Foreign Ministry, cited
supra. Recalling the opinion of Mr Beauvais, it stated:
My Ministry agreed with Mr Beauvais and we allowed the
Chinese to do as they pleased.
Since a gap of 12 years had elapsed between Mr Beauvais' opinion and the
Note in question, France showed a very marked lack of interest at the time.
A minor commotion was created by an incident reported by P.A. Lapique,
mentioned supra, and positions began to be contradictory. On 20 September
1920, a Japanese company wishing to mine phosphates on Woody Island
applied to the Commander of the Navy in Saigon, asking whether the
Paracels were a French possession. The application proves that, at that date,
Japan was concerned about France's possible rights.
In his reply, the Commander of the Navy in Saigon stated:
There is no paper in the official documents of the Navy
allowing the nationality of the Paracel Islands to be determined.
Nevertheless, I believe that I can assure you that they are not a
French possession, but this assertion is based solely on my
personal memories and I cannot provide you with any conclu-
sive document in support of this.
As can be seen, the Commander of the Navy, aware that he had no authority
to speak, acted with caution.
The press having reported the absence of any claim on the part of France,
the Ministry of the Colonies was alerted and requested further information
from the Foreign Ministry.
All correspondence exchanged on that occasion, dating from the 1920s,
revealed France's hesitations. In that initial phase, it was unsure of its rights.
When China announced that the Paracels had been administratively incor-
41
See Annex 13.
106 Chapter III
porated into Hainan, Paris debated whether it was necessary to protest

against the incorporation and to declare the islands a French possession.
It can even be seen that some political authorities did not rule out
negotiating the abandonment of all French rights in exchange for other
French interests in China.42 However, negotiating the abandonment of its
rights meant recognizing that it had rights.
It would perhaps not be excessive, in exchange for official
recognition that the Paracels are Chinese, to request a formal
commitment from the sovereign Government never to set up a
military or naval base there and to install no facilities to that
end.4 3
in a letter to the Foreign Minister dated 25 October 1921, France's Charge
d'Affaires in China referred to the difficulty there might be in negotiating
with China at that time, in view of the absence of a 'Chinese Government'.
Yet from 1922 onwards a degree of concern surfaced at the idea that
complaisance towards China might eventually serve Japanese ends.
All the above relates to the Paracels alone. As for the Spratlys, a letter
dated 24 December 1927 from Governor General Pasquier to the Minister
for the Colonies reported the interest shown by the Japanese in certain
islands.44 The Governor added:
It would seem that France has never voiced any claim to these
islands, which belong more logically to the Indonesian archi-
pelago than to the Indochinese peninsula.45
A Note of 8 March 1928 similarly states:
The islands in question belong neither politically nor geo-
graphically to the coastline of Annam.46
A further Note of 26 November 1928, addressed to the Under-Dircctorate ;for
Asia and Oceania, questioned whether the islands (the Spratlys) were indeed
42
See note of 6 May 1921 from the General Government of Indochina. Annex 12.
43
Quoted as the view of the Governor General of Indochina in a letter of 18 April 1921
from the Minister for the Colonies. Annex 16.
44
M.S. Samuels (op. cit.) contends that, for the Japanese, it might have been feasible to
discuss with France the status of the Spratlys, but not that of the Paracels, which at the
time Japan considered to be a matter between itself and China.
45
See Annex 17.
46
Annex 18.
terra nullius and repeated that no decision had yet been taken as to French
sovereignty over the Paracels.47
Various letters or notes exchanged in 1929 between the Resident in
Annam and the Chief Resident in Tonkin show that the status of the Paracels
remained obscure for these senior officials. However, they also show that
France never officially recognized China's rights and hesitated to develop its
own rights owing to the climate of nationalist feeling in China.
What legal conclusions may be drawn from this period (from initial
colonization until the late 1920s)?
- France had not clearly asserted its sovereignty; nevertheless it had
never officially recognized Chinese sovereignty. Rather, in the correspond-
ence analysed, it gave the impression of waiting for a propitious moment to
recall its rights and then to negotiate them.
- Although it was not active in the archipelagos, it was not completely
absent from them either. Such acts as it did carry out were unassertive and
sporadic, and it may be asked whether they were actually a genuine factor in
maintaining and consolidating effective occupation.
- This hesitant, half-hearted attitude being the act of the colonial power,
not the initial holder of title to sovereignty, did not entail any interruption of
the rights previously acquired by a people which was dominated at the time,
therefore reduced to silence. All the more so in that France took no steps
legally to renounce its rights in favour of some other sovereignty.
b) The second period of colonization (until World War II). The clear and
official assertion of French sovereignty over both archipelagos
Finding himself obliged to reply to the New Phosphates Company of Tonkin,
which sought to work the Paracels, the Governor General of Indochina,
writing to the Minister for the Colonies on 17 December 1928 and de-
nouncing 'the ever-increasing megalomania of Chinese nationalism', clearly
stated: 'It is therefore time for us to take the initiative and to assert rights
which appear to be recognized both in historical documents and by geo-
graphical realities.' 48
Seeking to buttress the French position, the Governor General asked the
Chief Resident in Annam for full information, which the Resident supplied
in the letter dated 22 January 1929, cited supra.49 This document is
extremely important. The Resident recalled the rights which Annam had
47
Annex 19.
48
Annex 20.
49
Annex 8.
108 Chapter III
long asserted and maintained, then noted that Annam's coastal fishermen (at
the time he wrote) no longer visited the islands. However, appearing to
remember the status of protectorate initially granted and with it the possible
and necessary expression of the views of the interested parties, he wrote as
follows;
Our proteges, therefore, appear not to have asserted their
ownership of the Paracels for many years, although His Majesty
Than-Trong-Hue, former Minister for War who died in 1925,
did affirm in a letter of 3 March of that year that 'the islands
still belong to Annam, there is no dispute on this score'.
The Resident deplored the passive attitude of France faced with the Chinese
claim of 1909.
Thus, even through the colonial system derived from the protectorate, the
few people who had occasion to speak on behalf of Vietnam did so in terms
which revealed the continued intention to act as sovereign.
The French Foreign Minister formally noted (in a letter of 26 February
1929) that there appeared to have been a reversal of the French position
adopted in 1921, and requested further information.50
As is often the case, Paris knew less about the situation than some local
authorities. Writing to the Foreign Minister on 18 February 1929, the
Minister for the Navy (standing in for the Minister for the Colonies) still
urged a waiting game.
Even so, he referred to information which had reached him, stating:
Annam however possesses historical rights over this group of
uninhabited islands which are much less open to question than
those which Nationalist China might claim.51
Of all the authorities involved, Pasquier (Governor General of Indochina)
was the slowest to understand both Annam's ancient rights and the interest
the Paracels represented for France. On 3 April 1929, he sent a telegram
which advocated maintaining the attitude adopted in 1921,52 However, in
November the same year, a French Senator, Mr de Monzie, wrote to the
Minister for the Colonies:
The rights of Annam, and therefore of France, to the Paracels
seem to have been beyond dispute since the 17th century, and
50
Annex 21.
51
Annex 22.
52
Annex 23.
the islands would be an excellent place to install a radio station to

provide advance warning of typhoons.
The Ministry of the Colonies then urged Pasquier to explain his reticence,
Pasquier studied the whole case, and his correspondence in March 1930
reflected the shift in his views. He became convinced of the validity of
Annam's rights. However, his fears concerning China still prompted him to
advocate a waiting game.53
A Note from the Quai d'Orsay, signed Knobe! and dated 19 June 1930,
finally asked the correct legal question. Had the sovereignty plainly acquired
by Annam been lost since it had not been exercised? The author concluded
that it was not so. He relied on the study by P.A. Lapique, stating that the
Paracels had not been abandoned and therefore had not become res nullius.
The Representative of France in China remarked that there had therefore
been a return to the former view and noted the long absence of any protest
by France against Chinese actions.54
Governor Pasquier's letter dated 18 October 1930 put an end to France's
hesitations."
Thenceforth, all French documents reflected the clarification of the
situation. Annam had possessed rights since the 18th century. China had
endeavoured to assert its rights only since 1909. Yet it could not be said that
at that precise time Annam's rights had been extinguished. The French
position was therefore to have the 'appearance of a simple exercise of pre-
existing sovereign rights '.56
A further telegram of 19 July 1931 from the French Foreign Ministry
revealed further hesitation; France did not rule out being obliged to
recognize Chinese sovereignty.
Finally, on 4 February 1932, a Note was addressed to the Legation of
China, asserting France's rights, but offering to take the matter to arbitration
should China reject these rights.
China's reply was dated 29 September 1932. It was confused, the
confusion springing from the names used for the islands (the Chinese
referred to another archipelago, 150 miles away). Moreover, the reply relied
on the Sino-French Treaty of 1887; yet, as expounded supra, the Treaty is
irrelevant in this case.
53
Telegram of 14 March 1930, Annex 24.
54
Peking, 28 July 1930. Annex 25.
55
See Annex 26.
56
Official telegram of 4 July 1931. Annex 27.
110 Chapter III
Towards the end of this period, France at last asserted its rights over the
Paracels in unequivocal terms. Some authors maintain that it did so formally
in March 1925.57 What is certain is that an initial decree (n° 156-SC), issued
by the Governor General of Indochina on 15 June 1938, created a delegation
(administrative unit) covering the Paracels, and incorporated them into the
province of Thua Thien (Annam), and that a second decree of 5 May 1939
signed by Jules Brevie created two administrative delegations, one covering
the Crescent group of islands, the other the Amphitrites. The officials
heading the delegations were given the title of Delegates of the Resident of
France in Thua Thien. They were supposed to reside on Pattle Island and
Woody Island respectively.58 The inhospitable nature of the islets must be
borne in mind. It explains the gap between the intention to act as sovereign
and actual administrative occupation. The latter happened gradually. Not
until 1938 was there was a permanent military presence. However, contrary
to the contentions of some Chinese authors, there was no 'use of force'
against the Chinese, since there was nothing that might be characterized as a
Chinese occupation.59
All the correspondence analysed supra relates to the Paracels. France
appears not to have adopted the same attitude for the two archipelagos. The
Spratlys were a simpler matter. In March 1929, an application having been
submitted to mine guano, Governor Pasquier saw no objection, adding how-
ever the rider:
Permit issued at the risks and perils of the parties concerned
should this group of islands be validly claimed by some other
power.60
This reflected the doubt which persisted in the Governor's mind.
The French Foreign Minister asked the Consul of France in Manila about
any claims the Philippines might have. The Consul replied on 22 March
1929 that the Philippines had shown no interest.
Nowhere in the case is there any trace of any Chinese claim whatsoever
to the Spratlys throughout the colonial period.
Japan, however, did express an interest in 1929 in the form of an inquiry
made by its Consul General in Hanoi. This spurred the French colonial
administration into action.61
57
See Jean-Pierre Ferrier, op. cit., p. 182.
58
See Annex 28.
59
Jian Zhou, op. cit., p. 306.
60
Annex 29.
Subsequen t Development of the Title 111
A communique of 23 September 1930 notified third States that France

had occupied the Spratlys. A formal ceremony of occupation was held in
April 1933. It was announced in the Official Gazette of 26 July 1933. Six
islets were mentioned in the text and precisely described. The only protest
against this assertion of sovereignty was lodged by Japan, China remained
silent. On 21 December the same year, the Governor General of Cochin
China, Mr J. Krautheimer, signed a decree incorporating these islets into the
province of Ba Ria.62 Does this mean that France had asserted its sovereignty
only over the specifically mentioned parts of the archipelago, leaving the
status of the remaining islands and islets open? Here we come to a point of
legal theory defended notably by the arbitrator Max Huber in his Island of
Palmas Award. He contended that when a group of islands forms a unit, the
fate of the main part may determine that of the remainder. In view of the fact
that, however scattered they may be, these fragments of land form a
geographical unit, and that in the years concerned (1930-1933) there were
no other acts of taking possession, the theory of the unity of legal status is
applicable here - all the more so in that archive documents, notably a letter
from the French Ministry of Defence to the French Foreign Ministry,
indicate that it was indeed France's intention to extend its occupation to the
entire archipelago.63
Thus, before World War II, the French authorities manifested their
intention to act as sovereign over both archipelagos, taking effective
possession of them, albeit after quite a long period of hesitation.
For the Paracels, this took the form of an assertion of the continuity of the
rights of Annam. For the Spratlys, sovereignty was manifested on the basis
of a situation of terra nullius.
Were rights established for States other than China or France?
There are two cases that need to be examined, though they will not detain us
for long. These are the cases of Japan and Great Britain.
a) Japan
There was no Japanese claim prior to the months leading up to World War II.
There was even an explicit lack of interest referred to by the Acting
61
'La poussee nippone vers 1'Ouest, Occupation des Spratleys' (1939) Revue des troupes
coloniales, at p. 463.
62
Annex 30.
63
Letter of 30 March 1932 from the Minister for Defence to the Foreign Minister. Annex
31.
112 Chapter III
Governor-General of Indochina in a letter dated 25 December 1927 to the

Minister for the Colonies. In this letter, he mentioned that the Consul
General of Japan had told him that the Paracels were of no interest to the
Japanese Government.64 Talks were held between Japan and France in Paris
in August 1934, confirming Japan's renunciation of its claims.65 However, in
the course of its rise to military power in the late 1930s, Japan made a move
towards the islands. Under the pretext of mining guano, Formosan militia led
by Japanese officers set up a camp on the islands.
The Imperial Japanese Government annexed the islands by decree in
1937 and attached them to the administrative district of Formosa.66 However,
this was more lust for power than legal argument. The Japanese army
occupied the Spratlys in 1939 and the Paracels a little later. France protested,
but World War II was then looming on the horizon.
b) Great Britain
When in 1930 France began to indicate its intention to assert its sovereignty
over the Spratlys, the British Consul General in Saigon informed the Foreign
Office, noting that certain islets had apparently been occupied by British
subjects in 1877 with the consent of Her Majesty's Consul General in
Borneo. Voluminous diplomatic correspondence was exchanged on the
matter and legal experts were consulted.
Yet Great Britain decided not to assert any rights, considering that the
acts actually performed by the British subjects were too slender a basis to
have constituted an 'inchoate title' and that, in any case, there had been no
subsequent consolidation. This is why this case has been examined by
authors under the heading: abandonment of territorial claims.67
What can be said on the date when this period ends (1939)? Everything
turns upon two interrelated matters with a legal dimension: were the rights
acquired by Annam before the protectorate abandoned under the French
administration? Was their abandonment greater in the case of the Spratlys
than in that of the Paracels? Did this abandonment lead to the creation of a
title for another power such as China or Japan?
On the first point, no abandonment can be discerned in legal terms.
Indeed, in the last decade (before the War), there was even an affirmation or
reaffirmation of France's rights. Yet the long period of French uncertainty or
64
Quoted by J. Leune in Mer et Colonies, August-September 1938.
65
See Ministry of Foreign Affairs Note, 10 August 1940, Annex 32.
66
Same correspondence.
67
Geoffrey Marston, 'Abandonment of Territorial Claims; the cases of Bouvet and Spratly
Islands' (1986) 2 British Yearbook of International Law, VII.
hesitation put the Vietnamese title on ice as it were and there must be a
question mark over its vitality after thawing out. Apart from the diplomatic
correspondence, the legal force of other elements of the case needs to be
weighed up. An example is a report by Chief Engineer Gauthier dated
26 November 1937 at Haiphong, It gives an account of a civilian mission
aimed at displaying France's interest in the Paracels. True, from start to
finish, the text of the report reveals, on that date (1937), his ignorance of the
ancient links between these islands and Vietnam and for him the archipelago
is not under French jurisdiction... or Chinese jurisdiction either for that
matter. This administrative report is not binding on the official authorities.
By entrusting Gauthier with this mission, these authorities, in other words
the Governor-General, clearly had the exercise of French sovereignty in
mind. By the time of the Decree of 15 June 1938 administratively attaching
the Paracels to Indochina, that exercise became completely official.
The fact that the maps of Indochina printed by France throughout this
whole period do not include the archipelagos must also be interpreted. All
the available maps drawn up during this period, more particularly the
aeronautical and climatic maps, those relating to typhoons, do not go as far
as the Paracels or mention them without any indication of sovereignty. None
of them provides the slightest pointer.68
It is easy to see why. French uncertainties were long-standing... they did
not create a favourable climate for producing maps in support of an assertion
of French sovereignty.
Furthermore, at that time no-one even considered the cartographic
argument, since by virtue of well-established case-law (arbitration in the
Island of Palmas or Temple of Preah Vihear cases), international law held
that, in disputes regarding sovereignty between States, maps have no official
value.
Hence, the title, which was nevertheless ultimately reclaimed by France,
emerged from this period less strongly asserted. Yet it cannot possibly be
said that it was destroyed, as two additional remarks support the conclusion
that, in 1939, this title was still valid, held by the colonial power. That power
did not perform the act of abandonment which, by creating a right for a third
State, made abandonment irreversible. The colonial power was ignorant,
prudent to excess, yet it remained keenly aware of its interests.
When it finally regained independence, the Vietnamese people had no
cause to adopt such reticence or ignorance, which could not be imputed to it.
The decrees of the recent period are essential.
68
These are the maps indicated in the general bibliography at the end of this book.
114 Chapter III
Confronted by the difficult, chaotic yet genuine maintenance of this title,

China, the only true rival power, and only as regards the Paracels, was slow
off the mark and unsuccessful.
The exercise of the previous title, constructed patiently and at such
length, was paralysed as a result of the colonial period and the administration
of the islands was very sporadic. However, and despite this context, China's
acts were neither sufficiently clear and continuous, or undisputed, to
constitute a right.
Hence, the continuity of the right of France and of the right of pre-
colonial Annam is genuine where the Paracels are concerned, even though
established late in the day.
Where the Spratlys are concerned, France did not invoke the same link. It
took possession of these islands as it would of a terra nullius. Did this
amount to abandonment of the rights of Annam, that is, always assuming
those rights were genuine? Respect for the right of peoples militates against
this. And just as French hesitation over the Paracels could not destroy the
ancient rights of Vietnam, so the attitude of France in regarding the Spratlys
as res nullius before settling there could not completely efface the previous
title if it was well established.
However, the problems of the two archipelagos differed since the French
rights over the Spratlys, while lacking the patina of age and considered to be
rights asserted over terra nullius, were stronger by virtue of the fact that,
during the colonial period, they were not challenged by the claims of another
State, as in the case of the Paracels. For China did not make any specific
claim to the Spratlys throughout this whole period. And the Japanese claim
was a late one, circumstantial and lacking any legal basis. So much so that,
when the time came, the moment of decolonization that is, the question of
Vietnam's succession to the title acquired by France could be raised without
the hindrance of rival claims and even without necessarily being joined to
the more ancient title of the emperors of Annam, which had been in cold
storage much longer.
Yet for this archipelago it remained an open question. In 1933, France
announced in unequivocal terms that it had taken possession of six islets.
Did this also mean possession of the whole archipelago? The other claims in
this period were weak, a belated show of interest by the Philippines and
nothing else. Could it therefore be asserted that the subsidiary case follows
the principal one? This is certainly the current Vietnamese view. This rule,
which was still valid until the close of the 19th century, has been tightened in
the 20th century. The occupation must be effective and must correspond to
an overall administration. The nature of the locations concerned must
Subsequent Developmen t of the Title 115
therefore be investigated to find out whether it is indeed the principal islets

which have been acquired, with the result that this acquisition would also
include the other islands as well. An examination of the situation in more
recent periods will show how far this approach goes.
End of the colonial period (after World War II)
The chronology of events69 and the discussion devoted to the question of the
succession of States or of governments70 have highlighted the situation, a
highly complex one in legal terms, which obtained in Vietnam in the
immediate post-war years.
However, as this situation was dominated by the presence of the French
Expeditionary Force and a French administration (until 1954-1956), it is
logical to lump these years together with the colonial history and to analyse
them so as to include an examination of French positions.
In this confused period, the two elements - material or intentional -
constituting the maintenance of the rights need to be identified. These
elements involve Japan (though it would very soon be completely expelled
from the region). Where Vietnam is concerned, they involve France, the
Government of the Democratic Republic of Vietnam, and the Associated
State of Vietnam. Where China is concerned, they involve the Government
of Nationalist China and, after 1949, the Government of the People's
Republic of China. There are also, as we shall see, certain elements from the
Philippines.
The material elements
The disorder created by the end of World War II was reflected in the material
situation in the archipelagos. Different troops succeeded one another there or
shared the occupation of the archipelagos even though this was not always
asserted as an intentional act of sovereignty. Sometimes, these are simply
facts of war.
The Japanese army was present until the capitulation of Tokyo and would
not leave the two archipelagos until 1946. The Treaty of Chung-King of
28 February 1946 had given the Chinese troops responsibility for disarming
the Japanese soldiers north of the 16th parallel. This Treaty authorized
Chiang Kai-shek to occupy the Paracels, which he would appear to have
done in November 1946. He also occupied the Spratlys, despite having no
69
Chapter I.
70
Chapter III.
116 Chapter III
mandate to do so from the Allies, in December the same year.71 In support of

this presence is the fact that, in 1947, the Ministry of the Interior of the then
Chinese Government published an atlas in which China included the
archipelagos. But contrary to the assertions of certain Chinese authors, this is
not to say that China possessed 'historical' rights over the islands, as this
inclusion was of late date and associated with particular circumstances.
In May 1946, France landed a French infantry unit from the Savorgnan
de Brazza on certain islands, but it remained there for only a few months.
In late 1946, General Juin recommended the reoccupation of the Paracels
in order to consolidate, as he put it, our position in the legal debat.72 In
early January 1947, a French military mission arrived on Pattle Island.73
In March the same year China re-established a foothold on Woody Island
and protested against the French military presence.74
The political situation worsened just as, at the diplomatic level, France
and China decided to open talks.75 The French were still present on Pattle
Island (2 officers, 10 Europeans and 17 natives).76 On 5 May 1949, the
Chinese reiterated the administrative attachment of the Paracels to Hainan
Island. In April 1950, Nationalist Chinese troops were evacuated from
Woody Island only to be replaced by troops from the People's Republic of
China.
France once again indicated its desire to refer the case to the International
Court of Justice.
The presence of Communist Chinese troops in the Paracels in 1951 and in
the following years has not been confirmed.
In July 1949, the French Navy requested instructions and reported that
one of the Spratly Islands (Itu Aba) was occupied both by a detachment from
Communist China and by a detachment from Nationalist China.
In October 1950, the French Government officially handed over control
of the archipelagos, or rather, of the Paracels, there being no effective
presence in the Spratlys, to the Bao Dai Government. Yet it was not until
1956 that the administration of South Vietnam, in the wake of the
71
See Pierre Bernard Lafont, op. cit., pp. 249 and 254.
72
See this letter dated 7 October 1946 to the President of the Committee on Indochina.
Annex 33.
73
See report of 29 January 1947. Annex 34.
74
Pierre Bernard Lafont suggests the date of 7 January 1947 (p. 249). The French
Ministry
of Foreign Affairs, March 1947. Telegram of 8 March 1947. Annex 35.
75
See documents of 31 May and 3 June 1947. Annex
36.
76
See telegram of 25 January 1951. Annex 37.
withdrawal of the French Expeditionary Force from Indochina, took over the
French garrison on Pattle Island (Paracels).
The same year, the People's Republic of China occupied the other part of
the archipelago from which it never withdrew.
Also the same year (1956), the South Vietnamese Navy occupied some of
the Spratly Islands and set up a boundary-marker there indicating sover-
eignty.
From this confused period, which is that of the first war of Indochina
(1945-1954), and the ensuing months, scarcely any facts can be derived
pointing to a sovereign administration of the archipelagos.
However, what is recognized is: that a (partial) French, and subsequently
South Vietnamese, presence was always maintained in the Paracels or rather
on one island in that archipelago; that France was somewhat guarded with
respect to the occupation of the Spratlys, while still retaining an interest in
them even though they were occupied by the Vietnamese from 1956
onwards; that Nationalist then Communist China was present in part of the
Paracels until 1950 then again from 1956 onwards; that the two Chinas were
present much more fleetingly in the Spratlys; that the Philippines then
displayed interest in the Spratlys or at least certain islets in that archipelago.
However, in a period of political and military confusion such as the one
under consideration here, intentions are decisive. They must therefore be
scrupulously examined.
The multi-faceted element of intention
The claims of sovereignty, first made unilaterally, subsequently formed the

subject of multilateral debate on the occasion of international declarations or
agreements.
a) France
The diplomatic correspondence enlightens us as to French intentions in this
period. The Government in Paris maintained its rights and reaffirmed them
on every occasion.
Even after the Agreements of 6 March 1946, it was considered that 'It is
for France, on behalf of Annam, to assert its rights in the wider world.' 77
That included both the Paracets and the Spratlys. In a telegram of August
1946, the French High Commissioner in Saigon indicated to the naval
attache that France controlled the Paracels and that every ship planning to
77
Note of 6 September 1946. Annex 38.
118 Chapter III
put into port there must request authorization to do so from the High
Commissioner.
The Paracels were the subject of negotiations with (Nationalist) China
from February to July 1947. These talks were unproductive but were an
opportunity for France to reaffirm its rights and to propose that they be put to
arbitration.
Later on (from 1951 to 1955), the French Ministry of Foreign Affairs
even sought to assert that the Spratlys could not be Vietnamese, that their
attachment to Cochin China had been purely administrative and that these
(French) islands were now to come under the French Department of
Overseas Territories.78 This argument was reiterated in a Note from the
Department for Asia-Oceania of 11 July 1955... It was not to resurface after
that date even though France never explicitly abandoned the Spratlys. On
16 June 1955, General Jacquot, French Commissioner General in Indochina,
referred to a secret letter of agreement of 15 March 1949 addressed to
Emperor Bao Dai, in which the High Commissioner, commenting on the
Agreements of 8 March 1949, apparently recognized Vietnam's sovereignty
over the Paracels though remained silent on the Spratlys.79 The French
position during this period was recognized and supported by other countries.
An example was Great Britain which turned to France in 1948 with a request
for permission to use Lincoln Island for military exercises, and a further
example was the Australian Government which said it was prepared, on the
occasion of the drafting of the peace treaty with Japan, to back up the claims
of the French Union.
b) China
The intentions of the Chinese were also very clear as regards the Paracels.
Any passage by a French vessel was challenged and protests were sent to
the French Consul in Canton.80 In 1947, negotiations on the Paracels were
held in Paris because holding them in Nanking was impossible owing to the
intransigence of Chinese public opinion. In the negotiations, the Chinese
took a very hard line and made the evacuation of Pattle Island by the French
detachment a precondition of pursuing the talks.81 This was Nationalist
China, which would appear to have pulled out in May 1950, though the
People's Republic of China took over the Chinese claims on its own behalf
78
See letter from J. Letoumeau, 7 May 1951. Annex 39.
79
See letter of 16 June 1955 from General Jacquot. Annex 40.
80
Official letter dated 29 April 1949 from the Special Delegate of Wai Kiao Pou. Annex
41.
81
See Note dated 15 May 1950 from the Directorate for Asia-Oceania. Annex 42.
and asserted them in no uncertain terms, not only for the Paracels but the
Spratlys as well.
c) Vietnam
During this period, the representatives of the Vietnamese people reaffirmed
the sovereignty of Vietnam. The French authorities indicated this in a
telegram dated 23 April 1949 to the Ministry of Foreign Affairs, in which it
was stated that a lecture by Bao Dai's directeur de cabinet had provoked an
incident on the subject of the Paracels. And Mr Pignon, author of the
telegram, explained that he had been obliged to give an assurance that the
High Commissioner 'considered the Paracels to be a crown dependency of
Annam' and that he would support the Vietnamese in this dispute.82 This
underscores the long-standing nature of Vietnamese intentions.
d) The Philippines
Lastly, the Philippines joined the fray in 1950 regarding part of the Spratlys
at least, stating that they would not tolerate occupation of the islands by any
hostile force.
As we see, since the end of World War II, there has been an abundance of
intentions to act as sovereign forming the highly complex fabric of this case.
e) Multilateral declarations or agreements
In the multilateral context, is there any room for a little objectivity in a case
dominated by tension between the subjective opinions of States?
Japanese desires with regard to the archipelagos, already expressed
before the War and exemplified by the Japanese military occupation, were
destroyed by the Japanese defeat and subsequent disarmament.
Even before the end of the War, through the Cairo Declaration of 1943,
published on 1 December 1945, the heads of government of the United
States, China and the United Kingdom:
Announced that they proposed to divest Japan of all the Pacific
islands captured or occupied since the beginning of the First
World War, to restore to the Chinese Republic all the territories,
such as Manchuria, Formosa and the Pescadores, which the
Japanese had stolen from the Chinese and to expel Japan from
all the other territories it had seized by force.83
82
Telegram of 23 April 1949. Annex 43.
83
Lazar Focsaneanu, 'Les traites de paix du Japon' (1960) Annuaire Francais de Droii
International at pp. 256 et seq.
120 Chapter III
The Spratlys and Paracels clearly form part of the other territories. The
Cairo plan was to expel Japan from them. But unlike Manchuria, Formosa or
the Pescadores, the archipelagos concerned here do not form part of the
territories 'stolen' from China which the three Governments together
proposed to restore to it. Now, China itself was party to the Declaration,
Marshal Chiang Kai-shek having been present in person in Cairo, where the
talks lasted several days. The omission of the archipelagos from this part of
the 1943 Cairo Declaration is remarkable. It cannot have been fortuitous.
There was neither reservation nor separate declaration by China regarding
these territories. China's interest in these islands at that time was therefore
not decisive. At all events, China had been obliged to remain silent on this
point, unable as it was politically to assert its uncertain claims before the
States assembled there, whose number included France, in other words, a
partner which had never recognized China's rights over the islands and had
even, on several occasions, proposed to China that the matter be referred to
the International Court of Justice.
Some years later, the peace treaty with Japan was to be drawn up. In
1951, the United States of America and the United Kingdom were the host
powers at the San Francisco Conference. Fifty-five States were invited,
including the Associated States of Vietnam, Laos and Cambodia. It was
decided not to invite either of the Chinese Governments to attend.84 The
Treaty was signed on 8 September 1951 between Japan and 48 Allied
Powers. The repercussions of this for the archipelagos in the South China
Sea were extremely important.
Under Article 2 of the Treaty, Japan renounced all rights, titles and claims
to a number of territories, the Spratlys and Paracels among them. However,
following a French recommendation, the Treaty did not effect any devolution
of these territories. The People's Republic of China protested, admittedly not
from within the Conference since it had not been invited to attend, by a
Declaration of 15 August 1951.
The absence of attribution was to generate much comment and lead to
various theories.
According to D.P. O'Connell, four solutions were considered:85 a condo-
minium over the abandoned territories of all the States at war with Japan;
joint sovereignty to be acquired solely by the States parties to the peace
84
Owing to the disagreement between the United States and Great Britain, the former
recognizing only Nationalist China and the latter having recognized the People's
Republic of China.
85
D.P. O'Connell, 'The Status of Formosa and the Chinese Recognition Problem' (1956)
American Journal of International Law at pp. 405 el seq.
treaty (which excluded China, absent from San Francisco); return to the
status of terra nutlius by derelictio (this was the position put forward by
Maurice Faure in the French Assembly during the debate on ratification);
appropriation by the occupants of these territories after Japan's departure.
It should be noted that the latter solution would have led to the division of
the Paracels between France and China and to the attribution of the Spratlys
to France if anything. However, this solution lacked any legal basis. The
title, and the rivalry in the maintenance of the title, were so clearly
established prior to the Japanese occupation that, once that episode was over,
the historical depth and acquired validity of the claims of each party could be
carefully examined. And in that process of investigation, all elements count,
including, and above all, the public declarations and silences or reservations
which followed or accompanied these declarations. Hence, the conditions in
which the cessation of hostilities with Japan was effected require detailed
examination.
At the request of Mr Gromyko (the USSR being present in San
Francisco), an amendment was tabled at the plenary meeting of 5 September
1951. It 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. Yet this amendment was rejected on that occasion by 46 of
the countries present. Only Poland and Czechoslovakia supported the
USSR.86
The (Nationalist) Republic of China, concluding a peace treaty of its own
with Japan on 28 April 1952, formally took note of Japan's renunciation of
all rights to the islands, but did not have any claim of its own included in this
(bilateral) treaty. While San Francisco was not a particularly favourable
context for a successful outcome to the Chinese claim, bilateral negotiations
were much more so. However, the text only mentions Japan's renunciation
and does not put forward any proposals with respect to devolution. It is
difficult therefore to agree with the authors who assert that this text implied
recognition by Japan of Chinese sovereignty over these islands.87 In reality, a
86
Unaware of this fact, Pan Shiying writes: 'At the end of World War II, Japan returned
the Nansha Islands, which it had occupied during the war, to the Chinese Government.
No one in the international community challenged or protested against China's
resuming its sovereignty and ownership of the Nansha Islands'. (Pan Shiying, 'The
Petropolitics of the Nansha Islands - China's Indisputable Legal Case', p. 128). There are
two errors here: Japan actually returned the islands, but without their being assigned to
China. And the international community refused to accept the Chinese claim.
87
Jian Zhou, op. cit., pp. 257-258 or Steven Kuan-Tsyh Yu, 'Who Owns the Paracels and
Spratlys? An Evaluation of the Nature and Legal Basis of the Conflicting Territorial
Claims' (1989-1990) 9 Chinese Yearbook at p. 12.
122 Chapter III
rigorous argument based on the general rules for the interpretation of treaties
leads to the opposite conclusion that the text's silence on this point leaves the
question of the future status of the archipelagos completely open.
True, the People's Republic of China for its part, speaking through Mr
Chou en-Lai, Minister for Foreign Affairs, stated on 15 August 1951, in
connection with the draft peace treaty with Japan, that 'the Paracels and the
Spratlys have always been Chinese territories'.
However, the very terms of the (individual or collective) peace treaties
with Japan, the declarations made in them or from which these treaties stem,
signify that Nationalist China, which after 1949 took over the mantle of
continuity from the former single Chinese Government, did not make any
claim to the archipelagos on the occasion of the Cairo Declaration and
bilaterally recognized Japan's renunciation without putting forward a claim
of its own.
These two elements, the latter having all the solemnity of treaty
instruments and the former substantial political force, warrant the conclusion
that at that time the Republic of China ceased asserting rights to the disputed
islands.
However, this does not settle the question of the claim reiterated loud and
clear by the representatives of the People's Republic of China very soon
after they had seized power. Did that claim have any basis since the
surviving predecessor State (the Republic of China) had, through its silence,
renounced its rights? Could it be argued that it had renounced them in favour
of the People's Republic of China? This is not plausible in the context of
relations between the two States, which is a context of breakdown.
Consequently, Chou En-lai's claim, made on 15 August 1951, and
rejected by the Conference on 5 September with the Soviet amendment, had
no basis and the San Francisco Conference and surrounding events
weakened the position of China which, as we have seen, had always been
expressed as challenging Vietnam's previous positions and exercising the
balance of power.
How then is one to sum up the situation in 1954/56, when France quit
Indochina?
Leaving aside the claim to the Spratlys by the Philippines, a claim which
barely surfaces, it will be seen that, over this long period (1884-1954/56),
the Franco-Vietnamese positions on the one hand and the Chinese positions
on the other fluctuated, though to varying degrees.
France left behind the hesitations of the early colonial period, which
hesitations may well have weakened its title. It actually administered the two
archipelagos until the Japanese occupation. In the Paracels it did so in a clear
(though belated) affirmation of succession to the rights of Annam, and in the

Spratlys as the occupant of a terra nullius.
In the situation which France gradually found itself facing as the World
War gave way to the War in Indochina, it maintained both its presence and
its claim until, through its departure, it left (South) Vietnam to take over
where France left off. However, in the commentary on the San Francisco
Treaty (or certain Ministry of Foreign Affairs Notes), where the idea was
mooted that France might wish to keep the archipelagos for itself, not for
Vietnam, its tone was ambiguous.88
Throughout this whole period, the representatives of Vietnam were not
able to speak as a State. However, when they spoke, whether in 1925 (the
former Minister for War to the Emperor), in 1949 (Bao Dai's directeur de
cabinet), or in 1951 (the representative of the Associated State of Vietnam in
San Francisco), their position was always the same. The archipelagos had
long been Vietnamese. And so they must remain.
This desire, this intention, combined with the French presence (after the
period of hesitation), provides support for the maintenance of the title in
favour of Vietnam.
Despite certain weaknesses, the Chinese case is not totally devoid of
content.
Before the War, while China may have made its opinion known sporadic-
ally, it nevertheless did so repeatedly (1909, 1921 and 1932). Since the War,
Chinese interest in the Paracels has been persistent. Where these islands are
concerned, China has shown great tenacity.
The abandonment by Nationalist China (by omitting to put forward a
claim in the peace treaty with Japan) might be considered as a position
dictated by political circumstances, which would give further credence to the
idea of the succession of one China to the other. For China never indicated
any acquiescence in the Annamese or French claim. It did not do so through
the mouthpiece of the local mandarins in 1896, for although making it clear
that the islands were not Chinese, they added that neither did they belong to
Annam either. Nor did China do so later, since in 1938, when France
occupied the archipelagos, it was understood that the rights of the two parties
would be reserved.89 It would therefore be difficult to find any trace of
genuine Chinese acquiescence in the Franco-Vietnamese title, unless
drawing on documents not yet published.
88
See M. Samuels, op. cit., p. 68.
89
Legal Department Note, 6 September 1946. Annex 38.
124 Chapter III
It is here that the notion of the critical date comes back into its own. The
first possibility is to opt for the 1880s. A strong conception of the right of
peoples to self-determination and of respect for the territorial integrity of
peoples under colonial domination prompts a choice of 1884 as the critical
date, as well as the assertion that nothing which happened later can be taken
into consideration if it breached a long-established right acquired by the
people. However, two other critical dates selected from the period under
consideration can be suggested. The 1930s, and in particular 1937, when
France first proposed to China to go to arbitration, may be considered as
another point in the crystallization of the dispute. It has been seen above that,
on these dates, France still possessed a title superior to that of China over
both archipelagos (for different reasons). Lastly, the years 1954/56 (chosen
as the critical date by Jean-Pierre Ferrier) were decisive by virtue of the
reappearance of the Vietnamese people on the international stage (even
though speaking through two States).
Each of these three 'critical dates' opens up a perspective which appears
favourable to the Vietnamese argument.
However, it must be acknowledged that the post-war years confused
matters a great deal, in that, although the Franco-Vietnamese title was not
destroyed, the conditions in which it was exercised were problematic. It must
also be acknowledged that the Chinese claim, although originally unfounded
(i.e. in 1909) and greatly weakened by the San Francisco Conference, must
be seen together with the duration of the Chinese presence in the islands,
even if unlawfully established through the use of force and therefore unable
to produce any legal effects.
It now remains to consider the fate of the archipelagos during recent
decades.
THE POST-COLONIAL PERIOD
In 1956 French troops left the region, and France no longer made any claim
to the Paracels on its own behalf. It still claimed the Spratlys, without
however maintaining an effective French presence.
Of the two Chinas (for there are still two Chinese States), Taiwan has
since been largely absent from the whole issue (not totally so in the case of
the Spratlys).
The history of Vietnam has been tumultuous and the four decades 1956-
1995 cannot be analysed as a single period. They comprised two very
different parts. The years 1956-1975 were those of the second Vietnam war.
The country was split into two States as a result of the Geneva Agreements.
The attitude of both South and North must be examined, along with any
contradictions between them.
After 1975, the year of victory and of Vietnamese reunification, matters
are more simple.
The period of the division of Vietnam (1956-1975)
Over these 19 years, the situation in Vietnam was once again one of war. The
country was torn asunder, its two halves at war with each other. The
superpowers were involved. China and the USSR supported the Republic in
the north; the United States waged war and supported the 'Saigon adminis-
tration', or the State of Vietnam.
However, in the South there was also a Provisional Revolutionary
Government, the PRG.
Our analysis must first consider the actual situation in the territory of the
archipelagos, then pinpoint the declarations indicative of intention.
The material elements
The Geneva Agreements of 1954 effectively divided Vietnam. The South,

below the 17th parallel, included the archipelagos. It was recalled supra how
the troops of the Government of Saigon took over from the departing French
troops.
They replaced the French troops in the part of the Paracels not occupied
by the Chinese, so that between 1956 and 1974 the Crescent group of islands
was occupied by South Vietnamese troops, and the Amphitrite group by
those of the People's Republic of China. In January 1974, China seized the
western Paracels following violent clashes, and from then on the whole of
the Paracels was under its military control.90
In 1956 Saigon's troops also occupied the Spratlys, or at least some
islands, where a boundary-marker denoting Vietnamese sovereignty was
erected.
However, in March 1956 a Filipino citizen, Tomas Cloma, claimed to
have occupied the entire Spratlys archipelago (in a private capacity). A
Filipino expedition landed 29 men on one island, which received the name
90
The Vietnamese documents contain reports that as early as 1959 China had attempted to
land on the western part of the archipelago, with soldiers disguised as fishermen.
However the landing was repelled by the South Vietnamese forces and 82 Chinese were
captured (see The Hoang Sa and Truong Sa Archipelagos and International Law, Foreign
Ministry of the Socialist Republic of Vietnam, April 1988).
126 Chapter III
Freedomland.91 Since then the Philippines have gradually extended their

occupation, occupying three islands in 1968 and subsequently a further three
which were then fortified,
Taiwan occupied Itu Aba Island on a date which varies depending on the
author consulted.92
Thus, between 1956 and 1975, the Spratlys were occupied in part by
three States.
In order to evaluate the rights of each party, the facts must, however, be
seen in the light of intentions.
The elements of intention
Several governments then expressed the intention to act as sovereign. The

situation was different in each archipelago.
a) The displays of intention of the People's Republic of China
Since Chou en-Lai's speech of 1951,93 the People's Republic of China has
steadfastly reiterated its intention to act as sovereign. The intention is
strongly expressed in the case of the Paracels and is accompanied by a de
facto occupation. The partial occupation of 1956 was extended to the whole
of the archipelago in 1974. It is a military occupation, which is not
recognized in international law if there is a previous titleholder. China,
however, does not accept this argument and reiterates its intention, claiming
to have retaken islands which have belonged to it since time immemorial.
China also claims that in March 1959 the administrative prefecture of
Hainan set up an office on one of the islands in the Paracels to deal with
matters in the Xisha-Nansha-Zhongsha Islands, ‘which in March 1969 was
reportedly renamed the Revolutionary Committee of the Xisha-Zhongsha-
Nansha of Kwangtung Province'.94 This is clearly the mark of an effective
administration, albeit one constructed on the basis of an occupation carried
out under illegal conditions, which prevents the administration having legal
effects.
91
See Charles Rousseau (1972) Revue Generate de Droit International Public, Paris, at
p. 830.
92
Charles Rousseau mentions 1971, but as the date of the Filipino protest against the
occupation by Nationalist China. J.R.V. Prescott gives the date as 1956. It would appear
that 1971 was rather the date of a military reinforcement of the Taiwanese presence,
Taiwan having been present since 1956.
93
Seep. 122.
94
(1988) Novelles sinologiques, at p. 22.
In the case of the Spratlys, the Chinese also make their intention plain.
However, China cannot base its claim on any true occupation or adminis-
tration. The extension to the Nansha Islands of the administrative office set
up in 1959 was the result of a fiction. The description of the islands by
people who have visited them leaves no room for doubt on this subject.
Nationalist China, on the other hand, maintains its claims on the basis of an
actual presence.
b) Vietnam's manifestations of intention
During the war years, a divided Vietnam voiced its claims in a manner which
may appear contradictory.
The Government of South Vietnam never abandoned its unequivocal
intention of maintaining its sovereign rights to the two archipelagos.
Various decrees were issued concerning the administration of the islands
and their incorporation into Vietnam's territorial organization. A decree
concerning the Paracels was issued on 13 July 1961 (creation of the adminis-
trative unit of Dinh Hai), and a further decree of 21 October 1969 merged
Dinh Hai and Hoa Long.
The Spratlys were incorporated into Phuoc Tuy Province on 22 October
1956. Under a decree of 6 September 1973, issued by the Ministry of the
Interior of South Vietnam, they were incorporated into the municipality of
Phuoc Hai, in the district of Dat Do, Phuoc Tuy Province.
Meanwhile the Saigon administration lodged protests against China's
conduct on several occasions. The Journal d'Extreme-Orient of 4 June 1956
reported that the Vietnamese Secretary of State for Foreign Affairs had
lodged a protest against a declaration concerning the islands made by the
spokesman of the Chinese Foreign Minister on 29 May of the same year.
A further protest was lodged on 20 April 1971, this time with Malaysia,
and on this occasion Vietnamese sovereignty over the two archipelagos was
reasserted by South Vietnam's Foreign Ministry.
Lastly, in January 1974, following the taking of the Paracels by Chinese
forces, the Government of the Republic of Vietnam protested to the United
Nations, published a policy document on the archipelagos and forcefully
condemned the unlawful acts of the People's Republic of China. The Saigon
administration took advantage of the second session of the Third United
Nations Conference on the Law of the Sea, held in Caracas in June 1974, to
reiterate its rights to both archipelagos.
We could draw the line here and say that there is sufficient detail to prove
that the intention to act as sovereign is maintained on the part of Vietnam.
The territorial partition at the 17th parallel placed both archipelagos in South
Vietnam's zone. It was therefore for the Saigon administration, the Saigon
128 Chapter III
administration alone, to voice its claims to the islands. It did so. Moreover, it
did so as the successor to the former rights of France over the two
archipelagos, France having itself assumed the succession, at least in the
case of the Paracels, to the rights enjoyed by precolonial Vietnam.
However, the attitude adopted by the other Vietnamese Governments
deserves close scrutiny, since China uses that attitude as an argument.
The Provisional Revolutionary Government of the Republic of South
Vietnam (PRG) adopted a position in 1974 which recognized the existence
of a dispute, recalling that Sovereignty and territorial integrity are sacred
issues for all peoples' and calling for negotiation.95 Thus both the Govern-
ments which claimed to represent South Vietnam (and which therefore had
territorial responsibility for the administration of the archipelagos) had a
common attitude on this point. The Western press presented matters
differently, since an article in Le Monde dated 27-28 January 1974 stated:
In Paris, the delegate of the PRG to the conference held at La
Celle St-Cloud dismissed Saigon's proposal for the adoption of
a joint resolution condemning 'the violent occupation of the
Paracels by China', since, according to him, this type of dispute
must be settled by negotiation.
In fact the disagreement concerned the method rather than the substance of
the dispute, the Provisional Revolutionary Government finding it difficult to
condemn China, which had hitherto been its political ally in the Vietnam
War.
There remains the Government of the Democratic Republic of Vietnam.
China claims that this Government renounced sovereignty, advancing three
facts in support of this.96
On 15 June 1956, the Deputy Minister for Foreign Affairs of the
Democratic Republic of Vietnam, receiving the acting Charge d'Affaires of
the Chinese Embassy in Vietnam, reportedly asserted:
According to the documents available to Vietnam, the Xisha
Islands and the Nansha Islands, on the basis of the historical
evidence, form part of Chinese territory.
95
The protest was mentioned in an article published in Nhan Dan on 26 February 1988,
and was summarized in the feature 'The Hoang Sa and Truong Sa archipelagos
(Paracels and Spratlys)' (1984) Le Courrier du Vietnam, Hanoi, at p. 139.
96
For example in a brochure entitled: 'Documents and Other Materials concerning the
Recognition by the Vietnamese Government that the Xisha and Nansha Islands are
Chinese Territory'.
Has this comment been confirmed? Was it purely verbal or was there a
written record of it?
As these questions remain unanswered, this statement cannot be seen as a
legally valid pronouncement.
China also relies on a declaration by the Government of the Democratic
Republic of Vietnam dated 9 May 1965 and relating to the combat zone of
the American armed forces.
North Vietnam is said to have denounced the fact that this zone included:
A portion of Chinese territorial waters contiguous to the Xisha
Islands which belong to the People's Republic of China.97
Lastly, the declaration referred to a statement of 14 September 1958 by
Pham Van Dong, Prime Minister in the Government of the Democratic
Republic of Vietnam. Previously, on 4 September, China had publicized the
fact that it was extending the breadth of its territorial sea to 12 nautical
miles. It was indicated that this involved mainland China and all the islands
belonging to China, the Paracels and Spratlys among them, were specifically
included.
The Note by Pham Van Dong states:
We would solemnly inform you that the Government of the
Democratic Republic of Vietnam recognizes and approves the
declaration made on 4 September 1958 by the Government of
the People's Republic of China regarding the decision taken
with respect to China's territorial sea.
The Government of the Democratic Republic of Vietnam
respects that decision and will instruct its responsible national
bodies that, in the event of contact at sea with the People's
Republic of China, the stipulation regarding the breadth of the
Chinese territorial sea as being 12 nautical miles will be
scrupulously respected.
Articles published by the daily Nhan Dan in 1969 and 1970, referring to
Chinese airspace 'above the Paracels' aggravated the situation.
To assess these events, two facts need to be taken into account: the
precise significance of the North Vietnamese attitude and North Vietnam's
place among the partners concerned.
It is true that Phan Van Dong's declaration confines itself strictly to
recognition of the breadth of the Chinese territorial sea. So it is incorrect to
assert that Vietnam had also 'reaffirmed its recognition of China's claim' to
97
(1988) 8 Nouvelles sinologiques at p. 30.
130 Chapter III
the archipelagos.98 Nevertheless, its silence on the affirmation of Chinese

sovereignty over the islands can be interpreted as acquiescence, all the more
so as it is backed up by the declaration relating to the combat zones and the
articles in Nhan Dan.
Admittedly, these facts were situated in the very special political and
military context of the events then unfolding. For reasons due to circum-
stances, the Government of the Democratic Republic of Vietnam exercised
its power only north of the 17th parallel. This partition left the administration
of the archipelagos under the control of the South Vietnamese Government.
As we have seen, that Government had always been attentive to the question
of Vietnamese sovereignty over the archipelagos and was to continue to be
so until it ceased to exist in 1975.
The political allies of the Hanoi Government in South Vietnam were
represented by the Provisional Revolutionary Government of the Republic of
South Vietnam. Nothing they did suggests that they went back on their desire
not to interrupt the thread of Vietnamese sovereignty over the islands.
In this context, any declarations, statements or pronouncements by the
North Vietnamese authorities had no bearing on the title of sovereignty. This
was not the government with territorial jurisdiction over the archipelagos.
One cannot abandon something one has no authority over. Furthermore, this
was a government entirely in the hands of its allies, engaged as it was in an
all-out struggle against American might. The fact that, for the common
military cause, one party or another made use of neighbouring territories,
friendly territories or territories which were quite simply unable to put up
any opposition, is an example of the sort of provisional territorial
arrangements found in other war situations. International law cannot draw
any conclusions from this as regards continuity of the legal title. The fact
nevertheless remains that this particular moment in the history of the
partition of Vietnam blurs the Vietnamese position. The now reunified
Vietnam (through the victory of the North) must decide to which entity it is
successor on this point. The territorial logic reinforces succession to the
rights and actions of South Vietnam, which alone has jurisdiction from the
geographical standpoint.
c) The other manifestations of intention
There are few traces of the intentions of the Government of Taiwan.
98
Bradford L. Thomas, "The Spratly Islands Imbroglio: A Tangled Web of Conflict', in
International Boundaries and Boundary Conflict Resolution, 1989, p. 415.
In 1956 however, the Taiwanese Government, faced with the claims of

the Philippines to the Spratlys, sought to invoke its rights.99 And the
strengthening of the fortifications on Itu Aba was accompanied in 1971 by
talks with the Government of the Philippines in which each party reasserted
its claims.
The position of the Philippines fluctuated somewhat as regards its
intentions. The first manifestation of sovereignty by this State (over the
Spratlys) was in 1951. Yet 20 years later, the Government of the Philippines
not only occupied several islands while stating that it had no territorial claim
to this archipelago, but at the same time was in talks on this subject with
Nationalist China.
So in 1975 the situation was as follows:
In the Paracels, 100-per-cent occupation by China, strongly maintained
claims by South Vietnam and an attitude of the Democratic Republic of
Vietnam obscured by the events of the war.
In the Spratlys, a persistent and very clear Vietnamese claim by the
Saigon Government in continuity with the French taking of possession, and
also the many fiimsily argued claims of the two Chinas and the Philippines.
All these States, with the exception of the People's Republic of China,
occupy some small islands.
France has remained silent since 1956, though it has never formally
abandoned its rights over the Spratlys.
The return to a reunified Vietnam after the 1975 victory
The years after 1975 were to bring few changes to the Paracels. The islands
have been under military occupation by the People's Republic of China, the
eastern part since 1956 and the western part since 1974. The infrastructures
in the Paracels have been substantially developed by the Chinese People's
Army.
In the Spratlys, after April 1975, Vietnamese forces took over from the
detachments of the previous Saigon administration on the islands it had
occupied. In 1977, the Philippines stepped up their military presence on
seven of the islands in the archipelago.100 Malaysia occupied certain atolls in
September 1983. Lastly, in March 1988, China dispatched troops to certain
cays in the Spratlys, a naval incident led to the loss of Vietnamese vessels
and the deaths of a large number of Vietnamese sailors. Since that date, the
99
See Charles Rousseau, op. cit., pp. 830 el seq.
100
Le Monde, 12 May 1978.
132 Chapter III
Chinese Navy has maintained its presence in the archipelago. Taiwan

maintains a garrison on the largest of the Spratlys, Itu Aba.
The claims, however, have become more widespread. China maintains its
claims to both archipelagos and seizes every opportunity to recall its
historical rights and to reaffirm its sovereignty. Its attitude is not merely to
claim the protruding lands as such, but also to stake its continued claim to
the whole of the South China Sea in the name of historical rights. The basis
of these rights is not indicated, and this despite China's accession to the
Convention on the Law of the Sea.101 China's oil policy clearly shows this,
consisting as it does in granting concessions to American oil companies for
maritime areas situated in zones which, under the terms of the Convention,
Vietnam is entitled to claim for its own exclusive use.102 The Philippines
have developed their claims to part of the Spratlys. Taiwan persists in its
claims. Late on the scene, Malaysia claims to have a few rights.
Vietnam is extremely vigilant in pursuing its assertion of sovereignty
over the two archipelagos in their entirety. This claim is part and parcel of
the context of the continuity of the rights of the ancient Empire of Annam,
then of France on behalf of Vietnam under colonial rule, France having
effectively occupied the two archipelagos. The use of force by China to
occupy the Paracels in 1956, but above all in 1974, then certain islets in the
Spratlys in 1988, meant that Vietnam lost the factual element of its claim.
The Vietnamese Government seems to be at great pains not to allow this to
become abandonment through the absence of signs of intent. It is therefore
anxious to multiply such signs and wastes no opportunity to recall its rights.
This it has done in various ways, through acts, communiques or declarations.
Some of these were administrative instruments attaching islands to
certain provinces: the decree of 13 July 1961 by Ngo Dinh Diem, President
of the Republic of Vietnam; the decree of 6 September 1973 by the Ministry
of the Interior of the Republic of Vietnam; the decision of 9 December 1982
by the Council of Ministers of the Socialist Republic of Vietnam. Others
included acts relating to the maritime territory, the publication of official
reports or other heavily documented works, political declarations on the
occasion of international meetings, protests against acts of the People's
Republic of China, Nationalist China or any other State concerning the
archipelagos, such as those of 30 December 1978, 7 August 1979,
5 February 1980, and 11 August 1980 or declarations in the framework of
certain international organizations, in particular at the Conference of the
101
See Frederic Lasserre, Le Dragon et la mer. Strategies geopolitiques chinoises en Mer
de Chine du Sud (Montreal, Harmattan Inc., 1996), pp. 181 et seq.
102
See 'Drawn to Fray' (1997) Far Eastern Economic Review (3 April).
World Meteorological Organization in 1975 at Colombo and at the 7th

session of the Meteorological Conference of Region II (Asia) at Geneva in
June 1980.
During this period, the dispute, which undoubtedly crystallized earlier,
leads each party steadfastly to act in such a way as to maintain and improve
its position.
Hence, as things stand, two States are rivals for the Paracels and, France
aside, five are rivals for the Spratlys.
Chapter IV
Conclusions and Bases for a Settlement of the Dispute
Almost three centuries of history have set their stamp on the legal status of
these archipelagos.
The bulk of the works hitherto published on this subject have made use of
verifiable data from the most recent past, the period after World War II.
Older historical data have generally been mentioned simply by reviewing
documents drawn up by the States concerned or published by their national
research centres. In this respect, there is a considerable imbalance in favour
of the Chinese argument, which is the best publicized.
In this book, an effort has been made to take stock of the arguments
expounded by the various States concerned and also to verify the historical
arguments of the past using documentation in the French National School of
Far Eastern Studies and French archives from the colonial period. This
redressing of the balance as regards the sources consulted shows the case in
a different light.
We will now see what the result of this is by posing the following two
questions:
What picture can be given of the rights of each of the parties concerned?
What prospects does contemporary international law offer for settling a
dispute of such complexity?
SUBSTANCE OF RIGHTS TO THE ARCHIPELAGOS
The facts illuminated through the various historical phases considered above
confirm that the cases of the Paracels and the Spratlys must be dealt with
separately.
The case of the Paracels
As regards the Paracels, only two States are concerned: Vietnam and China.
The rights of Vietnam are ancient and well founded even if China's
claims assumed more concrete form through its occupation by force of part
of the archipelago 39 years ago and of the rest 21 years ago.
136 Chapter IV
The detailed examination of the historical titles attempted in the

preceding pages, based on the most reliable documents, shows that the
Vietnamese title has been clearly asserted since the beginning of the 18th
century. The arguments put forward so far by China do not make it possible
to confirm the existence of ancient legal ties between Imperial China and
these territories such that they could be interpreted nowadays as ties of
sovereignty. Vietnam's vassalage with respect to China, terminated with
China's consent on the advent of France, could on no account leave China
with any rights to the islands. While the Vietnamese title may have been
weakened by the indifference of the colonial power during the early decades
of colonization, it does not amount to effective abandonment since, from a
certain point, France effectively administered the Paracels and clearly
asserted its rights.
China's interest in these uninhabited lands only amounts to a claim of
sovereignty after 1909. This claim was asserted in the face of a Vietnamese
title established two centuries earlier.
During the first half of the 20th century, there were in all only three
occasions when China expressed a desire to exercise its rights over the
Paracels (1909, 1921, 1932), and even these were only made possible by
lack of effective opposition from the colonial power.
The thrust of the whole corpus of the law of decolonization built up under
the aegis of the United Nations has been to protect peoples, particularly
when they have fallen under the hegemony of another power, from actions
which might breach their inalienable rights.
The period of World War II and the following years created circum-
stances propitious to a (military) change of hands in the uninhabited islands
on a number of occasions.
The French authorities, and simultaneously with them, the representatives
of Vietnam, and, after the departure of the French, the representatives of
Vietnam alone, occupied the islands as far as political circumstances
permitted them to do and never ceased to assert their rights. The only
hesitations on this score were after the second Vietnamese war, in certain
statements by the representatives of the Democratic Republic of Vietnam.
Although these can be explained by the circumstances and by the extreme
dependence of that Government on China, they were not such as to affect the
conclusion that Vietnam has a title superior to China's.
By its silence in the Cairo Declaration or in its bilateral peace treaty with
Japan, Nationalist China abandoned the assertion of its rights. The claim of
the People's Republic of China which emerged in 1951 has the appearance
neither of the assertion of a title taken over from an earlier period nor of a
Conclusions and Bases for a Settlement 137
right derived from effective administration. In its favour, however, there

remains an occupation by force in 1956 and another in 1974. Yet there are
two obstacles to the transformation of this occupation into a title. The first
lies in the contemporary peremptory norm of the prohibition of the use of
force against the territorial integrity of a State. The second resides in
Vietnam's reiterated declarations of protest against this unlawful occupation
with a view to preserving its ancient rights, since:
Possession of a territory does not cease solely by virtue of the
disappearance of its material manifestation, which must be
accompanied by the intention to abandon it.1
The case of the Spratlys
The situation of the Spratlys is quite different from that of the Paracels.
Irrefutable proof of the two archipelagos being treated as one in the
administration of the emperors of Annam is hard to find, even if there are
traces of the subdivision of the maritime companies on the basis of different
geographical areas. Whatever the pre-colonial situation may have been, the
French attitude has not been the same for the two archipelagos.
Liberated by the absence of any Chinese claim to the islands further
away, France, during the colonial period, was less hesitant about manifesting
its presence than in the Paracels.
It asserted its rights as first occupant and not as the successor of Annam.
But it was not challenged by anyone (not even by Great Britain, which
abandoned all claim), so that French rights were very soundly established.
The claim of the Philippines was not voiced until the 1970s. Taiwan's
claim is highly opportunistic, linked as it is to Taiwan's relief of the islands
from Japanese troops after the War (although Taiwan was not authorized to
take such action). Malaysia's claim is of more recent date.
The People's Republic of China began to speak of a claim to the Spratlys
in 1951. But this was an abstract claim, devoid of any trace of effective
occupation of these islands remote from Chinese territory. Not until very
recently (1988) were there the beginnings of partial occupation, as the result
of military action.
Hence it can be said of the Chinese attitude between 1951 and 1988 that
'the mere fact of challenging territorial sovereignty does not create a title for
1
Paul Fauchille, 'Le conflit de limites entre le Bresil et la Grande-Bretagne' (1904) Revue
generate de droit international public at p. 138.
138 Chapter IV
the State adopting this attitude'.2 As for the armed occupation, one can but
call to mind the strong prohibition of the occupation of territories by force in
contemporary international law.
However, where the Spratlys are concerned, the problem nevertheless
remains of the immense area of this archipelago (160,000 square kilo-
metres), of its relative unity and of the effective extent of the occupation by
the various States claiming title.
Two hypotheses need to be considered regarding Vietnam's contemporary
claim. If the evidence of the administration of the islands by the emperors of
Annam is adequate, Vietnam does have a title to the Spratlys which has the
same validity as its title to the Paracels. For in that case, it was through
ignorance of Vietnamese history that France claimed to occupy this archi-
pelago as terra nullius. And the succession of the rights must be restored. On
the other hand, if Vietnam's ancient rights to the Spratlys are challenged, the
French argument that it 'discovered' the archipelago raises a different set of
problems. Whatever its origin, the French title was accompanied by concrete
occupation which ceased only to be succeeded by the Vietnamese occupation
in 1956. True, Taiwan and the Philippines then also established a foothold in
the archipelago.
France's position has never been totally clarified. The French argument
being that of sovereignty as first occupant, that sovereignty can only be
terminated if expressly abandoned. Despite their confusion, can the debates,
particularly in the Assembly of the French Union in 1952, be regarded as
heralding a desire to abandon the islands? And is that desire confirmed by
France's diplomatic silence on this matter? Or, on the contrary, must it be
accepted that the case regarding the Spratlys will not be definitively settled
unless France once again makes its views known?
Supposing France were definitively removed from this case, cannot
Vietnam be regarded as successor to the rights established by France,3 on the
basis both of the Vietnamese occupation hard on the heels of the
independence of South Vietnam and also of the fact that France had adminis-
tratively attached the islands to Cochin China? And that therefore the islands
could but share the fate of the territory to which they were attached?
However, if the Franco-Vietnamese title, on the basis of one argument or
another, proves the most ancient and soundly based, does it apply to all the
lands? Is there room for other partial occupations which took place at a later
date, but which might nevertheless have engendered rights - for instance on
2
Suzanne Bastid, op. cit., p. 451.
3
The decree of 21 December 1933 attached the islets to one of the provinces of Cochin
China: Ba Ria.
the periphery of this vast set of islands, where these shards of land lie just off
the coasts of other States such as the Philippines or Malaysia? A purely legal
answer to this question is difficult.
On the other hand, it is easy to see that China's claim to the Spratlys has
no legal basis and is just one aspect of a maritime expansion policy. On this
point, the People's Republic of China even overlooks its deep-seated
antagonism to Taiwan and endorses the claims of the rival Chinese Govern-
ment.4
PROSPECTS FOR A SETTLEMENT

International law requires States to negotiate. This is the meaning of Article
33 of the Charter, to which the various parties involved in this dispute are
signatories.
The parties to any dispute, the continuance of which is likely to
endanger the maintenance of international peace and security,
shall, first of all, seek a solution by negotiation, enquiry,
mediation, conciliation, arbitration, judicial settlement, resort to
regional agencies or arrangements, or other peaceful means of
their own choice. The Security Council shall, when it deems
necessary, call upon the parties to settle their dispute by such
means.
Yet it is impossible to overlook the fact that the Security Council largely
lacks the objectivity required of a decision-making organ, owing to the
special place given to permanent members armed with the right of veto.
True, the Charter does provide, in Article 27, paragraph 3, for the abstention
of any member involved in a dispute, but there remains the considerable
political might of the Great Powers.
Hence China, a permanent member, has prevented the Security Council
from taking any initiative in this field, particularly in 1988, when Vietnam
attempted to bring the matter before the Council.
Negotiations do not therefore depend on mediation by third parries and
will only be possible bilaterally for the Paracels, and, for the Spratlys,
multilaterally between the States concerned. Negotiations would depend on a
genuine will to negotiate.
4
See Michael Bennett, 'The People's Republic of China and the Use of International Law
in the Spratly Islands Dispute' (1991-1992) Stanford Journal of International Law at p.
448.
140 Chapter IV
True, the development and reinforcement of regional organizations,

particularly with Vietnam's recent entry into ASEAN (1995), may favour
such negotiations.
Yet in the present state of affairs the prospect of settling the dispute on a
negotiated basis is almost nil. In the case of the Paracels, China maintains
that there is nothing to negotiate. It holds the archipelago by military force,
backing this up by an emphatic claim to sovereignty.
In the case of the Spratlys, bilateral or multilateral diplomatic meetings
since 1988 have prompted China to develop the idea of reserving the issue of
sovereignty and negotiating a formula which would allow the States
concerned jointly to develop the wealth of the area. The other States do not
agree, but have thus reached an impasse. Of all the partners involved,
Vietnam is the one which appears to be the most tempted by a judicial
settlement. However, access to the International Court of Justice is voluntary,
between States which have accepted in advance the compulsory jurisdiction
clause, which is a general way of recognizing the jurisdiction of the judicial
organ of the United Nations. Neither China, nor Vietnam, nor Malaysia have
signed this clause. The Philippines recognized the jurisdiction of the Court in
1972, but with reservations which exclude the present dispute.5 It is not
therefore possible for one of the States concerned to bring the matter before
the Court by means of a unilateral application, and to benefit from the
Court's jurisdiction on that basis. There remains a second possibility of
bringing the matter before the Court (or any other international tribunal
which States might wish to approach), namely a special agreement. Under
this, two or more States agree between themselves to bring a dispute before
the Court (the terms of the dispute being defined by the parties themselves).
The current circumstances hardly favour such a solution. This is regrettable.
On this point, the sovereignty of States impedes any significant advance in
international law and in its role in peace between nations, since true law can
hardly exist without conflicts being justiciable. The option offered to States
on the pretext of scrupulously respecting their sovereignty, namely of
refusing to submit their conflicts with other States to a tribunal, renders
international law crude and imperfect.
Such a tribunal does however exist, in the institution of the International
Court of Justice, the judicial organ of the United Nations. China has a judge
at the Court. Therefore it does not reject the principle of the existence of
such a court. In a host of documents China has stated loud and clear that it
has irrefutable evidence of its ancient historical rights to the archipelagos.
5
See the declaration by the Philippines, (1993-1994) Yearbook of the International Court
of Justice, at pp. 117-118.
What has it to fear in expounding its arguments before a broad court such as
the one in The Hague?
Granted, this study has shown that Vietnam's rights, particularly its rights
to the Paracels, are more certain, being more clearly established on the basis
of the available documents. If China has further, unpublished documents at
its disposal, what does it have to fear in submitting them to the Court? If
nothing in its history has created a title in its favour more solid than that
constructed by the Emperors of Annam, the judicial disputatio would enable
the judges to establish, on the basis of events since French colonization, how
that title has been maintained. Keeping the Paracels by force without
clarifying these questions means fuelling a future source of discord
comparable, all other things being equal, to the Falklands.
In the case of the Spratlys, there again, expounding legal arguments under
the spotlight of judicial proceedings would be a factor of peace, whereas the
current, highly unstable situation is pregnant with menace.
In the case of the Spratlys, a special agreement between any two of the
five contenders (six if we count Brunei) would be most likely be a powerful
factor triggering general proceedings for a settlement. This would place the
other claimant States in an embarrassing situation: either they would run the
risk of the islands' fate being settled by the Court without them and perhaps
to their disadvantage, or, by applying for permission to intervene, they would
also become party to the proceedings so that they could set out their rights
and seek to protect them.
Were this to happen, the case of the Spratlys as a whole would be brought
before the Court.
The Court's task would not be easy, since only Vietnam and France have
acquired true historical titles to the archipelago, even if the extent and scope
of such titles are uncertain. Whatever solution is found will require a genuine
effort of imagination and co-operation by both the parties and the judges.
One solution would be to create a condominium, a legal regime
established by treaty, under which several States would jointly exercise over
a single territory the powers normally exercised by a single State. Power
would be shared, something which might be achieved under various arrange-
ments. It is a compromise solution, embodying international collaboration
restricted to the management of a single space. By reducing political tension,
a condominium would be a bulwark against the threat of regional imperial-
ism by a single power.
These risks are great in the South China Sea owing to the growing
strength of the Chinese Navy.
142 Chapter IV
A condominium over the Spratlys might take the form of an agreement

between all States concerned to create an international joint development
agency with a twofold objective: securing the safety of navigation in the
region by maintaining buoys and lighthouses; managing the resources of the
sea or seabed which, under the Convention on the Law of the Sea, belong to
the holder of title to sovereignty over land above sea level. Sovereignty
would be jointly managed by the group of States having concluded the
agreement governing the condominium. This would lead to the award of
mining and fisheries concessions.
The agency would be financed by contributions from the States parties to
the condominium, enabling it to operate. The agency would redistribute the
profits to the States parties.
The crucial point would be fixing States' respective shares in the agency,
such shares controlling their contribution of the budget but also their share of
the profits.
It will not be easy to determine the shares of the various parties, since
there are not only true islands but also tiny slivers of land scattered over a
large maritime area, alongside the barely submerged shoals and banks which
pose such a threat to navigation and which geological movement might push
clear of the water at some time in the future.6
In an endeavour to overcome this real difficulty, some authors have
suggested sectors as a solution,7 whereby States would share exploration
rights in delimited zones, based on the main islands under their control. The
same authors endorse the Chinese proposal for joint development of the area,
leaving settlement of the question of sovereignty in abeyance. They thus
suggest a formula for sharing development rights between the States of the
region, totally disregarding previously acquired titles.8
These various solutions and the very fact of entrusting the framing of
such solutions to the international Court of Justice may appear Utopian at
present, but with the unrest facing the world, and the speed of change, it may
perhaps soon appear imperative, in order to rescue States from the impasse
into which their rivalries have led them. The future will belong to solutions
which take account of interdependence. The road leading to a solution is
6
For the Chinese claim on this point, see Zhou, op. cit., p. 544.
7
Mark J. Valencia, South-East Asian Seas: Oil under Troubled Waters, (Oxford, New
York: Oxford University Press, 1983), pp. 124 et seq.
8
See Mark Valencia, Jon van Dyke & Noel Ludwig, Sharing the Resources of the South
China Sea (Martinus Nijhoff, 1997). For an analysis which insists in taking legal titles
into account, see Jonathan I. Charney, 'Central East Asian Maritime Boundaries and the
Law of the Sea' (1995) American Journal of International Law, vol. 89, n°4, at p. 729.
negotiation in good faith, not the option of superior force. This is why
China's current political position, the proposal jointly to develop the wealth
of the archipelago, whilst reserving the question of sovereignty, is
unacceptable to the partners, reflecting as it clearly does the hegemonic
claim that might is right.
The peoples of the region, embarking impatiently and eagerly on the
journey to long-awaited economic growth, need all their natural resources.
The resources of the sea are decisive. Their peaceful exploitation requires the
delimitation of maritime spaces. Yet there can be no delimitation unless the
question of sovereignty is settled first. This indicates how important the
question of sovereignty over the Paracels and Spratlys is. It is hoped that this
book has helped to shed some light on it.
Bibliography
GENERAL TEXTS
Apollis, G., L'emprise maritime de l'Etat cotier, Paris: Pedone, 1981.
Bastid, S., 'Les problemes territoriaux dans la jurisprudence de la Cour
Internationale de Justice', RCADI (Recueildes Cours de l'Academie de
Droit International, vol. 107 (1962), 360 etseq.
Bedjaoui, M. (ed.) Droit international. Bilan et perspectives, Paris: Pedone,
UNESCO, 1991.
Cavare, L., Le droit international public positif, Paris: Pedone, 1961.
Chaumont, C, 'Cours general de droit international public', RCADI (Recueil
des Cours de l'Academie de Droit International), vol. 129, (1970), 339 et
seq.
Combacau, J. and Sur, S., Droit international public, Paris: Montchrestien,
1993.
Deveria, Histoire des relations de la Chine avec l'Annam- Vietnam, Paris:
1880, republished 1969.
Devillers, P., Paris-Saigon-Hanoi -Les archives de la guerre 1944-1947,
Paris: Gallimard/Julliard, 1988.
Dupuy, RJ. and Vignes, D., Traite du nouveau droit de la mer, Paris,
Brussels: Economica-Bruylant, 1985.
Foumiau, C.,Annam-Tonkin. 1885-1896, Paris: L'Harmattan, 1989.
Greenfield, J., China's Practice in the Law of the Sea, Oxford: Clarendon
Press, 1992.
Guyomar, G., Commentaire du reglement de la Cour Internationale de
Justice, Paris: Pedone, 1983.
Joyaux, R, Geopolitique de l'Extreme-Orient, 2 volumes, Paris: Complexe,
1991-1993.
146 Bibliography
Kohen, M.G., Possession contestee et souverainete territoriale, Publications

of the University Institute of Higher International Studies of Geneva,
Paris: Presses Universitaires de France, 1997.
Lucchini, L. and Voelckel, M., Droit de la mer, vol. I, La mer et son droit. Les
Espaces maritimes, Paris: Pedone, 1990.
Nguyen Huu Tru, Quelques problemes de succession d'Etats concernant le
Vietnam, Brussels: Bruylant, 1970.
Nguyen Khac Vien, Vietnam. Une longue histoire, Hanoi: Foreign Language
Publications, 1987.
Nguyen Quoc Dinh, Daillier, P. and Pellet, A., Droit international public,
Paris: L.G.D.J., 1994
Prescott, J.R.V., The Maritime Political Boundaries of the World, London,
New York: Methuen, 1985.
Roche, A.G., The Minquiers and Ecrehos Case, Geneva: thesis No. 115,
1959.
Ruscio, A., Vietnam -lI'histoire - la terre - les homines, Paris: L'Harmattan,
1989.
Thierry, H., Combacau, J., Sur S. and Vallee C, Droit international public,
Paris: Montchrestien, 1979.
Xing Qu, Les relations franco-chinoises de 1949 a 1955, thesis at the Institut
d'Etudes Politiques, Paris, 1992.
ARTICLES BY LEGAL COMMENTATORS ON GENERAL ISSUES

Baral, J., 'L'acquiescement dans la jurisprudence internationale', Annuaire
Francais de Droit International (1985), 389 et seq.
Briscoe, J., 'Islands in Maritime Boundary Delimitation', Ocean Yearbook!
(1988).
Cohen-Jonathan, G., 'Les iles Falkland (Malouines)', Annuaire Francais de
Droit International (1972) 235 etseq.
von der Heydte, F.A.F., 'Discovery, Symbolic Annexation and Virtual
Effectiveness in International Law', American Journal of International
Law (1935), 448 et seq.
Fitzmaurice, Sir G., 'The Law and Procedure of the International Court of
Justice', British Yearbook of International Law (1955-1956), 20 et seq.
Khadduri, M., 'Iran's Claim to the Sovereignty of Bahrain', American
Journal of International Law (1951), 631 et seq.
Bibliography 147
Oraison, A., 'A propos du differend franco-malgache sur les iles eparses du
Canal de Mozambique', Revue generale de Droit International Public
(1981) 465 et seq.
Orent, B. and Reinsch, P., 'Sovereignty over Islands in the Pacific',
American Journal of International Law (1941), 443 et seq.
Schwarzenberger, G., 'Title to Territory: Response to a Challenge',
American Journal of International Law (1957), 308 et seq.
In general, the column 'Chronique des faits internationaux' in Revue
generale de Droit International Public.
BOOKS AND ARTICLES ON THE QUESTION OF THE ARCHIPELAGOS

OF THE SOUTH CHINA SEA
Beauvois, M., 'Les archipels Paracels et Spratleys', Saigon: Vietnam Press,

1971. Documentation Francaise. Problemes politiques et sociaux (March
1973).
Bennett, M., "The People's Republic of China and the Use of International
Law in the Spratly Islands Dispute', Stanford Journal of International
Law, vol. 28 (1991-1992), 425 et seq.
Chao, J.K.T., 'South China Sea: Boundary Problems Relating to the Nansha
and Hsisha Islands', Chinese Yearbook of International Law, vol. 9
(1989-1990) 67 et seq.
Charney, J.I., 'Central East Asian Maritime Boundaries and the Law of the
Sea', American Journal of International Law, vol. 89, No. 4 (October
1998), 724.
Cheng, T., 'The dispute over the South China Sea Islands', Texas
International Law Journal, vol. 10, No. 1 (1975).
Chi Kin Lo, China's Position towards Territorial Disputes. The case of the
South China Sea Islands, London: Routledge, 1989.
Chiu Hung Dah, 'Delimiting the Seabed and Future Shipping Routes, China
Quarterly No. 72 (December 1977) and 'Exploration and Exploitation of
Ocean Resources in the Western Pacific'. Korean Journal of
International Studies, Seoul, vol. XV, No. 1 (1983-1984).
Couteau-Begarie, H., Geostrategie du Pacifique, Paris: Economica, 1987.
Ferrier, J.P., 'Le conflit des iles Paracels et le probleme de la souverainete
sur les iles inhabitees', Annuaire Francais de Droit International (1975),
173 et seq.
148 Bibliography
Focsaneanu, L., 'Les traites de paix du Japon', Annuaire Francois de Droit

International (I960), 256 et seq.
Garver, J.W., 'China's Push through the South China Sea. The Interaction of
Bureaucratic and National Interests', The China Quarterly (1992), 999 et
seq.
Gomane, J.P., 'Incidents en mer de Chine meridionale', L'Afrique et l'Asie
modernes (1974), 48 et seq.
Heinzig, D., Disputed Islands in the South China Sea, Wiesbaden: Otto
Harrassowith and Hamburg: Institute of Asian Affairs.
Hurel, A., Le iles Spratleys: une source de conflit en Asie du Sud-Est, Paris;
Memoire, 1994.
Jianming Shen, 'International Law Rule and Historical Evidence Supporting
China's Title to the South China Sea Islands', Hasting International and
Comparative Law Review, vol. 21, No. 1 (1997).
Katchen, M.H., 'The Spratly Islands and the Law of the Sea: Dangerous
Ground for Asian Peace', Asian Survey (December 1977) 1167 et seq.
Kittichaisaree, K., The Law of the Sea and Maritime Boundary Delimitation
in Southeast Asia, Oxford: Oxford University Press, 1987.
Kuan-Tsyh Yu, S., 'Who Owns the Paracels and Spratlys? An Evaluation of
the Nature and Legal Basis of the Conflicting Territorial Claims', Chinese
Yearbook of International Law, vol. 9 (1989 1990) 1 etseq.
Labrousse, H., 'Les tensions en mer de Chine du Sud', Defense Rationale
(February 1988) 109 et seq.
'Les ambitions maritimes de la Chine', Defense Nationale (February
1994), 331 et seq.
'Quelle solution pour les Spratleys?', Defense Nationale (December
1994), 129 et seq.
Lafont, P.B. (ed.), Les frontieres du Vietnam, Paris: L'Harmattan, 1989.
Lapique, P.A., A propos de iles Paracels, Saigon: Les editions d'Extreme-
Asie, 1929. Lasserre, F., Le dragon et la mer. Strategies geopolitiques
chinoises en Mer
de Chine du Sud, Montreal: Harmattan Inc., 1996. Lechervy, C,
'Indochine: les nouvelles frontieres', Politique etrangere, No.
3(1992), 585 et seq. Le Thanh Khe, L'affaire des iles Paracels et
Spratleys devant le droit
international, Institut International d'Etudes et de Recherches
Diplomatiques, 1958.
Bibliography 149
Lee Yong Leng, 'Offshore Boundary Disputes in Southeast Asia', Journal of

Southeast Asia (November 1978).
Luchaire, E, 'Le probleme des frontieres chinoises', Bulletin de l'Institut
International d'Administration Politique (October-December 1968).
Madrolle, C, 'La question de Hainan et des Paracels', Revue Politique
Etrangere (1939).
Marston, G., 'Abandonment of Territorial Claims: the Cases of Bouvet and
Spratly Islands', British Yearbook of International Law, L VII (1986), 335
et seq.
Milivojevic, M., 'The Spratly and Paracel Islands Conflict', Survival (1989),
70 et seq.
Niquet, V., 'Le Vietnam face au monde chinois', Defense Nationale (January
1994), 131 et seq.
Ocampo-Kalfors, S., 'Easing towards Conflict', Far Eastern Economic
Review (28 April 1983).
O'Connell, D.P., 'The Status of Formosa and the Chinese Recognition
Problem', American Journal of International Law (1956), 405 et seq.
Pan Shiying, The Petropolitics of the Nansha Islands - China's Indisputable
Legal Case, published and distributed by Economic Information Agency,
July 1996, 196 pages.
Park, C-H., 'The South China Sea Disputes: Who Owns the Islands and the
Natural Resources?', Ocean Development and International Law, vol. 5,
No. 1 (1978) 28 er.se?. Rousseau, C, 'Chronique des faits internationaux',
Revue generale de Droit
International Public (1972), 826 et seq. Saix, O., 'Iles Paracels',
Terre-Air-Mer-La geographie, LX No. 5 and 6
(Nov-Dec 1933).
Samuels, M.S., Contest for the South China Sea, New York and London:
Methuen, 1982.
Sauvaire Jourdan, C, 'Les Paracels, infiniment petits de notre domaine
colonial', La Nature (1 November 1933).
Segal, G., 'Asie de 1'Est: le nouveau paysage strategique', Politique
etrangere, No. 3 (1992), 551 et seq.
Teh Juang Chang, 'China's Claim of Sovereignty over the Spratly and
Paracel Islands. A Historical and Legal Perspective', Case Western
Reserve Journal of International Law, vol. 23 (1991), 399 et seq.
150 Bibliography
Thomas, B.L., 'The Spratly Islands Imbroglio: A Tangled Web of Conflict',

in: International Boundaries and Boundary Conflict Resolution,
conference proceedings, 1989.
Tra Dih Gian, 'The Geographical and Political Aspects of Eastern Asia.
Problems and prospects', Southeast Asia (30 August 1990).
Tu Dang Minh Thu, Le differend des iles Paracels et Spratleys, Ses
problemes juridiques, Paris: Memoire, 1976.
Valencia, M.J., South East Asian Seas: Oil under Troubled Waters, Oxford
and New York: Oxford University Press, 1985.
Valencia, M., van Dyke, J. and Ludwig, N., Sharing the Resources of the
South China Sea, Martinus Nijhoff, 1997.
van Dyke, J.M. and Bennett, D.L., Islands and the Delimitation of Ocean
Space in the South China Sea, mimeographed paper.
Vo Long Te, Les archipels Hoang Sa et Truong Sa selon les anciens
ouvrages vietnamiens d'histoire et de geographie, Saigon, 1974.
Yamane, H., 'Le Japon et la peninsule indochinoise', Defense Nationale
(January 1988).
Zhou Jian, Les frontieres maritimes de la Chine, thesis, 2 vol., University of
Paris X, 1991.
To this set of articles or chapters of books on the question of the Paracels and
Spratlys must be added very many articles found in legal journals or in the
press, in particular:
L 'Asie Francaise
Dong Thanh
Le Courrier du Vietnam
L 'eveil de l'Indochine
Far Eastern Economic Review
Le Figaro
Le Journal des Coloniaux - l'armee coloniale
Liberation
Mer et Colonies
Le Monde
Le Monde colonial illustre
Le Monde Diplomatique
Newsweek
Bibliography 151
Pekin - Informations
La Revue generale de droit international public (international events
column)
Temps nouveaux
ARBITRAL JUDGMENTS OR AWARDS

Aves Island case
Netherlands - Venezuela
Award of 30 June 1865
Bulama Island case
United Kingdom - Portugal
Award of 21 April 1870
Case concerning the frontier between British Guiana and Brazil
United Kingdom - Brazil
Award of 6 June 1904
Island of Palmas case
United States - Netherlands
Award of 4 April 1928
Clipperton Island case
Mexico - France Award
of 28 January 1931
Minquiers and Ecrehos case
France - United Kingdom Judgment of the International Court of
Justice of 17 November 1953
Eastern Greenland case
Denmark - Norway
Judgment of the Permanent Court of International Justice of 5 April 1933
Western Sahara case Opinion of the International Court of Justice of 16
October 1975
Case concerning the delimitation of the maritime frontier between Guinea
and Guinea-Bissau
Judgment of 14 February 1985
152 Bibliography
MISCELLANEOUS
Ad hoc documents produced by the Vietnamese government to

explain its position;
- Note by the Foreign Ministry of the Socialist Republic of Vietnam on

provocations and incursions into Vietnamese territory by the Chinese
authorities in the frontier region, Bulletin du Vietnam, Paris, 15/31 March
1979.
- Vietnam's Sovereignty over the Hoang Sa and Truong Sa Archipelagos,
Information and Press Department, Ministry of Foreign Affairs, Hanoi,
1979.
- Les archipels Hoang Sa and Truong Sa, territoire vietnamien, Ministry of
Foreign Affairs of the Socialist Republic of Vietnam, 1981.
- Les archipels Hoang Sa et Truong Sa (Paracels et Spratley), published by
the Courrier du Vietnam, Hanoi, 1984.
- Les archipels Hoang Sa (Paracels) et Truong Sa (Spratlys) et le droit
international.
Documents expressing the Chinese positions
- Les nouvelles sinologiques, 1988, No. 5,6,7,8,9,10.

- La souverainete incontestable de la Chine sur les iles Xisha et les iles
Nansha, document published by the Foreign Ministry of the People's
Republic of China, 30 January 1980.
Documents relating to the draft peace treaty with Japan and the
San Francisco Conference (1951)
- Note to the Soviet government from the Chinese government, 22 March

1951.
- Statement by the Foreign Minister of the People's Republic of China, Chou
en-Lai, on the draft peace treaty with Japan and the San Francisco
Conference (Beijing, 15 August 1951).
- Report of debates in the Parliamentary Assembly of the Union Francaise,
25 March 1952.
Bibliography 153
United Nations documents
-A/43/346/2 May 1988 -

A/43/363/16 May 1988
ARCHIVE DOCUMENTS The
main documents concerning this affair were found:
In the archives of the French Foreign Ministry
Series Asia 1918, 1929

AS- 18-40 China 797, 40-55 China
N.S. China 96, 126, 559-568, 608-612, 597-601
N.S. Indochina 4, 5, 6, 7, 11, 17,18, 19-25, 31, 33, 34 volume No. 312
Asia-Oceania, series E, box 117
In the overseas archives (Aix-en-Provence)
Boxes Indochina 32, 34, 35, 36

N.F. 225, 268, 271, 610, 684, 662, 1010, 1018, 1024, 1025, 1026, 1859
I.C. boxes 306, 308, 227, 261, 309
MAPS
After a systematic trawl through the card-index of the maps department of

the National Library in Paris, the following maps were consulted:
Ge D 9210 Guillaume le Testu, 1554
Ge D 8693 Netherlands, possessions, 17th century
Ge B 220 Dutch naval chart, 18th century
Ge FF 13341 (89) Indochina, 17th century
Ge FF 7909 German map, 1867
Ge D 7552 Tonkin and Cochin China, Paris 1863
Ge D 24950 Indochina, naval charts, 1880
Ge C 21797 Naval charts, 1881
Ge D 817 De Lanessan, 1888
154 Bibliography
Ge C 3067 Indochina, 1893

Ge B 372 Paire expedition, 1893
Ge AA 25 Vidal Labloche, 1897
Ge C 15245 Girard and Barrere
Ge D 20526 IGN, manual for the use of troops, 1947
Ge CC 3506 Indochina, administration, 1939
Ge D 21832 Indochina, airstrips, 1951
Ge C 5904 Aeronautical Indochina, 1936
Ge D 21831 Indochina, aviation, radio, 1951
Ge DD 2987 China Sea, 1745
Ge D 3610 China Sea, 1792
Ge CC 2301(23) China Sea 1821
Ge C 10431 China Sea, coasts, 1712
Ge C 17228 Indochina, bathymetric and fisheries map
Ge C 18375 Political map of Indochina, 1951
Ge C 16640 Provinces of Indochina, 1940
Ge C 4272 Indochina, typhoons
Ge DD 2987 (7212) China Sea, 1643
Res. Ge AA 1318 China Sea, Peter Goes, 1680
Res. GeB219 Nautical chart, China Sea, late 17th century
Res. Ge B 220 Nautical chart, China Sea, late 17th century
Res. Ge B 214 Dutch nautical chart, late 17th century
Hydrographical map, 18th century
Ge B 1509(6836)
China Sea, 1740
Ge DD 2987 B (7160.61)
Paracels (Western Group) by D. Rops,
Ge 2301/17
Lieutenant of the Bombay Marine, 1808
IGN, 1945
Ge C 2280 Ge
Air infrastructure of Indochina, 1939
C 15165 Ge C
Geographical Service of Indochina, 1911
4269 Ge CC
April 1903
556
The following portfolios were also consulted at the National Library (maps
department):
Portfolios 180, 181, 182
The following portfolios were also consulted at the National Library (maps
department):
Portfolios 180, 181, 182
Annexes
1 Map of the South China Sea

2 Chinese map showing China's maritime claims
2A Illustration of these claims
3 Map of the Paracels
4 List of islands and islets
5 Letter from the Governor General of Indochina to the Minister for the
Colonies, 20 March 1930
6 Map showing the occupation of the Spratlys (B.L. Thomas)
7 Letter from Captain de Kergariou Locmaria, 28 August 1788
8 Letter from the Chief Resident of Annam to the Governor General of
Indochina, 22 January 1929
9 Map from the 14th year of the reign of Minh Mang
10 Note from the Legation of the Chinese Republic in France,
29 September 1932
11 Internal Ministry of Foreign Affairs Note to the Directorate for Asia
from the Legal Adviser, 25 May 1950
12 Note from the Government General of Indochina, Directorate for
Political and Indigenous Affairs, 6 May 1921
13 Note from Mr Beauvais, Consulate of France in Canton, 4 May 1909
14 Letter from the official in charge of the Consulate of France in Canton
to the President du Conseil, Minister for Foreign Affairs, 6 October
1921
15 Letter from Mr Beauvais, Consul of France in Canton, to the Minister
for Foreign Affairs, 4 May 1909
16 Letter from the Minister for the Colonies to the President du Conseil,
Minister for Foreign Affairs, 18 April 1921
17 Letter from the Acting Governor General of Indochina to the Minister
for the Colonies, 26 December 1927
18 Note from Mr Bourgouin, 8 March 1928
156 Annexes
19 Note to the Under-Directorate for Asia-Oceania, 26 November 1928

20 Letter from the Acting Governor General of Indochina to the Minister
for the Colonies, 17 December 1928
21 Letter from the Minister for Foreign Affairs to the Minister for the
Colonies, 26 February 1929
22 Letter from the Minister for the Navy, acting Minister for the
Colonies, to the Minister for Foreign Affairs, 18 February 1929
23 Telegram of 3 April 1929
24 Telegram of 14 March 1930
25 Letter from the Minister Plenipotentiary of the French Republic in
China to the Minister for Foreign Affairs, 28 July 1930
26 Letter from the Governor General of Indochina to the Minister for the
Colonies, 18 October 1930
27 Telegram of 4 July 1931
28 Decree by the Governor General of Indochina, 5 May 1939
30 Decree by the Governor of Cochin China, 21 December 1933
31 Letter from the Minister for Defence to the Minister for Foreign
Affairs, 30 March 1932
32 Note from the Ministry of Foreign Affairs, Directorate for Political
Affairs and Trade (Asia), 10 August 1940
33 Letter from General Juin, Chief of Staff of National Defence, to the
Chairman of the Committee on Indochina, 7 October 1946
34 Report of French naval mission to Pattle Island
36 Wire from Agence France Presse of 31 May 1947 and telegram of
3 June 1947
37 Telegram of 25 January 1951
38 Note from the Legal Department, 6 September 1946
39 Letter from the Minister of State with responsibility for relations with
Associated States to the Minister for Overseas Territories, 7 May 1951
40 Letter from General Jacquot to the Secretary of State with
responsibility for relations with Associated States, 16 June 1955
41 Letter from the Wai Kiao Pou to the Consulate of France in Canton,
29April l949
Annexes 157
42 Note from the Directorate for Asia-Oceania, 15 May 1950

43 Telegram of 23 April 1949
ANNEX 1
Map 2: South China Sea
Hung Dah Chiu, South China Islands. Implications for delimiting the sea bed
and future shipping routes
ANNEX 2
ANNEX 2A
Chinese Claims
Legend: Maximum claim to offshore territory
ANNEX 3
ANNEX 4
SITUATION OF THE PARACELS AND SPRATLYS AT THE END OF 1993
I- HOANG SA/ PARACELS/ XISHA ARCHIPELAGO

Islands and banks
CÁC ĐẢO, BÃI CHÍNH
Vietnamese Name English Name Chinese Name
1. NHÓM AN VINH AMPHITR1TE GROUP XUANDE QUNDAO
Cốn Cát Tây West Sand Xi Shazhou
Đảo Cây Tree Island Zhaoshu Dao
ĐảoBắc North Island Bei Dao
Đảo Trung Middle Island Zhong Dao
Cốn Cát Nam South Sand Nan Shazhou
Đảo Phú Lâm Woody Island Yongxing Dao
Đảo Linh Côn Lincoln Island Dong Dao
Đảo Nam South Island Nan Dao
2. NHÓM LƯỠI LIỀM CRESCENT GROUP YONGLE QUNDAO

Đá Bắc North Reef Bei Jiao
Đảo Hoàng Sa Pattle Island Shanhu Dao
Đảo Hữu Nhật Robert Island Ganquan Dao
Đảo Quang Ảnh Money Island Jinyin Dao
Đảo Duy Mộng Drummond Island Jingquing Dao
Đảo Quang Hoà Duncan Island Chenghang Dao
Đảo Tri Tôn Triton Island Zhongjian Dao
Bãi Gò Nói Dido Bank Xidu Tan
Bãi Thuỷ Tề Neptuna Bank Beibianlang
Bãi Quảng Nghĩa Jehangir Bank Zhanhan Tan
Bãi Châu Nhai Bremen Bank Binmei Tan
Đá Bông Bay Bombay Reef Langhua Jiao
Đá Chim Yến Vuladdore Reef Yuzhuo Jiao
Đá Lối Discovery Reef Huaguang Jiao
Đá Bạch Quy Passu Keah Island Panshi Yu
Annex 4 163
II- TRUONG SA/ SPRATLYS/ NANSHA ARCHIPELAGO
UNDER VIETNAMESE CONTROL

1. Đá Lát Ladd Reef Riji Jiao
2. Đảo Trường Sa Spratly Island Nanwei Dao
3. Đá Tây West Reef Xi Jiao
4. Đá Giữa Central Reef Zhong Jiao
(Đảo Trường Sa Đông)
5. Đá Đông East Reef Dong Jiao
6. Đảo An Bang Amboyna Cay Anbo Shazhou
7. Bãi đá Thuyền Chài Barque Canada Reef Bai Jiao
8. Đảo Phan Vinh (Hòn Sập) Pearson Reef Bisheng Jiao
9. Đá Tốc Tan Alison Reef Liumen Jiao
10. Đá Núi Le Cornwallis South Reef Nanhua Jiao
11. Đá Tiên Nữ Pigeon Reef (Tennent Reef) Wumie Jiao
12. Đá Lớn Great Discovery Reef Daxian Jiao
13. Đá Len Đao Landsdowne Reef Qiong Jiao
14. Đá Cô Lin Collins Reef Sin Guihan Jiao
15. Đảo Sinh Tồn Cowe Island Jinghong Dao
16. Đảo Sinh Tồn Đông Grierson Island Ranqing Shazhou
(Đá Gri san)
17. Đảo Nam Yết Namyit Island Hongxiu Dao
18. Đảo Sơn Ca Sandy Cay Dunqian Shazhou
19. Đá Núi Thị Petley Reef Bolan Jiao
20. Đảo Song Tử Tây Southwest Cay Nanzi Dao
21. Đá Nam South Reef Nan Jiao
164 Annex 4
UNDER CHINESE CONTROL

1. Đá Chữ Thập Fiery Cross Reef Yongshu Jiao
2. Đá Châu Viên Cuarteron Reef Huayang Jiao
3. Đá Gạc Ma Johnson Reef Chigua Jiao
4. Đá Huy Gơ (Đá Tư Nghĩa) Hughes Reef Dongmen Jiao
5. Đá Ga Ven Gaven Reef Nanxun Jiao
6. Đá Én Đất Eldad Reef Anda Jiao
7. Đá Xu Bi Subi Reef Zhubi Jiao
8. Đá Vành Khăn Mischief Reef Meiji Jiao
UNDER FILIPINO CONTROL

Vietnamese Name English Name Filipino Name
1. Đảo Song Tử DĐông Northeast Cay Parola Island
2. Đảo Dừa ( Bến Lạc) West York Island Likas Island

3. Đảo Thị Tứ Thitu Island Pagasa Island
4. Đảo Bình Nguyên Flat Island Patag Island
5. Đảo Vĩnh Viễn Nanshan Island Lawak Island
6. Đảo Công Đo Commodore Reef Rizal Reef
7. Cồn san hô lan can Lamkian Cay Panata Shoal
(Bãi An Nhơn)
8. Đảo Loại Ta Loaita Island Kota Island
UNDER MALAYSIAN CONTROL

Vietnamese Name English Name Malaysian Name
1. Đá Ky Vân Mariveles Reef Terumbu Mantanani
2. Đá Kiệu Ngựa Ardasier Reef Terumbu Ubi
3. Đá Hoa Lau Swallow Reef Terumbu Layang Layang
From June 1999
4. Đá Én Ca Erica Reef Terumbu Siput
5. Bãi Thám Hiểm Investigator Reef Terumbu Peninjan
Annex 4 165
UNDER TAIWANESE CONTROL

Vietnamese name English name Taiwanese name
Đảo Ba Bình Itu Aba Island Taiping dao
ANNEX 5
Letter No. 704-A-Ex, dated 20 March 1930, from the Governor General of
Indochina, Hanoi, to the Minister for the Colonies, Paris
Further to my telegram No. 501 of 14 March on the sovereign rights

claimed by the Provincial Government of Kwangtung over the Paracel
Islands, I now have the honour to provide a more detailed reply to your letter
No. 184 of 31 December on the same subject.
As a preliminary measure I felt it my duty to advise you briefly, in the
above-mentioned telegram, of the Government General's views on the
matter. It was necessary to acquaint you without delay of the intentions of
the Kwangtung Government, intentions which may be put into effect at any
moment. I was myself informed of them by our Consul in Canton in his
letter No. 17 of 20 February, a copy of which is enclosed.
The decision of the Kwangtung Council is merely the natural progression
of a series of moves by the authorities of South China to assert their rights of
sovereignty over the Paracels. Your Ministry has been duly informed of them
at regular intervals. The first and most significant move occurred in 1909,
when an official ceremony marking the taking of possession was held on the
initiative of the Viceroy of the Two Kwangs. It is likely that the Provincial
Council of Kwangtung now claims that its decision is based on this
ceremony. This taking of possession- on which France, the only power
concerned, has never officially made its views known- would be legally
valid only if the Paracels were res nullius at the time. Yet - unlike 1909 - the
Chinese themselves have not always feigned certainty of this. Following the
wreck in 1898 of the British vessels Bellona and Huneji Maru, which were
then looted by Chinese fishermen, the Viceroy of Canton countered the
protests of the Minister of Great Britain in Peking with the retort: 'The
Paracels are abandoned islands which belong no more to China than to
Annam, they are not administratively attached to any district of Hainan and
no special authority is responsible for policing them.'
This ambiguous reply would seem to imply that the author was not
unaware of the ancient rights to the islands acquired by the Court of Annam.
In your letter No. 184 you requested further information. Wishing to
obtain accurate information myself, I asked the Chief Residency in Annam
for details on 12 January 1929. A copy of Mr Le Fol's reply, dated
22 January 1929, is enclosed. The correspondence incontrovertibly
establishes the priority of the rights of the Hue Court.
Annex 5 167
The Japanese Government was in no doubt about the matter: in 1927 it

requested its Consul General in Hanoi to make an unofficial approach to the
Government General to ascertain the territorial status of several groups of
islands in the China Sea. The Paracels were specifically excluded from this
inquiry, since Mr Kurosawa, on the instructions of his Ministry, was aware
that he could not discuss the status of this archipelago with a representative
of France.
It appears from a report written in 1927 by Mr Krempf, Director of the
Oceanographic and Fisheries Department of Indochina, that the economic
worth of the Paracels has been exaggerated. Since 1920, when a Japanese
company - without permission - simply plundered the more accessible parts
of them, the guano deposits which prompted several applications to the
Government General for concessions have been of only minor importance.
The strategic interest of the archipelago seems quite another matter. I can
do no better than refer you to the above-mentioned letter from the Chief
Resident in Annam, which makes this point remarkably well.
I should add that Indochina would have a further interest in being
mistress of these islands. Their geographical location obliges vessels setting
a course from Saigon to Hong Kong to make a large detour in order to avoid
these reef-strewn waters. As Mr de Monzie said in the letter you forwarded
to me, a radio station on the islands to warn of typhoons would be of the
greatest possible benefit to navigation in Indochinese waters. It is perhaps
worth noting that Governor General Paul Doumer requested the colony's
technical services to look into the possibility of constructing a lighthouse on
the islands as early as 1899. Budgetary considerations alone prevented the
actual construction from going ahead.
To sum up, I agree wholeheartedly with your correspondents in
recognizing that it would be in the interests of France to claim sovereignty
over the Paracels on behalf of Annam. As I told you in my telegram of
14 March, the French Government has actually never definitively abandoned
asserting the historical and geographical rights of the Empire under our
protection. Considerations of expediency alone have so far militated against
the official assertion of these rights. The grounds for temporization, initially
set out in a note to your Ministry in 1921, were reiterated in my telegram No.
135-B of 3 April 1921. At that time, it seemed to me that the climate of
opinion which had been stirred up in both Indochina and France over this
issue did not justify any fresh conclusions. Moreover, it was clearly in our
then interest not to alienate Chinese opinion at the very time when the Sino-
Indochinese Agreements were being negotiated in Nanking.
168 Annex 5
The latter reason has become far less compelling with the adjournment of
the negotiations sine die. I would even add that the conclusions of the letter
of 22 August 1921 from the President du Conseil, Minister for Foreign
Affairs, conclusions which were entirely relevant at the time and which
echoed this Government General's view, are doubtless no longer so justified
in the current state of affairs.
That letter considered that incorporating the Paracels into the
administration of Hainan Island would automatically entail the application to
the islands of the provisions of the Peking Convention of 10 April 1898.
France would therefore have had a guarantee against any cession of the
islands. We would also have secured a subsidiary guarantee of non-
fortification by obtaining a declaration from the Chinese Government in
exchange for the official recognition by France of China's sovereignty.
However, in 1921 Mr Maugras, Charge d' Affaires in Peking, and later Mr
de Fleuriau, deemed that it would be inadvisable to initiate negotiations on
the Paracels with a Government which did not have any authority in
southern China. I cannot deny that it would be even more difficult to obtain
from the Nationalist Government today something which our diplomatic
representatives in China felt unable to request at a time when China stood
divided under two equally weak Governments, and when the mystique of the
Kuomintang had not yet reached the heights we see today.
An attempt to negotiate on this subject would most probably be doomed
to failure. As for unilateral action on our part, still a possibility, no doubt you
will hold the consequent political drawbacks to be out of all proportion to the
importance of the objective to be attained. Yet in view of the strategic
interest of the archipelago for us and the force of the rights acquired by the
Empire we have taken under our protection, I feel we cannot ignore the
matter.
Consequently, the most expedient attitude to adopt still appears to be wait
and see. This has the advantage of reserving our rights until the day when
more propitious circumstances allow us to secure their recognition. We may
indeed find ourselves obliged to envisage the abandonment of certain
advantages and privileges which we currently enjoy in China. The Paracels
might then constitute a bargaining chip or compensation for our concessions
on other points.
I should be obliged if you would let me know, after consulting the
Minister for Foreign Affairs, whether you approve of my view of the matter.
In any event, I would be most grateful for instructions or suggestions on this
question from your Ministry and from the Quai d'Orsay.
Annex 5 169
For your own information, and also that of the Minister for Foreign
Affairs, I enclose in duplicate a study on the Paracel Islands written by Mr
Lapique. This brochure, complete with photographic material, is an
interesting summary of what we know about the history and geography of
the archipelago./.
(Signed) Pasquier
ANNEX 6
ANNEX 7
Excerpt from a letter dated 28 August 1788 from Count de Kergariou

Locmaria, Captain of the frigate Calypso
172 Annex 7
Annex 7 173
174 Annex 7
Annex 7 175
176 Annex 7
Annex 7 177
178 Annex 7
Annex 7 179
ANNEX 8
Letter of 22 January 1929, from the Chief Resident of Annam, Hue, to the
Governor General of Indochina, Hanoi
No. 184-A
I have the honour to acknowledge receipt of your letter No. 103-A Ex
dated 12 January 1929 regarding the ownership of the Paracels.
The matter was the subject of a detailed study carried out in 1925, prior to
the voyage undertaken by the director of the Nhatrang Oceanographic and
Fisheries Institute.
No new information providing a definitive answer to the vexed question
of ownership having since emerged, I can do no more than reiterate the facts
established by the above-mentioned investigation.
The Paracels archipelago, deserted and barren, a veritable labyrinth of
small coral islands and sandbanks deservedly feared by sailors, seems to
have remained res nullius until the beginning of the last century.
In his work The Geography of Cochin China, translated into English and
published in the Journal of the Asiatic Society of Bengal in 1838, Monsignor
Jean Louis Taberd, Bishop of Isauropolis and Apostolic Vicar of Cochin
China-Cambodia and Champa, reports the occupation of the Paracels
archipelago in 1816 by Emperor Gia Long, who is said ceremoniously to
have raised the flag of Cochin China.
Although doubts may be cast on the authenticity of the formal taking of
possession by Gia Long himself, the occupation was nonetheless effective,
as evidenced by works such as Annals of the Annamese Government (Dai-
Nam-Nhat-Thang-Chi), book 6, Nam-Viet-Dia-Du, volume 2, a geographical
work on Annam published in the 14th year of the reign of Minh-Mang, or
Nam-Nhat-Thong-Chi, No. 4, a geographical work by Duy-Tan.
These documents, conserved in the archives of the Annamese
Government, give the following details.
Under former dynasties, a corps of 70 men recruited from among the
inhabitants of the village of Vinh-An formed a garrison on the Paracel
Islands under the name Hoang Sa doi. Another doi named Bac Hai was later
formed and placed under the command of the Hoang Sa doi.
Gia Long reorganized the garrison in the Paracels, and later disbanded it.
Since then, it does not appear to have been re-established.
Annex 8 181
Minh Mang despatched several official missions with instructions to

explore the archipelago. One of them discovered an ancient pagoda bearing
an inscription in characters.
In 1838 Minh Mang sent workmen and materials to the islands to erect a
pagoda and a monument to commemorate the expedition. During the
excavation required for this construction, around 2,000 pounds (can) of
various objects - laminated copper, iron, pig-iron, etc. - were found,
providing clear evidence of a former appropriation of the island.
It would appear that Annam no longer has any connection with the
Paracel Islands. Most of the fishermen or junk owners of the coast know
nothing at all about the islands and none of them go there. Our proteges,
therefore, appear not to have asserted their ownership of the Paracels for
many years, although His Majesty Than-trong-Hue, former Minister for War
who died in 1925, did state in a letter dated 3 March that year that 'these
islands still belong to Annam, there is no dispute on this score'.
When China claimed the islands in 1909, it should have been for France -
which, under the terms of the Treaty of Protectorate, had taken the place of
Annam in the conduct of its foreign relations - to assert the right of the State
under its protection to the islands in question. It seems on the contrary that
France completely lost interest, thus playing into the hands of the Chinese,
who were reportedly preparing officially to take possession (Eveil Eco-
nomique, 30 December 1928).
In the present circumstances, no-one is entitled to ignore the considerable
strategic importance of the Paracels. In the event of war, their occupation by
a foreign power would be one of the most serious conceivable threats to the
defence and integrity of the territory of the [French] Union.
The islands are actually the natural prolongation of Hainan. An adversary
would find that they provided a powerful naval base, with wells and several
excellent anchorages. By its very nature, such a base would be practically
impregnable. A flotilla of submarines based there would be able not only to
blockade Tourane, Annam's largest port, but also to isolate Tonkin by cutting
off access from the sea. In order to maintain a link between Cochin China
and Tonkin, we would be obliged to use the existing railway, even though
this is too vulnerable because the coastal route lays it open to destruction by
the long-range guns currently in use in existing naval units.
Similarly, all communication between Indochina, the Far East and the
Pacific would be cut off, since the shipping route between Saigon and Hong
Kong, which passes close to the Paracels, would be directly under the eye of
a base set up in the islands.
182 Annex 8
I am well aware that these threats, and other more serious ones, cannot
have escaped the notice of the competent authorities, although in my view
some authorities have failed to appreciate the very serious nature of such
threats. Nevertheless, I felt it my duty to bring them to your attention once
again, at this critical juncture, since of all the countries of the Union, Annam
will be the one most directly interested in a solution to the question./.
(Signed) Le Fol
ANNEX 9
Map of Indochina - From the geographical work Hoang-Viet-Dia-Du

14th year of the reign of Minh Mang
ANNEX 10
Note of 29 September 1932 from the Legation of the Chinese Republic in

France to the Ministry of Foreign Affairs, Paris
On the instructions of its Government, the Legation of the Chinese

Republic in France has the honour to transmit its Government's reply to the
Foreign Ministry's Note of 4 January 1932 on the subject of the Paracel
Islands.
The Si-Chao-Chuin-Tao Islands ( ), also known as Tsi-Cheou-
Yang ( .) and called the Paracel Islands in the foreign tongue, lie in
the territorial sea of Kwangtung Province (South China Sea); to the north-
east are the Ton-Chao Islands ( ); the Si-Chao-Chuin-Tao Islands
form one group among all the islands in the South China Sea which are an
integral part of the territorial sea of Kwangtung Province.
According to the reports on the Si-Chao-Chuin-Tao (Paracel) Islands
drawn up in the Year XVII of the Chinese Republic (1926) by Mr Shen-
Pang-Fei, President of the Commission of Inquiry into these islands, and to
the files on the islands compiled by the Department of Industry of
Kwangtung Province, the islands lie between longitude 110°13' and 112°47'
east. More than 20 in number, large and small, most of them are barren
sandbanks, 10 or so are rocks and 8 are true islands. The eastern group is
called the Amphitrites and the western group the Crescent. These groups lie
145 nautical miles from Hainan Island, and form the southernmost part of
Chinese territory.
Clause 3 of the Convention on the Delimitation of the Frontier between
China and Tonkin, signed in Peking on 26 June 1887, stipulates that at
Kwangtung it is agreed that the disputed points which lie east and north-east
of Mon Cai, beyond the frontier as determined by the Delimitation Commis-
sion, are allocated to China. The islands which are east of the north-south
line passing through the eastern point of the island of Tch'a Kou, which
forms the boundary, are also allocated to China. The Gotho Islands and the
other small islands west of this line belong to Annam.
The starting point of the frontiers between Indochina and the Chinese
Province of Kwangtung is Chou-Chan ( ), at latitude 21 °30' north and
longitude 108°2' east. Since the coastline of Indochina lies west of Chou-
Chan, according to the above provisions, following the coast southwards
from this point, the Paracel Islands in any event lie far to the east of the line
and are separated from the coast of Indochina by Hainan Island. From their
Annex 10 185
geographical position, it is easy to see to which country they should be

attached.
Apart from Woody Island and Lincoln Island, where guano deposits
provide material for fertilizers, the remainder of the islands in the
archipelago are formed of nothing more than sand or outcrops of coral,
presenting no value from the point of view of colonization. The only people
to visit these places are the inhabitants of Hainan Island, who come here to
catch or collect fish and Indochinese people have never been known to settle
there. What exceptional grounds did the Kings of Annam invoke for going
there and erecting monuments and tablets? The French Government may
well consider such literary allusions to be historical, but it omits to mention
that 100 years ago Indochina was under Chinese tutelage. Since the Paracel
Islands already formed part of China's territory, Indochina had no right to
carry out acts of occupation on the possessions of its suzerain. The Foreign
Ministry's Note does not say on what island monuments and tablets were
erected.
Compelling evidence which might justify the French Government's resort
to the right of priority of claim is lacking. Since the Tenth Year of the
Chinese Republic, the authorities of Kwangtung Province have already on
more than five occasions granted authorization to Chinese nationals wishing
to exploit the resources of the islands. The archives which substantiate these
claims may be consulted. The French Government, moreover, has never
before expressed any claim to occupy these islands.
According to international law and custom, the prime condition for the
possession of an island lying far from the mainland is the first effective
occupation, in other words the nationals who were the first to settle lands,
thereby bringing these territories into their country's possession. The natives
of Hainan who settled in the Paracels, and built houses and fishing boats
there to supply their needs, have done so since the distant past. Indeed, in
1909 the Government of the former Ch'ing dynasty sent a naval expedition
to study conditions in the islands and to manifest its effective occupation to
other nations of the world: the Chinese flag was raised and was saluted with
a round of gunfire on Woody Island. The French Government made no
protest, on that occasion either. In 1908 the question of constructing a
lighthouse on one of the islands in the Paracels for the protection of shipping
was a matter of international maritime importance. The Chinese Govern-
ment, having received through the maritime customs service a request from
the shipping companies concerned for the construction of a lighthouse, sub-
sequently consented. In April 1930, on the occasion of the Meteorological
Conference held in Hong Kong, the French Director of the Observatories of
186 Annex 10
Indochina, Mr E. Bruzon, and the Director of the Zi-Ka-Wei Observatory,

Reverend Father L. Froc, who both attended the Conference, suggested to
the representative of China that an observatory might be set up in the
Paracels. This proves that not only are the Paracel Islands internationally
recognized as belonging to China, but that the French themselves share this
view. It is difficult for the Chinese Government to verify the case involving
the loss of vessels in the area of the Paracels in 1898, and the subsequent
intervention of the British Consul in Hoihow, as stated in the Note of the
Ministry of Foreign Affairs, since there is no mention of this matter in its
records.
The treaties, documents and records incontrovertibly show that the
Paracels archipelago forms a part of China's territory. According to the
principles of international law concerning the right of priority of claim and
continuous occupation, the islands belong to China as a result of its
occupation of them over a period of many centuries, and consequently there
is no doubt that no other country may claim any rights to them./.
Stamp of the Legation of the Republic of China, Paris
ANNEX 11
Internal Ministry of Foreign Affairs Note of 25 May 1950, addressed to the

Directorate for Asia by the Legal Adviser
Re: the Paracels

The purpose of this note is not - with a view to any subsequent arbitral or
jurisdictional debate - to establish the arguments on the merits which might
be put forward in support of the claim to French sovereignty over the
Paracels. Its purpose is solely to answer the question raised by the
Directorate for Asia and Oceania in its Note No. 194 of 16 May 1950,
namely to indicate the possibilities open to France 'to submit the case to the
International Court of Justice, even unilaterally', for a settlement of the
dispute between France and China concerning sovereignty over the
archipelago.
* *
*
The consistent reluctance of the Chinese Government, in 1947 as in 1937,

to accept the French Government's proposal to take the matter to arbitration,
suggests that the Chinese Government will be no more willing today than it
was yesterday to conclude a special agreement with us on this point. Legally
speaking, the only means of settlement which remains open is thus a
unilateral one. Technically, we can do this, since the two States involved in
the dispute have accepted the optional clause in the Statute of the Inter-
national Court of Justice, recognizing the Court's compulsory jurisdiction.
The Chinese Government did so by its declaration of 26 October 1946 and
the French Government by its declaration of 18 February 1947, both of
which are valid for a period of five years, on condition of reciprocity. The
decision to initiate proceedings directly against the Chinese Government
before the International Court of Justice therefore depends on the French
Government - and the French Government alone.
Although apparently simple, this procedure is not without difficulties,
owing to the present situation in both Indochina and China.
**
*
188 Annex 11
A. France took possession of the Spratlys in 1931 -1932 'in the name of the
Emperor of Annam'. The sole titles to which France lays claim in this case -
i.e. the earlier exercise of sovereignty - are titles which belong to Annam
and it is in its capacity as the protector State, responsible for the conduct of
Annam's foreign relations, that France claims to invoke these rights against
third States and possibly to obtain recognition of such rights before the
International Court.
Were relations between France and Annam still governed by the Treaty of
Protectorate concluded in Hue on 6 June 1884, this would present no
difficulty; it would be for the French Government, acting as protector State,
to exercise for and on behalf of the State under its protection, the powers
which it is unable to exercise.
However, such a view is more in line with the current state of the law,
which is determined by the exchange of letters of 8 March 1949 between the
President of the French Republic, in his capacity as President of the French
Union, and Emperor Bao Dai, in his capacity as sovereign of Vietnam.
Under Article II of these diplomatic instruments, 'Vietnam shall be em-
powered to negotiate and sign agreements relating to its own interests, on the
express condition that, prior to any negotiation, it submits its plans to the
Government of the Republic for examination by the High Council and that
negotiations are conducted in consultation with the diplomatic missions of
the Republic'
Admittedly, on a narrow interpretation of the text, submitting the dispute
to the International Court of Justice by means of a unilateral application
could be said not to involve the 'negotiation' or the 'signature' of an
'agreement' at all. However, it would be difficult to deny that the dispute
over the Paracels directly affects Vietnam's 'own interests'. The Vietnamese
Government might therefore express the wish to share in the drafting of the
application, might even demand that the application be submitted in its
name, and might insist on appointing Vietnamese agents or counsel with
instructions to defend the view of the applicant Govemment(s) before the
Court. Such demands would probably raise no insoluble legal problems and
their moderate character might even prompt the French Government to
accept them. Yet it must be clearly seen that they would definitively enshrine
Vietnam's international personality and would result in Vietnam appearing
directly before the International Court of Justice, thus constituting a
precedent whose ramifications it would be unrealistic to underestimate.
**
*
Annex 11 189
B. A second difficulty relates to the existence in Indochina of a de facto

authority, the Government of Ho Chi Minh, which the French Government
has refused to recognize, and against which it is engaged in hostilities.
There seems very little likelihood - apart from inevitable protests on the
radio and in the press - of this de facto authority intervening in any
proceedings before the International Court of Justice. However, several third
States have recognized the Ho Chi Minh Government as the sole Govern-
ment of Vietnam. Without for one moment wishing to impugn the independ-
ence of the judges of the Court - who in no way are the agents of their
respective governments - the possibility that this consideration might
influence the decision of the judges - the Soviet, Yugoslav and Polish judges
for example - who are nationals of the States which have already recognized
Ho Chi Minh, can perhaps not be absolutely ruled out.
The existence of two governments and the instability of the present
situation in Vietnam might thus mean a weakening of the impact of the
Court's Judgment, and might prompt dissenting opinions unwanted in their
conclusions and their reasoning alike.
**
*
Similar objections must be made with regard to the Government of the

respondent State. At present there are two authorities in China: one - the
only one recognized by France - is the Nationalist Government; the other,
the People's Republic of China (Government of Mao Tse Tung), which is
recognized by several States including the USSR, the Republics of Eastern
Europe, the United Kingdom, India, Pakistan and the Netherlands.
Here too there is reason to believe that the Government of the People's
Republic of China - especially if it succeeds meanwhile in establishing
effective control over the Paracels - will not fail to pose as the sole heir to
Chinese sovereignty in the archipelago. Unfortunately, the fact that China
has a judge at the Court, and that consequently no Chinese judge ad hoc
would be appointed, does not dispense with all the difficulties. Some of these
are easily imagined: a demand by the Communist Chinese Government to
take part in the proceedings; a refusal by that Government to recognize any
international settlement achieved without its participation; possibly even
rejection of the present Chinese judge, etc.
Certain judges would most probably not fail to avail themselves of such
arguments, thus strengthening neither our position nor the authority of the
Court.
190 Annex 11
**
*
For all these reasons, without of course claiming that such reasons are
decisive in a debate in which political factors are also important, the Legal
Department finds it preferable to defer settlement of the dispute before the
Court until such time as a single, unchallenged governmental authority has
been established in both China and Vietnam./.
(Signed) A.S.
ANNEX 12
Note dated 6 May 1921, from the Directorate for Political and Indigenous
Affairs, Government General of Indochina, Hanoi
The first mention of the Paracel Islands found in the files of the Govern-
ment General dates from 1898.
At that time the Ministry of the Colonies, following a communication
from our Consul in Hoihow, felt it proper to draw the Governor General's
attention to the importance of the geographical situation of these islands in
relation to Indochina.
The Paracel Islands, over 150 nautical miles south-east of Hainan, lie
more or less equidistant from Tuling Kan, the southernmost port of Hainan,
and Tourane on the coast of Annam. They form a thinly scattered group of
islands surrounded by coral banks. The largest, Woody Island, is only one
mile long by three-quarters of a mile wide. Large expanses of reef feared by
sailors lie scattered between the islands.
A few islands are isolated and outlying, such as the Triton group to the
south-west, Passu Keah Island to the south, Lincoln Island to the east. Others
lie clustered in the two main groups: the Crescent to the north, including
Duncan, Drummond, Pattle, Robert and Money Islands; the Amphitrites to
the north-east, including Woody Island and Rocky Island.
The Paracels are not permanently inhabited and anyway are almost
barren. Only two islands have springs yielding brackish water, which fisher-
men from Hainan and Annam find drinkable if boiled. Towards the end of
the north monsoon, flotillas of Annamese and (mostly) Chinese fishermen
set out for the Paracels, which remain their operational base until October.
On land they have primitive huts used for storing provisions, and for salting
and drying fish. When their activities are finished, they take advantage of the
end of the south-west monsoon to return home.
In winter the Paracels are deserted. The anchorage they offer would not
be suitable during the north-east monsoon. The islands are low-lying, and
their roadsteads are traversed by violent currents, as well as being too deep
(40 metres or more), too exposed and of poor quality (coral seabed). While
they might offer temporary refuge from a violent wind from a particular
direction, they cannot provide permanent shelter. Sailors avoid them in the
season of typhoons and fogs, and in winter. Ship captains make it their
business to identify them, and then only by day. In calm, clear weather they
are a known landmark.
192 Annex 12
There have been many shipwrecks: the Mariana (a German vessel) on

Bombay Reef in 1891, the Bellona (a German vessel) on North Reef in 1895
and the Imegu Maru, (a Japanese vessel) on the Amphitrites in 1896, the
latter two giving rise to noteworthy disputes.
The Bellona and the Imegu Maru were both carrying cargoes of copper
insured with British companies. A vain attempt was made to salvage the
cargoes. Ships expensively chartered for that very purpose were dogged by
bad weather and had to return to Hong Kong with very little to show. The
wrecks were abandoned.
Chinese Fishermen in light craft then began systematically to loot the
wrecked ships. Through their shipowners in Hoihow, they offered to sell the
looted copper for half its value. The insurance companies refused, and since
part of the copper had already been landed at Hainan, at their behest the
Minister of Great Britain in Peking and the Consul in Hoihow intervened,
demanding that the copper be impounded, stating that the mandarins of
Hainan had been informed of the wrecks as soon as they occurred, that they
should have taken precautions to prevent the looting, and that they should be
held responsible.
The mandarins protested, claiming that the Paracels were abandoned
islands which belonged no more to China than they did to Annam, that they
were not administratively attached to any district of Hainan and that no
special authority was responsible for policing them.
Until 1908-1909, it seems that no power manifested any intention of
annexing the Paracel Islands. The Germans made systematic hydrographic
surveys of the area between 1881 and 1884. It was not possible to infer their
true intentions from such operations, which they carried out in general in
almost all corners of China's seas (Hainan, Pakhoi, Weitanao), as far north as
Amoy and Foochow.
On various occasions the British press urged the British Government to
build a lighthouse on one of the islands in the Paracels. However, it seems
that this was solely in the interests of navigation.
In December 1898, the Ministry of the Colonies transmitted to the
Governor General a request for information it had received from a journalist,
Mr N. Chabrier, who wished to set up stores in the Paracels to supply
fishermen.
On the advice of Mr Pichon, France's Minister in Peking, in June 1899
Mr Doumer informed the Ministry that the commercial venture planned by
Mr Chabrier stood no chance of success. However, the Governor General of
Indochina felt that France might be well-advised to prevent another power
from becoming established in the Paracels, in view of their situation. With
Annex 12 193
this in mind, he advocated building a lighthouse for the purpose of justifying

any subsequent claim to sovereignty on our part.
Nothing came of the matter, and the archives of the Government General
contain no reply from either of the two Ministries concerned, nor do they
contain any document showing that either metropolitan France or the colony
has since shown any interest in the question of the Paracels.
In 1907, in the wake of Japan's claims to the Pratas Island group, the
Viceroy of Canton became exercised with claiming ownership of all the
groups of islands along the coast of the Celestial Empire, which might in
some way be considered part of that Empire. They included the Paracels.
In April 1909, an official Chinese expedition explored the Paracels and
concluded that it would be possible to mine the rich deposits of phosphates
the expedition claimed to have identified.
In June 1909 a second expedition was sent. It formally raised the Chinese
flag, firing a 21-round salute on two of the larger islands. Having thus taken
possession of the whole of the Paracels on behalf of its Government, the
expedition returned home some days later, apparently less enthusiastic than
its predecessor, having found nothing but rocks, sand, some brackish wells
and a torrid, unhealthy climate.
Following these various displays, our Consul in Canton, Mr Beauvais,
asked the Minister for Foreign Affairs for advice on what to do in this
situation: whether to prevent the Chinese Government from taking effective
possession of this group of reefs, or else 'to turn a blind eye' so as not to stir
up Chinese 'nationalism'. It appears that Mr Beauvais never received a reply,
at least not to our knowledge.
I must add that, at approximately the same time, Mr Boissonnas sug-
gested in one of his letters that any French concession at all to the Chinese
Government, saving that Government's face, would make it easier to settle
the matter of compensation for the Tunnam railway. In such a situation, the
abandonment by France of all rights to ownership of the Paracels might
seem like the compensation demanded.
Since that time, there has been no further mention of the Paracel Islands,
until recently under the following circumstances: in a letter dated
20 September 1920, a Japanese shipping company, Mitsui Bussan Kaisha,
felt it necessary to ask the Commander of the Navy in Indochina, Captain
Remy, whether the Paracel Islands were French possessions. In explanation,
the company claimed that it intended to mine minerals having a phosphoric
acid content of 32 per cent which it had identified on the islands. A few days
later, on 24 September 1920, Captain Remy saw fit to reply:
194 Annex 12
'There is no paper in the official documents of the Navy allowing the

nationality of the Paracel Islands to be determined. Nevertheless, I think I
can assure you that they are not a French possession, but this assertion is
based solely on my personal memories and I cannot provide you with any
conclusive document in support of this.'
From a letter addressed by the Commander of the Navy to the
Government General, dated 24 January 1921, it appears that, having failed to
find any information in the naval records establishing the nationality of the
Paracel Islands, the Commander of the Navy had turned to the Governor of
Cochin China, who reportedly had the matter investigated in his own
archives and in those of the Government General to no avail:
'Deeming the question interesting, the Governor of Cochin China
requested me to raise it directly with the Ministry of the Navy.'
This explains the following cables:
- No. 206 of 28 September 1920 Navy Saigon to Navy Paris
((Question having been raised and investigations Indochina unfruitful
please advise whether nationality Paracel Islands duly established pursuant
to what document. 1100/28/29));
- No. 569 of 23 January 1921 Navy Paris to Navy Saigon
((Your 206 - Chinese claimed ownership of Paracel Islands in 1909 only
information found so far. Advise origin and purpose of this question -
1830/21/1)).
It must be said that there is no document in the Department of Political
and Indigenous Affairs either from the Governor of Cochin China or the
Commander of the Navy referring to any request for information on the
Paracel Islands, despite the fact that the Department held full records on the
question since the present note has been drawn up solely on the basis of the
documents in its archives.
For whatever reason, the Government General was not directly
confronted with the question until a telegram of 1 February 1921 from the
Ministry of the Colonies. The telegram referred to a short paragraph which
had appeared in the newspaper Europe Nouvelle of 2 January 1921, reading
as follows: 'Approximately 300 kilometres from the coast of Annam lies a
group of deserted rocks, the Paracel Islands. Recently the Consul of Japan
wrote to the Government of Indochina to ask whether France claimed
ownership of the islands. The reply was negative. Did the official who
drafted the reply not realize that one submarine base in the Paracel Islands
would be sufficient to blockade the entire coastline of Indochina?'
Clearly, Europe Nouvelle was referring to Captain Remy's reply to the
Mitsui Bussan Kaisha Company. Moreover this Government General has
Annex 12 195
never had occasion to reply to any request whatsoever for information on the
matter, either from a Japanese consular or diplomatic authority, or from any
other source.
The inquiry into the matter, immediately ordered by the Governor
General, had barely begun when a letter was received from Mr Beauvais,
Consul General in Canton, dated 6 April 1921, informing the Governor
General that:
((By an order No. 831 dated 30 March 1921 and published in the Official
Gazette of Kwangtung (No, 2619 of 2 April 1921), the civilian Governor of
Kwangtung announced that, at a meeting on 11 March 1921, the heads of the
military Government of the south had decided administratively to incorpor-
ate the Paracels into the sub-prefecture of Yai Hien, Hainan Island)).
In view of the previous events we reported above, it may well be possible
that there is no connection between the recent decision of the Canton
Government - ratification of the act done in June 1909 - and Captain
Remy's above-mentioned reply to the Japanese shipping company, nor
between the Government's decision and the article in Europe Nouvelle
referred to in the Ministry's telegram of 10 February. However, one cannot
help but compare the dates, and it is not beyond the bounds of possibility
that the Canton Government's attention may have been more particularly
alerted to this matter, by the opinion of diplomats at the Legation of China,
or by eminent Chinese nationals having read Europe Nouvelle in Paris, or
others, no doubt interested parties, who were aware of Captain Remy's reply
to the Mitsui Bussan Kaisha Company.1
This being so, it seems regrettable that the Commander of the Navy saw
fit to reply, albeit in a personal capacity, to a foreign shipping company on
matters whose very nature should have warranted silence or at least more
cautious reservations, and did so without first consulting the Government
General, for whom the claimed authority of the Governor of Cochin China
could in no event serve as substitute in such circumstances.
Furthermore, if some surprise is also warranted at the fact that the
Ministry of the Navy was consulted on a dispute concerning French
nationality, it is even more surprising to note that that Ministry, when
approached, did not see fit to bring the matter to the attention of the relevant
1
We read today in a report From Mr Beauvais that the representative of Mitsui Bussan
Kaisha in Canton has sent a personal letter of congratulation to Dr Sun Yat-Sen on his
recent elevation to the Presidency of the Republic of Kwangtung. The Company, at least
in the person of its representative in Canton, appears to enjoy fairly close relations with
the most eminent personage in the new Government.
196 Annex 12
department of the Ministry of Foreign Affairs, or, concerning as it did land

close to one of our major possessions, the Ministry of the Colonies.
Hanoi, 6 May 1921
ANNEX 13
Note dated 4 May 1909 from Mr Beauvais, Consulate of France in Canton
Re: The Paracel Islands

The difficulties which arose over the Pratas Island group drew the
Chinese Government's attention to the various groups of islands along the
coasts of the Celestial Empire, particularly the Paracels archipelago. To
counter the possibility of a similar attempt on these islands, the Viceroy of
the Two Kwangs sent an expedition comprising three officers to the Paracels
at the end of last March. In the report submitted on their return, the three
envoys stated that they had identified 15 islands, the largest ones being five
to six miles long, and that there were no Europeans in the archipelago.
However there were any number of clearly visible traces of the passage of
foreigners at various times. Names had been carved in many places,
including on the trunks of coconut palms. Since the Viceroy had originally
been told that the Japanese and the Germans had visited the islands, the
envoys closely questioned the Chinese fishermen living in flimsy huts, the
only people they found in the normally deserted islands. The fishermen said
they were aware of the passage of foreigners in the area, but that they were
to be found in southern Hainan. The officers did indeed find proof that an
expedition consisting of two Germans and one Japanese, together with their
Malay servants, had travelled around the southern part of the large island,
and had prospected for deposits worth mining, as evidenced by the many
boreholes they left in their wake.
On reading the report, the Viceroy contrived a plan to entrust the
exploitation of the islands to a syndicate of Chinese merchants: to this end,
he instructed the Taotais Wang p'ing ngen and Li Che-suin to conduct a new
survey of the islands, and a fresh voyage to the Paracels is about to be made
by the Chinese authorities.
In this connection, our agent states that the Paracels have a certain
importance for France: lying halfway between Saigon and Hong Kong, they
pose a major threat to shipping and a lighthouse may prove necessary. The
islands are also visited by Annamese and Chinese fishermen, who halt there
during their fishing trips for a perfunctory preparation of their catch. Bloody
fights break out on such occasions between fishermen of the two countries.
Mr Beauvais contends that France has as many rights to the islands as
China and that it would be easy for us to find arguments to support our
198 Annex 13
claims. However, should the game not be worth the candle, it would be
preferable, in his view, to turn a blind eye, since any intervention on our part
might lead to a fresh wave of nationalist feeling in the population, more
damaging to us than the possession of the Paracel Islands would be useful./.
(Signed) Beauvais
ANNEX 14
Letter of 6 October 1921, from the official in charge of the Consulate of

France in Canton to the President du Conseil, Minister for Foreign Affairs
No. 76
I have the honour to advise you of the content of a fresh order published
in the Official Gazette of Kwangtung dated 4 October, concerning the
concession for the exploitation of the Paracels and addressed by the civilian
Governor to the sub-prefect of Ch'ang Kiang
As I stated in my report No. 74 of 30 September, Mr Ho Jouei-Nien, the
holder of the concession for the islands, travelled to the Paracels on a study
voyage. On passing through Ch'ang Kiang, he noted the existence of an
unworked island named Feou-Choei-Cheou ( ) lying very close to
this sub-prefecture. Immediately on his return to Canton he applied for the
concession for the island, to enable him to work it in conjunction with the
Paracels.
The civilian Governor approved this application.
Incidentally, I must advise you, for information only and without in any
way being able to vouch for their veracity, of the recent allegations in some
newspapers on the subject of the concession for these islands. From articles
published in Min Yi Pao and Sin Min Kouo Pao
, it would appear that Mr Ho Jouei-Nien is nothing more
than a ligurehead and that the real founders and beneficiaries of the company
set up to exploit the resources of the Paracels are none other than Japanese./.
(Signed) Tulasne
ANNEX 15
Letter dated 4 May 1909 from Mr Beauvais, Consul of France in Canton, to

the Minister for Foreign Affairs, Paris

As I informed you at the end of my last report (No. 86 of 1 May 1909) on
the Pratas Island group, this matter drew the attention of the Chinese
Government to the various groups of islands along the coasts of the Celestial
Empire, islands which to some extent may be considered part of that Empire.
These islands include the Paracels archipelago.
On 26 and 31 March, the Chinese press reported that a European gunboat
had recently sailed the length of the Si cha Islands, , which is the
Chinese name for the Paracels. It was also reported that the Viceroy of the
Two Kwangs, fearing that an attempt might be made on the islands similar to
the Japanese attempt to claim the Pratas Island group, had just sent three
officers on a mission there, Wang Jen-t'ang, , Lin Kouo Siang,
, and Ou King Yong, . The three envoys embarked on
the cruiser K'ai pan, belonging to the customs service and used
for many years on surveillance duties off the coasts of southern China, its
crew having a thorough knowledge of the seas around Hainan and the Gulf
of Tonkin.
On 15 April, the mission returned from its explorations and arrived in
Hong Kong, where it caused wonder in the local population by exhibiting 20
or so enormous turtles brought back from these deserted islands.
By 19 April, the Viceroy's envoys had already submitted their report.
They had identified 15 islands, the largest ones being five to six miles long,
and the smallest just two miles long, falling into two groups, east and west,
comprising eight and seven islands respectively.
On each of the 15 islands, lying at a distance of approximately 145 miles
from Ling chouei hien , and 150 miles from Yu lin kang Bay
in Hainan, there was a small pagoda, its walls fashioned from
pieces of coral, and the roof from sea shells.
The seven islands in the western group were covered with coconut palms.
The water was brackish; the envoys, who brought the Viceroy back a map of
the archipelago, reckoned that salt production could be successfully under-
taken there.
Annex 15 201
The authors of the report noted that there were no Europeans in the
archipelago. However there were any number of clearly visible traces of the
passage of foreigners at various times. Names had been carved in many
places, including on the trunks of coconut palms. Since the Viceroy had
originally been told that the Japanese and the Germans had visited the
islands, the delegates closely questioned the Chinese fishermen living in
flimsy huts, the only people they found in the normally deserted islands. The
fishermen said they were aware of the passage of foreigners in the area, but
that they were to be found in southern Hainan. The officers did indeed find
proof that an expedition consisting of two Germans and one Japanese,
together with their Malay servants, had travelled around the southern part of
the large island, and had prospected for deposits worth mining, as evidenced
by the many boreholes they left in their wake, and that it seemed to have
done a lot of work.
This was, of course, the expedition which my colleague in Hoihow, Mr
Hauchecorne, recently discussed with you.
On reading the reports, the Viceroy of the Two Kwangs said that he
wished to have the Paracels surveyed as accurately as possible and to
transport a number of Chinese families there in order to collect phosphates,
coral and other sea produce, which his emissaries assured him were found
there in extreme abundance. It was the idea of His Excellency Chang that
warships would visit at frequent, regular intervals, thus averting any
recurrence of incidents similar to the recent events involving the Pratas
Islands.
As the Viceroy's intentions became clearer, and his projects took shape,
he had the idea of entrusting the development of these islands, which he had
just taken back into the fold of the Celestial Empire, to a syndicate of
Chinese merchants.
Enclosed please find the text of the orders which he gave the Taotais
Wang p'ing ngen and Li Che-suin. These men are to make a fresh, detailed
inspection, and a new voyage to the Paracels by the Chinese authorities is
about to take place.
On 3 May, it was announced that the Viceroy of the Two Kwangs had
borrowed the cruiser Yuan k'ai from a colleague, the Viceroy of Min Cheu,
at Foochow, and that Admiral Li had been requested to provide the explorers
with all possible assistance.
I was on the point of telegraphing a brief outline of the situation to you.
However, I refrained from doing so, recalling that in 1898, during my
time in charge of the Vice Consulate of Hoihow, you requested from that
post as much information as possible on the Paracels and on any objection
202 Annex 15
which the Chinese Government might have to their occupation. Mr Kahn,

the incumbent, answered your questions, which, if my memory serves me
well, you transmitted in code for greater security. The French Government
having subsequently given no sign whatsoever of embarking on the practical
implementation of the plans which your above-mentioned letter appeared to
indicate, I did not feel it proper to use telegraphy to inform you of a question
in which the Ministry appeared to have lost interest for 11 years.
Nonetheless, the Paracels are of some importance for France: lying
halfway between Saigon and Hong Kong, they pose a major threat to
shipping and may need a lighthouse. I have heard it said that we once had
this project in mind but drew back in view of the expenditure entailed.
Moreover, since it is impossible to land on the islands during the north-east
monsoon, it would have been necessary to abandon the lighthouse keepers to
their fate for all that time.
However, these islands, equidistant from Annam and Hainan, on the same
parallel as Tourane, are also visited by Annamese and Chinese fishermen,
who halt there during their fishing trips for a perfunctory preparation of their
catch. Bloody fights sometimes break out on such occasions between
fishermen from the two countries. Some of them find it much easier to steal
from those who have taken the trouble to catch their cargoes of fish.
Moreover, since the Annamese are in the habit of taking their wives and
children with them, when our proteges come off worst in the fight, the
women and children are added to the stolen cargo and sold by the Chinese,
along with the cargo, in the ports of the Hainan coast, where it is not unusual
to encounter them.
In my opinion, France has as many rights to the islands as China.
Yet precisely at the time you requested information on the intentions of
the Chinese Government vis-a-vis the Paracels, an incident occurred which
elicited from the Chinese a peremptory denial of ownership.
A steamship, a Japanese vessel I believe, carrying a cargo of copper
ingots was wrecked in the Paracels. The vessel being abandoned by its
owners, the insurance companies attempted to salvage the cargo. However,
when they arrived at the scene, Chinese fishermen had already taken care of
the salvage and the copper had been removed. Evidence later emerged that
the copper had been taken to Hainan, and the insurance companies were able
to obtain receipts for the import duties levied on the ingots by Chinese
customs authorities on the island.
That was enough for Mr O'Brien Butler, the then Consul of Great Britain
in Hoihow, recently appointed Consul General of His Britannic Majesty in
Yunnansen, who lodged a request for compensation. The Chinese
Annex15 203
Government rejected this, precisely on the grounds that the Paracels were
not part of the Chinese Empire. It would therefore seem that, were it in our
interest to prevent the Chinese Government from seizing this group of reefs,
we could perhaps, with a little research, easily find arguments clearly
demonstrating our right as well as irrefutable evidence of it. However,
should the game not be worth the candle, it would perhaps be preferable, all
things considered, to turn a blind eye, since any intervention on our part
might lead to a fresh wave of nationalist feeling in the population, more
damaging to us than the possession of the Paracel Islands would be useful.
I trust you will advise me of any steps you feel I should take on this
matter./.
(Signed) Beauvais
ANNEX 16
Letter of 18 April 1921 from the Minister for the Colonies to the President du
Conseil, Minister for Foreign Affairs

Further to your letter No. 441 dated 26 May 1921, I have the honour to
enclose herewith for your information a copy of a letter the Governor
General of Indochina has just sent me concerning the Paracel Islands.
Appended to this letter, which contains all the requisite information on
the short paragraph published in L'Europe Nouvelle, is a Note prepared by
the Government General of Indochina. The Note gives the fullest possible
account of the question of the Paracel Islands, including geographical and
historical relations with Indochina and the known diplomatic background to
the current state of affairs.
I would particularly draw your attention to the idea mentioned by Mr
Long on the last page of his letter, to the effect that 'It would perhaps not be
excessive, in exchange for official recognition that the Paracels are Chinese,
to request a formal commitment from the sovereign Government never to set
up a military or naval base there and to install no facilities to that end.'
I would much welcome your opinion on this suggestion.
As for the regrettable consequences of Captain Remy's reply of
24 September last to an inquiry made by the general agent in Saigon of the
Japanese shipping company Mitsui Bussan Kaisha Limited, I did not feel I
should approach the Ministry of the Navy about this before ascertaining your
own views on the matter.
I would be grateful if you could return the enclosed documents once you
have perused them./.
(Signed) Illegible
ANNEX 17
Letter dated 26 December 1927 from the Acting Governor General of

I have the honour to inform you that Mr Kurosawa, Consul General of

Japan, asked the Head of the Foreign Relations Department of the
Government General, during an interview, whether he could give him any
information, 'in a purely personal capacity', on the territorial status of
several groups of small islands and reefs lying in an area of the China Sea
off the coast of Borneo and Palawan, between latitude 7° and 12° and
longitude 117° and 118°.
The names of the main islands concerned are: Trident Reef, Danger Reef,
Thi Tu Island, Loai Ta Reef, Tizard Reef, Discovery Reef, Fiery Cross,
London Reefs, Storm Island, Amboyna Cay, Rifleman Bank, Ardasier Bank,
Swallow Reef.
Mr Kurosawa said that the three groups of islands and reefs off the coast
of Hainan Island and the coast of Annam, known as the Paracels, lay outside
the delimited quadrilateral and were of no interest to the Japanese
Government.
On the other hand, Mr Kurosawa wished to know whether France or
Great Britain, or more probably America (owing to the proximity of the
large island of Palawan, forming part of the Philippines archipelago) might
claim rights of sovereignty or rights of first occupant in the event of any
question as to the territorial status of these uninhabited reefs and islands,
which together make up an area particularly dangerous for shipping, and on
which only a few Chinese fishermen or Japanese nationals mining guano
venture to set foot.
It would seem that France has never voiced any claim to these islands,
which belong more logically to the Indonesian archipelago than to the
Indochinese peninsula.
There is no mention on any chart of the territorial dependency of these
islands.
Mr Kurosawa had in his possession a long letter from his Government
and a Japanese nautical chart on which the zone concerned had been
carefully marked.
There is no doubt that the question put by the Japanese Consul General
would be of great interest to the British, American and Dutch authorities. It
betrays certain ambitions which cannot be a matter of indifference to our
206 Annex 17
Ministry of the Colonies, Ministry of Foreign Affairs and Ministry of the

Navy.
You will doubtless see fit to inform the latter two Ministries of the above
inquiry./.
(Signed) Pasquier
ANNEX 18
Note dated 8 March 1928 from Mr Bourgouin
Re: Japanese claims to the islands of the China Sea

According to Nautical Instructions (China Seas, pages 612 et seq.), the
group of islets and reefs to which Mr Kurosawa referred in his inquiry to
Hanoi comprises a vast area of coral shoals and outcrops which are separated
by trenches over 1,000 metres deep, and over which the sea breaks
dangerously in bad weather.
Most of these reefs are covered by three to four metres of water even at
low tide. Some just break the surface, having either a lagoon or an expanse
of sand in the centre. Only three islands, Itu Aba Island (Tizard Bank), Loai
Ta Island and Thi Tu Island, protrude slightly above the water and have
sparse vegetation (bushes, coconut palms); they are circular in shape with a
diameter of 300 to 500 metres; two of them have wells.
Overall, the area has the reputation of being dangerous ground for
shipping, owing to the poor visibility of the shoals, very few of which are
marked or buoyed, such markers as there are being rudimentary. The
shipping routes give them a wide berth, passing on the south-east flank, in
the corridor which separates this area from Palawan Island. The only
remotely detailed observations were made at the end of the last century by
the British vessel Rifleman, which took soundings and noted some co-
ordinates, not without encountering a whole collection of wrecks washed
onto the shoals by the currents. The area is now visited only by a few
Chinese fishermen from Hainan, who find an abundance of turtles and sea
cucumbers there; it appears that some of them built temporary shelters, most
of them now destroyed, on the above-mentioned islands.
No trace of any document relating to the territorial situation of the islands
has been found in the Ministry's archives.
However it should be noted that the quadrilateral to which Mr Kurosawa
refers overlaps the territorial waters and the dependent territory of the
Philippines level with Barobao Island, the southernmost land belonging to
the Philippines. The delimitation of the Philippines under Article III of the
Treaty of Paris of 10 December 1898 placed under American rule the area
between longitude 116° and 117° east of Greenwich, and between latitude
7°40' and 9° north. Strictly according to the details given by Mr Kurosawa,
the Japanese claims to the area would totally conflict with the rights of
208 Annex 18
sovereignty granted to the United States. It may be supposed, more

realistically, that they stop at longitude 115° or 116° east of Greenwich,
which would already bring the Japanese very close to the southern islands of
the Philippines and to the immediate vicinity of the Palawan passage.
In any event, the islands in question belong neither politically nor
geographically to the coastline of Annam, being separated from this coast by
an unbroken ocean trench 1,000 to 2,000 metres deep. Similarly, in
geographical terms they are separated from Palawan Island by an ocean
trench where the sounding line reached a depth of almost 3,000 metres.
It therefore seems that France, for its part, has no need to worry about the
mtentions revealed by Mr Kurosawa's inquiry, especially if, as Mr Kurosawa
assured us, the Japanese Government no longer has any interest in the
Paracels archipelago, where we would be more interested in maintaining the
status quo. However, this loss of interest perhaps applies only at the official
level, since information gleaned by the Consul of France in Hoihow early in
1925 makes it clear that Japanese smugglers are still active in the archi-
pelago.
Nevertheless, it cannot be denied that, in the event of war, any exercise
by Japan of a right of surveillance in the region concerned might constitute a
threat to the security of maritime communications between the islands of the
various south-east Asian archipelagos and the Chinese or American ports on
the China Sea./.
ANNEX 19
Note dated 26 November 1928, addressed to the Under-Directorate for Asia

and Oceania
Re: Spratly or Storm Island

The first step is to know the exact terms of the reply to the Japanese
inquiry at the beginning of 1928.
The granting by the French State of a permit to prospect for mineral
deposits is an act of sovereignty, an act which cannot be performed if the
island in question already belongs to or is claimed by some other power.
If the island is at present terra nullius, the granting of a permit to
prospect, followed by actual operations undertaken by the holder of the
concession, and accompanied by any manifestation whatsoever of con-
tinuous occupation by the French State (visits by warships, flag, orders
issued by the police) would be the kind of act establishing the sovereignty of
France over the island in question.
The matter should of course be examined and settled, in consultation with
the Ministries of the Navy and the Colonies. The eventual solution might
well also be applied to all or some of the other islands in the same group./.
(Signed) illegible
ANNEX 20
Letter No. 2276, dated 17 December 1928, from the Acting Governor
General of Indochina, Hanoi, to the Minister for the Colonies, Paris
Re: Rights of sovereignty over the Paracel Islands

The New Phosphates Company of Tonkin has submitted an application to
the Government General requesting permission to prospect for mineral
deposits in one group of the Paracel Islands. The application was accom-
panied by four mineral prospecting declarations, together with the correct
documents, on which the appropriate duties had been paid. This procedure,
though the Company concerned does not know what the eventual legal
outcome of its application might be, in a way confers virtual rights upon it,
as it were, against the time when the question of the exercise of our
sovereignty over the Paracels is settled positively. However, for the time
being, any decision, prospecting or settlement must be entirely the responsi-
bility of the individuals concerned.
I have replied to the New Phosphates Company of Tonkin along these
lines. In the present state of affairs, the plans it has submitted to me, like all
those it previously submitted for that matter, are unlikely to come to
anything.
This is not the only instance of a challenge to French sovereignty over the
islands surrounding the Indochinese Union. The present Governor of Hainan
Island, General Gaston Hoang, recently planned to sail to the Paracels for the
purpose of recognizing them as Chinese territory. I do not know whether the
trip actually took place, but according to information supplied to me by
Reverend Father Savina, a missionary priest who is General Hoang's trusted
adviser as well as being our most loyal informant, it would take very little
for the intentions of the Governor of Hainan to be put into practice, spurred
on by the ever-increasing megalomania of Chinese nationalism. It is
therefore time for us to take the initiative and to assert rights which appear to
be recognized both in historical documents and by geographical realities. I
am in the process of having the Foreign Relations Department prepare a
Note summarizing the various aspects of the Paracels question; however I
would be most grateful if, pending the Note, you could provide some
pointers to enable me to speed up decisions should the Chinese claims
become more specific.
Annex 20 211
Your pointers should be seen against the background of the Japanese

intentions which were the subject of our letter No. 1763 of 26 December
1927 and your reply No. 77 (Political Directorate) of 12 May 1928./.
(Signed) R. Robin
ANNEX 21
Note No. 268, dated 26 February 1929, from the Minister for Foreign Affairs
(Directorate for Asia and Oceania), Paris, to the Minister for the Colonies,
Political Directorate, Third Bureau, Paris
Re: Right of sovereignty over the Paracel Islands

By a letter - No. 252 - of 18 February, further to your letter to me of
11 January under the stamp of the Directorate for Economic Affairs, First
Bureau, you sent me a copy of a letter from the Governor General of
Indochina, No. 2276 of 17 December last, concerning the possible designs of
the Chinese Government on the group of islands known as the Paracels.
In that letter, the Indochinese administration now supports the view that
France has sovereignty over the archipelago and to that end puts forward
historical arguments which it intends to develop in a Note to be sent to you
shortly.
As you point out, the Indochinese administration thus appears to
advocate, in respect of the Paracels, a position contrary to that decided upon
by the French Government in 1921, and which apparently entailed recogniz-
ing Chinese sovereignty over the archipelago, subject to the application of
the Franco-Chinese Agreements of 2 and 15 March 1897, and of 4 and
10 April 1898.
The letter from the Governor General of Indochina dated 17 December
1928, enclosed with your above-mentioned letter - No. 252 - of
18 February, does not seem to me sufficiently explicit to warrant a change in
that attitude.
I would therefore be grateful if you would send me the note announced
by Mr Robin at your earliest convenience and once I have it I shall ensure
that I give the matter further consideration if necessary./.
ANNEX 22
Letter of 18 February 1929 from the Minister for the Navy, acting Minister
for the Colonies, Paris, to the Minister for Foreign Affairs (Directorate for
Political Affairs and Trade (Asia - Oceania)), Paris
Re: Rights of sovereignty over the Paracel Islands

Further to my letter No. 125 of 22 February 1929 concerning an
application for a mining permit on Storm or Spratly Island, I have the honour
to enclose, for your information, a copy of a further letter from the Governor
General of Indochina, No. 2276 of 17 December last, this time on the
possible designs of the Nationalist Chinese Government on the group of
islands known as the Paracels.
I would particularly draw your attention to the paragraph in this
document where the acting Governor General of Indochina asks, as a matter
of urgency, for pointers he could follow should the Chinese claims become
more specific.
In present circumstances, the Indochinese administration's desire for
pointers dictating what its conduct should be, if necessary, is legitimate, and
I feel it should be granted as soon as possible.
Nonetheless, it will certainly not have escaped your notice that Mr Robin
currently supports the argument of national sovereignty, based on historical
documents which, so far as my Ministry is aware, have not been mentioned
before. Quite the contrary, the position apparently agreed, in 1921 in
particular, was to recognize Chinese rights to the islands 'under certain
conditions of security and non-cession'.
Pending receipt of the background note announced by Mr Robin, it would
now seem that any guidelines issued to the Indochinese Government can
now only be a matter of wait and see, unless a summary of the arguments of
the local administration is requested forthwith by cable and received by the
same means.
I would be most grateful to have your views on this matter at your earliest
convenience, which will enable me, with your full consent, to furnish the
Governor General of Indochina with the pointers he requests as a matter of
urgency.
P.S. As I close this letter, the Ministry has received a report from the
Governor General of Indochina on the political and economic situation in
China. The following passage in the report relates precisely to the above
214 Annex 22
question, apparently substantiating the view that the historical rights referred
to several times by Mr Robin relate to the Kingdom of Annam:
(...) 'General Gaston Hoang had planned to visit the Paracels, no doubt
with the intention of asserting Chinese sovereignty there. Annam however
possesses historical rights over this group of uninhabited islands which are
much less open to question than any Nationalist China might claim, and
France, which has a duty to safeguard the integrity of the kingdom under its
protection, would do well not to allow itself to be taken by surprise by the
fait accompli of Chinese possession which it would no doubt be obliged to
accept.'./.
ANNEX 23
Coded telegram dated 3 April 1929, from the Governor General of

Indochina, Saigon, to the Ministry of the Colonies, Paris
135 S - Reply 304 of 9 March. Having personally considered matter, do

not share view expressed by my predecessor ad interim under No. 2276 of
17 December. In fact, situation has not changed appreciably since Note sent
to your Ministry in 1921. New Note would only confirm this. Recent interest
in Paracels by several business groups, in the form of actually rather vague
applications for mining concessions and certain press articles, frankly does
not seem to me to warrant fresh conclusions. In any event, it does not seem
best moment at present to re-open any dispute on ownership of said islands.
I therefore still think that, especially in present circumstances, the attitude
adopted in 1921 and since maintained, in full agreement with the Ministry of
Foreign Affairs, should be adhered to.
(Signed) Pasquier
ANNEX 24
Official telegram of 14 March 1930, from the Governor General of

Indochina, Hanoi, to the Ministry of the Colonies, Paris
No. 501
Reference your letter 184 of 31 December last, to which reply sent by
mail.
Consul France Canton reports Legation Kwangtung Provincial Council
adopted 14 February last resolution to mine guano deposits Paracel Islands at
own expense. Remind you French Government has never officially recog-
nized Chinese sovereignty over archipelago, nor definitively abandoned
asserting historical and geographical rights Empire of Annam, which it had
only considered formally relinquishing for reasons political expediency and
in exchange guarantees re non-fortification and non-cession archipelago to
foreign powers. Failing such agreement, and question remaining as indicated
in my cable No. 135 of 3 April last, we cannot remain indifferent to fresh
assertion sovereignty by Chinese authorities. Please inform diplomatic
services./.
(Signed) Pasquier
(Certified accurate)
A NNEX 25
Letter of 28 July 1930 from Mr Wilden, Minister Plenipotentiary of the

French Republic in China, to Mr A. Briand, Minister for Foreign Affairs
No. 350
Rights of France over the Paracel Islands
By your telegram No. 113 of 6 June last, Your Excellency informed me
that the Ministry of the Colonies, reversing its previous position, was
preparing to claim sovereignty over the Paracels for the benefit of Annam
and asked my opinion on the matter.
By its telegrams No. 117 and No. 239 dated, respectively, 20 March and
27 May last, this Legation has stated its views on the matter. While France
has never officially recognized China's rights over the archipelago, the fact
nevertheless remains that we have deliberately not lodged any protest at the
acts by which that country, in its endeavour periodically to interrupt the
prescription which could be invoked against it, has for some years sought to
make plain that it considers the Paracels as dependencies of its territory and
is attempting to confront us with a fait accompli./.
ANNEX 26
Letter No. 1512-A.Ex dated 18 October 1930 from the Governor General of
Further to your telegram 1164 of 29 August and your communication 149

of 1 September last, I have the honour to enclose herewith the information
on the Paracel Islands referred to in my telegram 1343 of 13 August, and
which you requested of me on 23 July, further to an inquiry from the
Minister for Foreign Affairs.
As stated in my above-mentioned telegram 1343, on receipt of your
instructions I set about obtaining as soon as possible, from the services of
this Government General and from the consular posts concerned, all the
documents which might provide a detailed answer to the three questions put
by the Quai d'Orsay, which you forwarded to me in your 1021.
In reply to the first of these questions, please find enclosed certified
copies of the documents traced by Mr Le Fol in the archives of the
Residency and of the Hue court, as follows:
1. An excerpt from 'Dai Nam-Nhat-Thong-Chi', book 6, (Annals of the
Annamese Government), written in characters with a translation into French.
2. An excerpt from 'Nam-Viet Dia-Du', volume 2, (a geographical work
compiled under Minh Mang), written in characters with a translation into
French.
3. An excerpt from 'Dai-Nam-Nhat-Thong-Chi' (a geographical work by
Duy Tan), written in characters with a translation into French.
These documents, to which I have appended four letters and four maps,
are the only ones relating to the Paracels which it has been possible to trace
in Hue. You will probably find, as I do, that they are sufficient to establish
incontrovertibly that Annam took effective possession of the archipelago
well before 1909, the date on which the Chinese appear first to have
expressed their claims to sovereignty over the Paracels. Indeed, in re-
establishing the Hoang-Sa Doi in 1816, Emperor Gia Long himself was
merely reviving an old tradition. Under former Annamese dynasties, this doi
travelled to the Paracels in the third month of each year, returning in the fifth
month to offer the products collected on the islands for sale in the capital.
The expedition ordered by his son Minh Mang is proof of a continuity of
views within the Nguyen dynasty, a continuity which the Chinese
Government would be hard put to lay claim to itself.
Annex 26 219
I must particularly emphasize the value of this documentation, which I

feel would constitute our best argument in any diplomatic disputes with
China.
As for the other questions put by the Minister for Foreign Affairs, I have
not been able to assemble such detailed documents as on the first one.
Nevertheless, it should be possible to remedy this deficiency, partly by
certain responses to my requests for information currently awaited from the
Consulates in Hoihow, Pakhoi and Canton, and partly by means of records
which my services are still trying to track down or which may be run to earth
in the Ministry itself. Actually, it was at the instigation of the Ministry of the
Colonies, following a report on the Paracels by the French Consul in
Hoihow, that in 1898 Mr Paul Doumer, the then Governor General,
commissioned a feasibility study on the construction of a lighthouse on one
of the islands. The relevant records have not yet been traced at the Public
Works Department. I have given instructions for a search to be made in the
central archives of Indochina. It might even be possible to find copies in the
archives of the Ministry, which probably received copies of them at the time.
This construction project was not* subsequently abandoned.
I enclose herewith a copy of a letter dated 14-9-1916 from the Head of
the Public Works Department and accompanied by an engineer's report on
this matter. These two officials saw fit to make a number of reservations on
this matter concerning the validity of our rights. There is no reason to accept
the assertions made by these technicians based on inaccurate knowledge of
the matter from the diplomatic angle. Whatever the case, these documents
prove that the French administration has never ceased to show interest in the
archipelago. Incidentally, it would be easy to prove that the Paracels are still
visited by French nationals. Annamese fishermen sometimes come here
during their fishing trips for a perfunctory preparation of their catch. I think I
should also add that a number of people representing French business
interests in Indochina have contemplated exploiting the islands. I have duly
informed you of applications for concessions sent to me on this subject.
Please find enclosed a copy of a letter dated 14 August from the Director of
the French and Colonial Finance Company concerning a planned expedition
to gain a precise idea of what the resources in these islands are.
As for the Ministry's third request, I would ask you kindly to refer to my
above-mentioned letter No. 704, in which 1 gave an account of the looting of
the wrecks of the Bellona and Huneji Maru in 1898.
It is perhaps noteworthy that, the same year the Government General was
concerned with the problem of how to guarantee the security of navigation in
* Sic.
220 Annex 26
the waters of the archipelago, the Chinese Government declared that it had
lost interest in the Paracels, deserted islands which belonged no more to
China than they did to Annam. It was not realized that an official
confirmation of this reply to the British Consul in Canton would constitute a
virtually watertight argument in support of our case. I put this interpretation
of the matter to the French Minister in Peking, who by telegram of 18—8
last informed me that he was asking our Consul in Canton to question his
British colleague on the subject. I shall not hesitate to let you know as soon
as I find out. Meanwhile, I enclose herewith a copy of a telegram, No. 104,
from Mr Eynard concerning the above-mentioned diplomatic incident.
Please also find enclosed copies of two letters, Nos. 71 and 89, from the
French Consulate in Hoihow containing some interesting views on how the
Canton Government is pressing China's alleged rights to the Paracels, and a
copy of letter No. 149 from the French Consulate in Hong Kong. Attached to
the latter is a note on the Paracels by a British national, Mr Dowdal.
Apart from the documentary interest of this note, which sets out the
strategic value of the Paracels, the fact that its author spontaneously came to
discuss with our Consul the results of his expedition seems indicative of the
opinion in foreign circles in southern China on the merits of the Chinese
Government's claims. This communication is interesting in the same way as
the approach to this Government General by Japan in Hanoi, and which I
drew to your attention by my above-mentioned letter No. 704.
(Signed) Pasquier
ANNEX 27
Telegram of 4 July 1931 from the Ministry of the Colonies to the

Government General [of Indochina]
No. 680
Reply to your telegram 903 -
Here is summary consultation legal adviser (one word indecipherable)
before Ministry of Foreign Affairs:
Rights Annam, at beginning of the 18th century existed but very hard to
predict outcome arbitration owing to absence for over a century. Also,
documents confirm taking possession of Paracels by Annam mission 1909
and various displays since then by Chinese authorities. Arbitration can only
focus on survival rights Annam in 1909. Legal position Hue could be
strengthened by surveillance mission vessel Paracels archipelago, but this
activity should avoid form taking possession and have appearance of simple
exercise pre-existing sovereign rights.
Cable your views ./.
(Signed) Reynaud
ANNEX 28
Decree by the Governor General of Indochina
The Governor General of Indochina

Grand Officier de la Legion d'Honneur No.
3282
Having regard to the Decrees of 20 October 1911 laying down the powers
of the Governor General and the financial and administrative organization of
Indochina;
Having regard to the Decree of 5 October 1936;
Having regard to the Decree of 28 December 1931 regulating the allow-
ances and benefits in kind and in cash;
Having regard to Decree No. 156-SC of 15 June 1932 creating an admin-
istrative delegation in the Paracel Islands under the authority of Thua-thien
Province (Annam) and named the Delegation of the Paracels;
On the proposal of the Chief Resident of Annam:
DECREES:
Article 1. - Decree No. 156-SC of 15 June 1932 shall be amended as
follows:
Article 1. — Two administrative delegations shall be created in the
Paracel Islands under Thua-thien Province (Annam) and named Delegation
of the "Crescent and Dependencies" and "Amphitrite and Dependencies".
The boundary between these two administrative districts shall be determined
by the line of the 112th meridian, except where it intersects Vulladore Reef,
which is wholly contained within the Delegation of the Crescent.
Article 2. — The officials in charge of these Delegations in their capacity
as Delegates of the Resident of France at Thua-thien shall reside on Pattle
Island and Woody Island respectively.
Article 3. — In this capacity, they shall each, to cover the costs of
representation and tours of duty, be entitled to an annual allowance of 400
piastres (400$00) laid down in the Decree of 28 December 1934. This
allowance shall be chargeable to the local budget of Annam, Section 12,
Article 6, paragraph 3.
Annex 28 223
Article 2. — The Secretary General of the Government General of

Indochina and the Chief Resident in Annam shall each, in so far as it
concerns him, be responsible for the implementation of this Decree.
Hanoi, 5 May 1939
(Signed) J. Brevie
ANNEX 29
Encoded telegram of 8 March 1929
Hanoi
I have informed the Governor of Cochin China that, like you, I have no
objection to awarding a mining research permit to the Tonkin Phosphates
Company in the Spratly Islands, on the understanding that this permit is
issued at the risks and perils of the parties concerned should this group of
islands be validly claimed by some other power. Have therefore asked him to
consider Spratly Islands as administratively attached to Baria and to accept
declaration research subject to reservations spelled out above and inform
Phosphates Company above decision, clearly stating those reservations. I
have invited him to discuss this matter with the Commander of the Navy and
to ask him to consider mission soon with an appropriate unit at his disposal
for effective reconnaissance of the island. Also discussion with Commander
Bonnelli during my forthcoming visit to Cochin China. I would ask you to
keep diplomatic services informed of foregoing measures. After my talks
with Senior Commander of troops Saigon, I shall contact you in due course
with a view to informing, if appropriate, diplomatic services and Ministry of
the Navy of any proposals ./.
(Signed) Pasquier
ANNEX 30
Decree by the Governor of Cochin China (J. Krautheimer), Saigon,

21 December 1933
THE GOVERNOR OF COCHIN CHINA,

Officier de la Legion d'Honneur
Having regard to the Decree of 20 October 1911;
Having regard to the Decree of 9 June 1922 for the reorganization of the
Colonial Council of Cochin China and to the subsequent texts;
Having regard to the Opinion published in the Official Gazette of the
French Republic of 26 July 1933 by the Ministry of Foreign Affairs relating
to the occupation of certain islands by French naval units;
Having regard to letter No. 034, and letters No. 2243-AP of 24 August
and 14 September 1933 from the Governor General concerning the
annexation of the islands and islets in the Spratly or Storm group;
Having regard to the deliberations of the Colonial Council dated
23 October 1933;
Having heard the Conseil prive,
DECREES:
ARTICLE 1. - The island named Spratly and the islets named Amboyna
Cay, Itu-Aba, Two Islands group, Loaito and Thi-tu which fall under it,
situated in the China Sea, shall be attached to Baria Province.
ARTICLE 2. - The Administrator, Head of Baria Province and the Head
of the Land Registry and Topography Department shall be responsible, each
in so far as it concerns him, for implementing this Decree.
Saigon, 21 December 1933
(Signed) J. Krautheimer
Certified true copy of the original
Filed in the archives of the Conseil prive
ANNEX 31
Letter of 30 March 1932 from the Minister for National Defence (Navy) to
the Minister for Foreign Affairs - Directorate for Political Affairs and Trade
(Asia-Oceania)
Re: Taking possession of the islands west of the Philippines

By letter 110 of 27 February, you asked me to take possession of the
islets and reefs situated between latitude 7° and 12° N and west of the
triangular American zone of the Treaty of 10 December 1898.
I have the honour to inform you that I am minded to take possession of
these islands in order to prevent a foreign power from claiming sovereignty
over them.
This pre-emptive taking of possession cannot signify that I have the
slightest intention of making use of this archipelago for military purposes.
Please find enclosed with this letter a note from the Hydrographic Service
describing the archipelago in question, which is composed of an unexplored
part and a part which is better known.
It is not possible to take possession of the unexplored part owing to the
dangers to navigation in those waters.
In the better-known part, the idea of taking possession of banks not
permanently uncovered, such as Rifleman Bank and Ardasier Bank referred
to in letter No. 242 of 27 February 1931 from the Minister for the Colonies,
should be abandoned; in reality, such possession would be pointless and
contrary to international law; it might serve as a precedent to foreign powers
for the purpose of claiming fishing banks or banks adjacent to our coasts yet
situated outside our territorial waters.
Only islands which can be occupied should be taken possession of, in
other words, those on which men can not only land but also sojourn; reefs,
some of whose crowns are constantly above water, do not meet this
condition.
In my view it is not necessary to take possession of all the islands which
can be occupied. The act of taking possession can have effect within a
certain radius around the landing site; if 100 kilometres is accepted as the
length of this radius, four landing sites (Nos. 1, 2, 3, and 3 A on the attached
sketch, the first of which was occupied on 13 April 1930) would suffice for
an affirmation of our sovereignty over virtually all the known part of the
archipelago in question.
The act of taking possession would be worded as follows:
'This... day of... 19... I the undersigned... have taken possession, on
behalf of France, of... Island situated at... and of the islands or islets
situated within a radius of one hundred kilometres from the point indicated
above.
(Signature)
This record was also signed by the persons designated below'
(Signatures)
To effect an act of sovereignty over all the known part of the archipelago,
it would also be necessary to land at points A and B in the sketch, but as
these points do not lend themselves to occupation, they must not form the
object of any taking of possession. The landing sites and what might be
termed the radius of sovereignty were only given above by way of
indication. It will be for the ship responsible for taking possession of the
archipelago to land on all the islands which can be occupied and where it is
feasible to perform this operation, in order to multiply the points of taking
possession and to reduce the radius of sovereignty accordingly.
You asked me to take possession of the archipelago as soon as possible.
However, this operation needs to be carried out in very fine weather, which
is most likely to occur in the period between the monsoons, in April and
September, but as the atmosphere is sometimes disturbed in these waters by
typhoons at the September period, it is feared that the operation planned
cannot be carried out before April 1933. When I send a copy of this letter to
the Commander of the Navy in Indochina, I shall ask him to arrange for the
archipelago to be taken possession of as soon as he considers the
atmospheric conditions favourable.
ANNEX 32
Note from the Ministry of Foreign Affairs, Directorate for Political Affairs
and Trade, (Asia), 10 August 1940
Re: Spratly Islands

The Spratly archipelago, in the China Sea, includes, to the south of
Hainan Island and to the west of the coast of Annam, a number of islands
and reefs, whose economic and perhaps also strategic value only appears to
have become apparent at the end of the last century.
At that time, Japanese fishermen endeavoured to mine the guano covering
the uninhabited islands, but very soon abandoned the attempt. Annamese
fishermen also put in various appearances and, after aerial reconnaissance
exercises by the French Navy, it was realized that this archipelago could
perhaps be used as a landing strip for planes, as a base for seaplanes and
even as a refuelling stop for ships in the fleet.
In fact, these islands were regarded as res nullius until 1930, when the
Government General of Indochina and the French Navy began to show
interest in the Spratlys. It was decided to incorporate the islands into the
French Empire and the act of possession was duly effected by an advice-boat
from our Navy. The French flag was raised on the main island. A com-
memorative boundary-marker containing the documents relating to the
taking of possession was erected.
This act of possession formed the object of a decree published in the
'Official Gazette' and attaching the Spratlys to an administrative district of
Annam. Foreign powers were informed. Great Britain took formal note of
the fact, despite having pointed out that the island had previously been
visited by a British ship. Japan was the only country to raise difficulties
about recognizing the legality of our act of possession and, alleging that
there had been previous incursions by Japanese fishermen and a short-lived
attempt to mine phosphates in the archipelago, invoked its titles of first
occupant.
Talks were initiated in both Tokyo and Paris regarding the Japanese
claims. In the course of one of the discussions held at the Ministry between
Mr Seto, Japanese Ambassador, and Mr Leger, in August 1934, it seemed
that the Japanese Government was not digging its heels in and that the matter
could be regarded as settled.
During the ensuing years, no effort was made, either by Indochina or by
the French Navy, to give concrete form to our occupation, while Japanese
fishermen continued to appear from time to time.
On the outbreak of the Sino-Japanese War, in August 1937, the Japanese
Navy immediately expressed its intention to extend its activity to the waters
off southern China. It set a course for the Spratlys, and having arrived there,
landed its men then took them off again.
The response to the protest which our Ambassador was instructed to
lodge in Tokyo was that the Japanese Government had never recognized the
legitimacy of our possession of the archipelago. However, the British for
their part reaffirmed their recognition of our sovereignty and proposed that
we lease them a site which could be used as an air base. Our reply was that
we would be developing such bases ourselves and that, as and when
appropriate, would authorize British planes to use them.
Subsequently, the British Ambassador supported his French colleague in
his approaches to the Gaimusho* aimed at ensuring that our rights over the
archipelago were respected.
Being determined to gain a foothold in the Spratlys, the Japanese
conceived the idea of setting up a company for the mining of guano and
exploiting fishery products. The members of this company, who in reality
were Formosan militia led by Japanese officers, set up camp and installed a
radio station. Finally, to place themselves in a legal position on a par with
ours, the Imperial Government published a decree under which the archi-
pelago was annexed to the Japanese Empire and attached to the adminis-
trative district of Formosa.
The protests which the French Ambassador was immediately asked to
lodge with the Tokyo Government were dismissed out of hand.
The Ministry of the Colonies, in agreement with the Ministry of Foreign
Affairs, decided for its part to mark the French presence in the Spratlys and
dispatched Annamese militia there, who were also installed in a camp, but
who were to behave towards the Japanese like simple fishermen. They set up
a radio station and were supplied by a cargo ship which periodically called in
there from Annam. At the request of the Ministry, the Navy had a vessel, on
a tour of duty in the South China Sea, put in at the Spratlys.
There were moments of quite serious tension in the archipelago between
the occupants of the French and Japanese camps. Despite the rebuffs they
suffered, our representatives resolutely carried out their mission and, no
doubt following instructions received from Tokyo, the Japanese grew more
* Gaimusho = Ministry of Foreign Affairs

230 Annex 32
courteous so that relations between the occupants of the archipelago

eventually became correct if not actually cordial.
In the diplomatic arena, the French Government, in its representations to
the Japanese Government, invoked the Franco-Japanese Treaty of 1907,
affirmed the legitimacy of its rights to the archipelago and, to prevent the
conflict from turning sour, even considered putting the matter to
international arbitration. The Japanese declined.
Each of the Parties has doggedly maintained its position and the ambigu-
ous situation of the Spratly Islands has so far not altered./.
ANNEX 33
Letter from General Juin, Chief of Staff of National Defence, to the

Chairman of the Committee on Indochina, 7 October 1946
Cf: Letter 42/AS from the Ministry of Foreign Affairs transmitted under
dispatch note 1048 LC of 20 September 194 [illegible]
Re: Paracel Islands
Thank you for sending me the letter quoted in reference from the
Ministry of Foreign Affairs asking me to let you know my conclusions on
the matter.
There can be no question of establishing a military base in the Paracels;
occupying them therefore has no positive military benefit for us. On the
other hand, it is of the utmost importance for France to prevent any sign of
occupation by a foreign power of the islands which command access to the
future base of Cam-Ranh and dominate the sea route Cam-Ranh-Canton-
Shanghai.
If it transpires that the occupation of the Paracels leads to a resumption of
the discussion on our rights of sovereignty, it will, with the force of the fait
accompli, consolidate our position in the any future legal debate on this
matter between France and China.
(Signed) Juin
ANNEX 34
Confidential Report of 29 January 1947 on French naval mission to Pattle

Island from Captain Hennequin, Commander, 8th division of advice-boats
and Captain, advice-boat Commandant Duboc, to Rear Admiral,
Commander of the Navy in Indochina
References: Instruction N. 52/EMP/TS of 16 January 47

Message 63/EMP/TS of 20 January 47 Instruction
N. 69 EMP/TS of 22 January 47 Instruction N. 33
EM 3 Mar. Ind of 23 January 47
Enclosures: Instructions from Major Delay, Deputy to Colonel in command

Nhatrang sector, handed to head of detail party
1.-MOVEMENTS
- 23 January 1330 H Set sail from Saigon
- 24 January 1730 Docked in Nhatrang
- 25 January 1100 Sailed from Nhatrang
- 26 January 1330 Anchored at Pattle Island
- 29 January 1830 Set sail for Tourane.
2. - LANDING OF NATIVE GUARDS AND RE-EMBARKATION OF

NAVAL DETACHMENT
26 January
Weather fair - Wind NNE 1 to 2. Lighterage easy and tide favourable for
coming alongside jetty.
Landed personnel, with individual kit and weapons.
Radio link established with Nhatrang at 1600 hours.
Unloaded 10 tonnes of equipment and supplies. Towed a water container
to the southern shore, together with the whaler to try it out.
At nightfall, wind got up; squalls
27 January
Fresh monsoon, squalls, choppy sea. Lighterage impossible. Link with
land only with whaler. Detachment setting up camp.
28 January
Monsoon dropped slightly. Whaler then launch put to sea.
Annex 34 233
Whaler rowed ashore, southern beach. 12 casks transported one by one in

hold. Slow but steady progress in choppy sea.
Launch transported equipment and re-embarked naval detachment from
jetty.
29 January
Gradual improvement to fair weather.
Transport operations completed.
At 1600 short ceremony of hauling down the naval colours and hoisting
the colours of the relief detachment.
At 1630, Major Delay, Deputy to Colonel in command Nhatrang sector,
on mission on board, having carried out a kit inspection and transmitted his
instructions to head of detail party, this senior officer and myself left the
island.
On our departure, the detachment had 4,000 packs of iron rations and
fresh water, including 2,430 packs of 'Pacific' rations.
3. - CURRENT SITUATION OF THE ISLAND
a. - General situation
The naval detachment reported that the situation had remained calm
during its stay.
There are some 15 Chinese living on the island where they earn their
livelihood from fishing and collecting shells destined for China.
Junks apparently call in to collect what they have caught.
These Chinese seem harmless and are willing to lend a hand for a little
food or simply in exchange for the right to pursue their activity.
Nevertheless, they could be observers in the pay of the Chinese Government.
Robert Island is deserted.
On Money Island, there is only a handful of fishermen with sampans.
b. - Material situation
l) - The living quarters are dilapidated. The shell of the buildings
has suffered damage from shells and machine-gun fire. The woodwork needs
repairing. An assistant from the Aimed Forces Equipment Department has
made a detailed examination.
ll) - The water tanks seem to be in good condition. They have a
total capacity of some 200 cubic metres. At present, they contain only 28
cubic metres of usable water.
lll) - The two wells providing slightly brackish water are in
working order. There are apparently also surface springs providing slightly
brackish water.
234 Annex 34
4. - The lighthouse could easily be restored to working order. The

tower needs re-pointing and painting. Repairs to ladder and upper safety
railing. Repairs to gas piping and reconditioning of burner.
5. - The radio and meteorological station currently consists of only
an empty building with no doors or windows. The shed for the
meteorological instruments, which is empty, is still standing.
There is no longer any radio equipment from the former station or
any meteorological observation instruments.
The two masts, 28 metres high, are in good condition. One of the
shrouds is missing from one mast and three from the other.
6. - The maritime facilities need refurbishing but can still be used
for docking of motorized craft the size of a launch from a large vessel
subject to careful timing and observation of the tides (about 2 hours before to
2 hours after high tide).
Masonry on the slipway: 120 metres. Gauge: 2 metres. The launching
cradle and its carriage are in good condition. They permit the hauling up of a
craft 15 metres in length, 2.4 metres in the beam and 1 metre draught (about
15 tonnes).
The lighter Bourrasque which has run aground on the beach is
holed, rotten and beyond repair.
Its hauling winch is also broken.
4. - URGENT REPAIRS REQUIRED
A cursory examination of the present condition of the various facilities
suggests some initial steps that might be taken to maintain a force of some
30 men in occupation of the island. These steps are listed in order of priority:
- repairs to guttering and drainpipes,
- provision of a canvas water container with a capacity of 10 cubic
metres enabling rapid shipment of drinking water,
- repairs to woodwork in living quarters,
- repairs to shrouds on radio masts,
- repairs to rails on slipway,
- construction of narrow-gauge railway,
- structural repairs to buildings.
5. - MARITIME EQUIPMENT AND LINKS
A station ship which could be hauled up the slipway (the solution opted
for in 1938 incidentally) is all that could be supplied to Pattle Island, there
being no anchorage sufficiently sheltered from the fresh winds which blow
very frequently on the island.
Annex 34 235
While the possibility of providing the island with a launch of about 15

tonnes which can be hauled up the slipway is under consideration, it would
be useful as soon as possible to send a flat sampan to the island equipped
with sail and outboard motor, which could easily be hauled up the slipway in
its present condition.
This craft would be adequate for showing the flag and for surveillance of
the neighbouring atolls.
In our view, fresh supplies to the island will ideally be required once per
month, the amounts needed being about 10 tonnes of provisions and 10
tonnes of water.
The supplier must have motorized craft in excellent condition and equip-
ped with gear properly designed for hauling up in choppy seas.
Fresh supplies ideally need to be delivered during periods when the high
tide occurs by day. This period would seem to be the one close to the spring
tides.
6. - HYDROGRAPHIC INFORMATION
a) - ANCHORAGE The Commandant Duboc dropped anchor at 155
some 800 metres from the lighthouse, the depth of the sea at that point being
42 metres, on a seabed of sand and shells, with 4 lengths of chain in the
water. The anchor held very well in a fresh wind.
A good mooring mark is the following: proceed in a northerly direction
towards the centre of the house to the right of the post of the pontoon and
drop anchor when in sight of the rock visible at 306. At that moment, the
distance from the east radio mast is 900 metres.
b) - DOCKING
Motorized craft can come alongside the slipway from 2 hours before to 2
hours after high tide, and can then beach on the shore visible between the
coral.
7. - CONCLUSIONS
Independently of all other considerations, it seems to us that the sub-
stantial facilities built on the island by the Government General and their
present state of conservation warrant sufficient effort being made to see that
this island remains a possession of Indochina.
Regular operation of the lighthouse and the meteorological station would
mean that our occupation could be seen - and to a far from negligible extent
- as a form of international co-operation.
This result, it would seem, could be achieved quite quickly without the
need for great expenditure.
236 Annex 34
The present detachment will soon be in a position to transmit a daily

summary weather bulletin to Nhatrang and Tourane.
Where deliveries of fresh supplies by sea are concerned, experience has
shown that the landing of fresh water in casks is a very heavy burden for the
supplier.
These casks have to be delivered either by rowing boat or motorized
craft. The detachment currently has a total of 65 such casks.
Until such time as the water tanks are repaired and filled, a canvas water
container with a capacity of 10 cubic metres needs to be delivered as soon as
possible to the detachment occupying the island and kept there.
On a different topic, we consider that command of the island should
ideally be assigned to an officer from the regular army, young, dynamic, full
of drive, with a basic knowledge of naval matters, having organizational
ability and a pioneering spirit, as well as diplomacy.
Some circumstances might entail skilful negotiations in which imagina-
tion and finesse, allied to firmness, would not go amiss.
The island is an ideal spot climatically. Such a post would give an officer
whose health has suffered from service in Indochina an opportunity to
recover at the same time as performing a useful service to his country.
(Signed) Hennequin
Annex 34 237
GUIDELINES ON CONDUCT REQUIRED

While strictly carrying out the orders regarding defence, bloody incidents
should be avoided. Display a great deal of tact, courtesy and amiability.
Convince people that the island is French. Only use force as a last resort.
Various circumstances could arise, such as:
a) A unit from a foreign power could drop anchor off the island.
1. Immediately report this by radio to the Commander of Nhatrang
sector, then Tourane.
2. Set the appropriate alarm procedures in motion.
3. Observe the vessel which has moored.
4. If a launch is put to sea and approaches the jetty, the head of the
detail party should courteously greet the officer on reconnaissance
and ask him for certain information: nationality, purpose of visit,
where he hails from, etc. He will explain to him that the island is a
French possession, offer him refreshment. But he will not allow
men to disembark onto the jetty. He will not allow the officer to
venture further onto the island.
If the officer will not be persuaded, the Head of Detachment should
stress the fact that the post is in constant radio contact with the
Navy, that a cruiser is in these waters, that it has a sizeable com-
plement of men, etc. In other words, bluff to prevent any incident.
Keep the Commander informed.
In no circumstances should the head of the detail party agree to
board an apparently unfriendly foreign vessel.
b) A number of light craft appear off the island
As in the first case, report back. Set the appropriate alarm pro-
cedure in motion. Observe the movements of the craft.
If the craft proceed towards the jetty, signal to the effect that only
one craft is authorized to come alongside.
Only permit a person of rank to alight from this craft. Greet him
courteously, ask him for certain information: nationality, purpose of
his mission, where he hails from, etc. Make him understand that the
island is a French possession and that it is strongly defended. Do not
permit anyone to venture further onto the island. If the officer insists,
'bluff for all you are worth': constant radio link with the Navy, cruiser
238 Annex 34
anticipated within a few hours, heavily armed, large complement of

men, etc.
NB: These instructions only cover important incidents. They are meant only
as an illustration to indicate the spirit in which the mission assigned must be
carried out.
28 January 1947
Major Delay
ANNEX 35
Telegram from Ministry of Foreign Affairs, Nanking, 8 March 1947
No. 319-320
I refer to my telegram No. 298 in clear sent by diplomatic bag.
A further press article, announcing that two Chinese warships are to be
dispatched to Woody Island, harks back to the 'instructions' which the
Chinese Ambassador is said to have received from his Government with a
view to 'negotiations' with the French Government regarding the case of the
Paracel Islands. This information, like that contained in my communication
referred to above, appears to be contradicted by the information given by the
Director for Europe of the Wai Kiao Pou* to Mr Roux during a general
discussion he had with him yesterday.
Mr Yeh, having spontaneously broached the question of the Paracels, in
fact drew my Counsellor's attention to the fact that the Wai Kiao Pou
continued to be under strong pressure from (certain) Chinese departments to
secure agreement from the French Government to withdraw the military
personnel it has landed on Pattle Island. Yet at the same time, he confirmed
to him that, according to the Chinese Government, this withdrawal was to
precede any resumption of diplomatic talks aimed at an amicable settlement
of the matter and at the conclusion of a special (joint) agreement.
My colleague reiterated our position as set out by the Director for Asia of
the Ministry of Foreign Affairs on 30 January (your telegram No. 99 in fine
to the Counsellor of the Chinese Embassy) and he stressed the fact that the
Wai Kiao Pou should give consideration to the formula which I have already
suggested to him in accordance with the terms of your telegram No. 160 and
which is acceptable to both parties./.
(Signed) Meyrier
Note from the Cipher Department
Telegram No. 298 not yet reached the Cipher Department./.
* Wai Kiao Pou = Ministry of Foreign Affairs

ANNEX 36
Wire from Agence France Presse, Nanking, of 31 May 1947 and telegram of
3 June 1947
FRANCO-CHINESE RELATIONS
Nanking, 31 May 1947
The People's Political Council this morning adopted some 60 resolutions
mostly marking a hardening of the Government's attitude and a more nation-
alistic stance.
Among the main resolutions adopted was the immediate return of Macao
to China and the withdrawal of French forces from the Paracel Islands, 'by
force' if necessary.
The Council also decided to protest to France at the discrimination
allegedly suffered by Chinese nationals in Indochina.
A motion for the return of Hong Kong to China was not adopted.
The resolution relating to the withdrawal of all French forces from the
Paracels states that China must protect its sovereign rights and step up the
archipelago's defences. The Ministry of Foreign Affairs declined to
comment on this decision by the People's Political Council.
Both France and China are known to claim sovereignty over the Paracel
Islands and to have dispatched troops there. France has proposed that the
matter be put to arbitration by the International Court of Justice in The
Hague but this proposal was not accepted by China./.
Annex 36 241
TELEGRAM Nanking,
3 June 1947
I feel it my duty to transmit to you, for information, the following text of
a motion on the Paracel Islands tabled on 31 May in the People's Political
Council:
'In order to rebuild the Paracel Islands and strengthen the defence of our
country, we call upon the Government to guarantee our sovereign rights with
all its might, to precisely delimit our frontiers, to promote national defence
and to reward the servants of China, who have placed all their energies at the
service of recovering this territory'.
As the account by the Agence France Presse correspondent in Nanking of
this motion submitted to the People's Political Council, among 60 other
motions relating to national defence and Chinese foreign policy, was partly
inaccurate, I was anxious give you the exact text./.
(Signed) Sivan
ANNEX 37
Telegram, Saigon, 25 January 1951
No. 153 to 155-Urgent

Re: Your telegram No. 60 of 13 January.
Firstly: French presence in Paracel Islands is still confined to Pattle Island,
the only habitable island in the western group.
Secondly: It cannot be certified that there is no Chinese occupation of
Woody Island, the only habitable island in the eastern group. In fact, to avoid
incidents with Chinese Governments, instructions issued, both to successive
garrisons on Pattle Island and to naval forces, have always limited our action
regarding the eastern group to mere reconnaissance and especially airborne
missions, which were necessarily imprecise.
Thirdly: Results of these reconnaissance missions as well as fact that a
Chinese garrison could not subsist on Woody Island without periodic
supplies which could not go unnoticed, suggest that this island has never
been permanently occupied. On the other hand, seasonal fishermen from
Hainan Island probably put into Woody Island for short stays.
Fourthly: Pattle Island was reoccupied by a French garrison in late 1946. As
approach to island by seasonal fishermen, now Communist in allegiance,
could provoke incidents, it was decided in October 1950, in order to avoid
any possible dispute with Peking Government, to station a wholly Viet-
namese garrison on Pattle Island answerable to the Central Annam Govern-
ment./.
(Signed) Haussaire
ANNEX 38
Note from the Legal Department, Paris, 6 September 1946
Re: French sovereignty over the Paracels

A. BACKGROUND TO THE PROBLEM
The telegram from Admiral d'Argenlieu reports that a naval reconnais-
sance mission has been carried out in the Paracel Islands off Indochina, and
that the French Navy intends to set up a duty station there.
The Admiral asks what our rights over the Paracels are and what steps
have been taken in the past to gain recognition of them.
B. GEOGRAPHICAL AND HISTORICAL DATA
a) Situation of the islands
The Paracel Islands extend from longitude 110° 10' to 112°45' E. They
lie 490 kilometres from Hue (Annam) and 350 kilometres from Yulinkiang, a
port on the southern coast of the Chinese island of Hainan. The islands, some
large and some small, are about 20 in number. Most of them are sandbanks,
the others, about a dozen, are formed of rocks; eight are truly islands.
For a long time, these islands appear to have only been frequented, and
then intermittently, by fishermen from Annam or China taking turtles and
coral. On one of them, Woody Island, a Japanese colony had settled, engaged
in mining guano, and was reconnoitred by our advice-boat Savorgnan de
Brazza.
b) The historical rights of Annam
The first reference to the Paracels appears to be in the annals of the Court
of Hue, where it is stated that, in the year 1700, a company was set up to
harvest the produce of the sea in the archipelago each year.
This maritime activity continued, more or less intermittently. Then, in
1816, Emperor Gia Long decided to annex the islands to Annam.
c) The Franco-Chinese dispute
In 1909, however, the Cantonese authorities dispatched two exploratory
missions and raised the Chinese flag on the islands. In 1920, they proceeded
to administratively attach the Paracels to Hainan Island; in 1930, they
decided to exploit them.
The Chinese claims were disputed by the French Government, acting on
behalf of Annam, its protectorate. On 18 February 1937, in a note to the
244 Annex 38
Chinese Embassy, France proposed an amicable settlement or, failing this, a

settlement by arbitration.
This proposal was not followed up and sovereignty over the islands
remained in dispute. In 1938, France decided to occupy the islands. Yet this
occupation was carried out with the consent of China, then at war with
Japan, and therefore preferring possession of the islands by a friendly
government. It was understood that the rights of the two parties were
reserved.
d) The Franco-Japanese dispute
Japan challenged the French occupation of the islands without putting
forward any strictly legal argument, confining itself to vague assertions,
sometimes that the Japanese colony established on Woody Island had been
there for 60 years - which militated in favour of the acceptance of Japanese
sovereignty by virtue of prior occupation - or else that the islands were
under Chinese sovereignty and that Japan was at liberty to take the war there
and occupy them.
C. LEGAL SITUATION
As Japan is now out of the picture and as its titles are even more
questionable than China's, the question arises as to whether we are justified
in asserting our rights over the archipelago and, if so, how.
a) Annexation of the Paracels by Annam in 1816
This annexation, even without effective occupation, seems to have been
carried out in conformity with the international law of the time. The
annexation therefore conferred legal title on Annam.
However, it is certain that, with the advent of modern principles, this
annexation was no longer adequate. France acting on behalf of Annam as a
protectorate cannot now oppose the appropriation of a res derelicta by a
foreign power.1
b) Indecisive Chinese moves towards appropriation
However before this can happen, it must first be possible to consider the
territory formerly occupied as res derelicta and the foreign power must have
complied with modern international law.
On the latter point, China would not appear to have done more than assert
its claims; it would not appear to have gone as far as actual occupation. The
rights of Annam thus still hold sway; there has been no interruption in them.
1
Precedent of the Caroline Islands, mediation by Leo XIII.
Annex 38 245
c) The French occupation of 1938

If the Paracels had been res nullius, this occupation could not have
conferred legal title on France, since at the time the Chinese Government
formally reserved its rights.
However, in these islands - unlike the Spratlys - it is the rights of Annam
and not her own rights which France is asserting; and these rights are based,
not on the occupation, but on the historical titles of Annam.
In now occupying the Paracels, France is doing no more than confirming
these titles, complying with the requirements of modern international law.
d) Annam's vassalage to China
China's argument that, Annam being in 1816 a vassal of China, to which
it paid tribute, Annam's annexations passed to China, cannot be accepted for
the reason that, although subordinate to China, Annam constituted a separate
legal entity.
D. NECESSITY TO REAFFIRM ANNAM'S RIGHTS
It would seem that, despite the presence of a Japanese company equipped
with arms, the French occupation continued until 9 March 1945, the date on
which the native guards - in all likelihood Annamese quit the archipelago.2
The French occupation would appear to have ceased since that date. It
needs to be re-established in order to avoid all difficulties which the
intervention of a foreign power in the islands could only engender.
Yet there can be no question either of a unilateral annexation, like that of
the Spratlys, which resulted in a notification to the Official Gazette or of
making provision for this annexation in the peace treaty. As the Paracels
belong to Annam there is no reason for us to seek another legal title.
As to whether it is appropriate to include Japan's withdrawal in the peace
treaty, as with the Spratlys, consideration should be given to this in due
course.
Incidentally, when the Paracels are re-occupied, a certain amount of
publicity will be required in order to provoke a reaction from the Powers and
ensure that the rights of Annam are solemnly recognized.
Among the countries from which a reaction can be anticipated is China,
which should ultimately be offered arbitration proceedings in the event that
amicable recognition of Annamese sovereignty cannot be secured.
The choice of arbitration tribunal should be determined by the manner in
which the question is raised.
2
Telegram of 3 June 1945 from Admiral d'Argenlieu.
246 Annex 38
In view of the Agreement of 6 March 1946 between France and Vietnam,

consideration must be given to the question whether Annam should be
involved, in one way or another, in the re-occupation of the Paracels. Prior
consultation with the Vietnamese Government would have a number of
practical drawbacks; also, it is not possible to hoist the Annamese flag
without the participation of representatives of that Government.
As the Agreement of 6 March only recognized Vietnam as possessing
rights of domestic sovereignty, its external status being left in abeyance, the
situation has not changed. It is for France, on behalf of Annam, to assert its
rights in the wider world, France is therefore justified in re-occupying the
Paracels on behalf of Annam. It goes without saying that, if there is any
reaction from Annam, it will be possible, after the event, to involve it in the
operation on the basis of the external status it will be granted./.
ANNEX 39
Letter of 7 May 1951 from the Minister of State with responsibility for
relations with Associated States to the Minister for Overseas Territories
Re: Spratly Islands

I have the honour to transmit herewith a letter dated 24 April 1951 by
which Mr Edouard F. Miailhe, a French citizen, residing in the Philippines,
requests permission to travel to the Spratlys in order to prospect the
phosphate resources this archipelago may harbour and also that he be
granted a concession as and when appropriate.
The request by Mr Miaihle regarding, among other things, the possible
granting of a concession in the Spratlys, raises the problem of the authority
with the power to grant him such a concession and therefore of the legal
status of these territories in the French Union.
Since 1933, when the French Government effectively took possession of
the Spratlys on behalf of France and up to the present day, these islands were
included, for administrative purposes, under the former Government General
of Indochina to which they had been attached. Political developments since
then in the former Indochinese Federation and which resulted in the
replacement of the latter by the three new Associated States have in no way
prejudiced France's rights over this archipelago. Indeed, at no point in its
history did the former Empire of Annam make any claim to these territories,
which, furthermore, it has never occupied; and the fact that the Spratlys were
for a time attached to Cochin China simply for administrative convenience
cannot be relied on by the new State of Vietnam as justification for rights it
never possessed.
The dismemberment of the former Indochinese Federation in favour of
the three independent States of Vietnam, Cambodia and Laos on the other
hand raises the problem of the status of the Spratlys. For these islands cannot
remain attached to Cochin China which now no longer comes under French
sovereignty; nor can they fall under the political entity 'French Indochina',
which has ceased to exist; unless it is considered, in this particular instance,
that the French High Commissioner in Saigon should retain the adminis-
tration of these territories within his powers, it would appear, subject to any
observations a legal adviser might find it appropriate to make on this point,
that the Spratlys should now come under the French Department of Overseas
Territories, on the same basis as other French territories in the Pacific. If this
248 Annex 39
principle is accepted, the fact remains that, owing to the strategic position of
the Spratlys, the French representative in Indochina should be consulted
before any steps whatever are taken regarding these islands.
If you share this view, I should be obliged if you could have your
competent technical services study what action could be taken on the request
by Mr Miailhe. For my part, I am asking the French High Commissioner in
Indochina to let me know whether he can see any reason why this request
should not be granted as and when appropriate. I shall not fail to keep you
informed of the reply from General de Lattre.
(Signed) Jean Letourneau
ANNEX 40
Letter of 16 June 1955 from General Jacquot, General Commissioner of

France and Acting Commander-in-Chief in Indochina, to the Secretary of
State with responsibility for relations with Associated States
Saigon. 16 June 1955
No. 3958/SPD/AFG
Re: Sovereignty over the Spratly Islands (Spratly Island and Itu-Aba Island)
Enclosure: map.
1 - The Vietnamese Ministry of Public Works has sounded out the French
authorities in Saigon about a possible visit to the Spratlys by an economic
mission. The question of sovereignty over the Spratlys is therefore likely to
be raised.
This is why I think it might be helpful if I set out in this letter the
historical and legal background to the problem of sovereignty over the
Spratlys and if you could let me know what the views of the French Govern-
ment are on this matter.
2 - Geographical position of the Spratlys (see enclosed map)
The Spratlys is the name of a group of islands situated in the South China
Sea, some 300 nautical miles east of Cape St. Jacques, and which essentially
includes Spratly (or Storm) Island and Itu-Aba Island. These two islands are
separated by a distance of 180 nautical miles.
Position of Spratly Island: latitude 8°40' N, longitude 111 °55' E
Position of Itu-Aba Island: latitude 10°22'N, longitude 114°21' E
As the crow flies, Itu-Aba lies 840 kilometres east of Saigon and 600
kilometres from the coast of Annam.
Spratly Island, which is 1,000 metres in length, is flat and uninhabited.
Itu-Aba Island, which is 1,300 metres in length, is also flat and uninhabited.
The only resource is guano which, prior to World War II, was mined by a
Japanese company.
3 - Background
Previously res nullius, Itu-Aba was administratively attached to Cochin
China in 1929. The official taking of possession was effected by the
250 Annex 40
Malicieuse on 18 April 1930 and notified to the Official Gazette on 26 May

1933.
Itu-Aba was occupied by a detachment of the Native Guard of Cochin
China from 1938 to 1940. A French meteorological station was apparently
set up there in about 1938.
The island has been visited:
- by the Astrolabe in 1933
- by the Dumont d'Urville in 1938
- by the Chevreuil in 1946 - The report of the visit was buried in a
cement boundary-marker erected on this occasion.
- by the Commandant Robert Giraud in May 1955
- An aerial reconnaissance of the island was made in 1951.
A note dated 6 December 1946 from the Legal Department of the
Ministry of Foreign Affairs asserts that there is no disputing the ownership
of the Spratly Islands by France.
4 - Foreign designs on the Spratlys
PHILIPPINES
In 1946, the Government of the Philippines manifested the desire to refer
the fate 'of certain islands claimed by France' to the United Nations.
In 1950, President Quirino said that 'according to international law, the
Spratlys belong to the nearest territory, which is that of the Philippines'.
The same year, Colonel Soriano, a Filipino business magnate, made plans
to send a mission to Itu-Aba to investigate the prospects for mining guano.
He reportedly obtained a prospecting permit from the French Department of
Overseas Territories but subsequently abandoned the idea.
CHINA
In 1950, the Chinese press published articles stating that 'the People's
Republic of China will never allow the Spratlys or any other island belong-
ing to China to be seized by a foreign power'.
The Chinese Nationalists had no option but to fall into line.
VIETNAM
Tran Van Huu, President of the Government, reportedly declared that the
Spratlys, which had previously been attached to Cochin China, should now
be considered Vietnamese territory.
Annex 40 251
The Japanese disputed our rights to the Spratlys during World War II.
However, by the Treaty of San Francisco of 8 September 1951 (Article 2(f)),
Japan renounced all rights, titles and claims to the Spratlys.1
5 - Present situation
Despite the designs on the islands referred to supra, it can be accepted
that French sovereignty over the Spratlys is beyond dispute.
Nevertheless, it is possible that Vietnam's claims to the Spratlys may
assume more concrete form on the pretext that the islands were previously
attached to Cochin China.
In reality, that was a purely administrative attachment and nothing obliges
us to cede to Vietnam rights previously asserted on behalf of France. In this
connection, it should be noted that the secret Agreement dated 15 March
1949, drafted by the French High Commissioner in Indochina, commenting
on the Agreements of 8 March 1949, and addressed to H.M. Bao Dai, states
that 'the Paracel and Poulo Condor Islands fall under Vietnamese territorial
sovereignty', but remains silent on the subject of the Spratlys. Legally
speaking, there are therefore no restrictions on France's freedom of action to
reserve her rights on the Spratlys.
6 - Conclusions
While the Spratlys are of little interest from the geographical and
economic angle, strategically they may become important in future.
Indeed, it is conceivable that these islands, situated close to one of the
crossroads of navigation in south-east Asia, could be used, during periods of
hostilities, as radar stations or as temporary bases for air and naval person-
nel, as was the case with numerous atolls in the Pacific during operations
against Japan between 1942 and 1945. They might also have a role to play in
the commissioning of new weapons such as guided missiles or short takeoff
aircraft.
Lastly, were a French oceanic base to be maintained in Indochina, the
Spratlys would constitute the maritime advance post of this base and would
thus be of manifest strategic interest.
**
*
1
And also to the Paracels.
252 Annex 40
For these reasons, I consider that, with an eye to the future, France's
rights over the Spratlys must be maintained.
May I request you to let me know whether this is indeed the French
Government's position. In particular, may I ask you to let me know what
attitude to adopt, at my level, should Vietnam's claims to the Spratlys be
asserted./.
(Signed) Jacquot
ANNEX 41
Letter dated 29 April 1949 from the Special Delegate of the Wai Kiao Pou*
to the Provinces ofKwangtung and Kwangsi to the French Consulate in
Canton concerning the reconnaissance of an island in the Paracels by a
French warship.
No. 0427
Sir,
I have just received postal telegram No. 3863, dated 28 April 1949, from
the Headquarters of the 4th Chinese naval base, which states, among other
things:
On 25 April at 1500 hours, French gunboat, registration A.O.,
approached Lin Island ( ) in our Paracels archipelago. It
dropped anchor at 1,500 nautical miles (?) from the island, then
decided to sail along the coast. Passing west of the island, it
proceeded in a southerly direction, inspecting the coast of the
island as far as the south-eastern sector. At 1700 hours, gunboat
A.O. headed off in a south-westerly direction and departed. At
1930 hours the same day, I saw a green rocket in the south-west.
On the morning of the 26th, I again caught sight of the suspect
ship slowly heading north-west. Having established that the
visit and reconnaissance by this French ship were unscheduled,
the garrison on this island became alarmed and asked me to
request your Consulate to investigate this uncalled-for
interference and to let me know the purpose of the mission by
French gunboat A.O. The garrison would also ask the French
Consulate to inform the French authorities that it wishes to
receive advance notice of any future visits by French warships
in order to avoid any misunderstanding.
I hope you will kindly note this, that you will order an investigation and
communicate the findings in your reply.
Seal of the Special Delegate of the Wai Kiao Pou*
(Signed) T.W. Kwok

ANNEX 42
Note of 15 May 1950 from the Directorate for Asia-Oceania
Re: Paracels archipelago

I. - DESCRIPTION AND IMPORTANCE
The Paracels archipelago is situated east of the coasts of Annam, 490
kilometres on average from Hue and south-east of Hainan, 350 kilometres
from Yulin, the southern port of that island.
The Paracels consist of some 30 islets, reefs and shoals, falling into two
groups:
a) the Crescent group, distributed around Pattle Island, which is 850
metres long and 400 metres wide;
b) the Amphitrites, grouped around Woody Island, which is 1,800 metres
long and 1,200 metres wide.
As the crow flies, 87 kilometres separate Pattle Island from Woody
Island; on 19 January 1947, the advice-boat Tonkinois sailed from one island
to the other in 3 hours and 20 minutes.
At a distance of some 3.5 kilometres south-west of Pattle Island lies
Robert Island. Before World War II, a flock of 300 sheep was put out to
graze there to provide a supply of fresh meat for the detachments on Pattle
Island and Woody Island.
The archipelago has no fresh water and vegetation is sparse; there are
phosphate and guano deposits, which can be mined, though this process is
problematic.
These islands and reefs are a constant danger to major shipping lanes.
As early as 1899, Governor General Doumer recommended that a light-
house be built in the islands, yet it was not until October 1937 that a
lighthouse, and a radio and weather station, were constructed on Pattle
Island. These facilities, which were destroyed during the war in the Pacific,
were rebuilt by us in late 1947.
Before World War II, the military authorities attached a certain strategic
importance to the Paracels; the staff of the cruiser Lamotte-Picquet, in-
structed to reconnoitre the area on 28 February 1937, formally concluded
that France 'must not tolerate any foreign settlement in the archipelago'.
In a letter of 22 October 1946, from the French Minister for Overseas
Territories to the High Commissioner in Saigon, Mr Moutet said that, if the
Annex 42 255
Government was not planning to set up a military base in the Paracels, it was
nevertheless of the utmost importance that any moves towards occupation by
a foreign power of these lands which commanded access to the future base
of Cam-ranh should be prevented.
This attitude certainly changed subsequently. For example, the High
Commissioner's diplomatic counsellor wrote to the Ministry on 2 June 1947
that, according to the military authorities themselves and according to the
current defence plan of Indochina, possession of the Paracels held no
strategic importance, even though it was preferable that no foreign power
should gain a foothold there.
It now seems to be agreed that the occupation of the Paracels can serve
no useful purpose other than for air and maritime navigation, the safety of
which would be substantially enhanced in these dangerous waters if the
archipelago was properly equipped with lighthouses, radios, radar, and even
landing strips.
II - PROBLEMS OF SOVEREIGNTY
1. NEGATIVE ATTITUDE OF CHINA AND FRANCE UNTIL 1907
Following the sinking of the German ship Bellona in the Paracels in
1895, and of the Japanese cargo ship Imegu-Maru, in 1896, Chinese fisher-
men looted the cargo of copper which the ships were carrying and attempted
to resell it, at half its value, to the British insurance company. The insurers
refused and, at their instigation, the British Minister in Peking and the
British Consul in Hoihow intervened with the Chinese authorities in Hainan
asking them to have the copper impounded. The mandarins protested,
alleging that the Paracels were abandoned, that they belonged neither to
China nor to Annam, that they were not administratively attached to any
Chinese district and that no special authority was responsible for policing
them.
In December 1898, a French citizen requested information from the
Ministry of the Colonies on the possibility of setting up stores selling
provisions on the islands. The Governor General of Indochina, Mr. Doumer,
consulted by his Ministry, replied, in June 1899, that this project had no
chance of success and the matter ended there.
2. TAKING OF POSSESSION BY CHINA (1909-1932) [date unclear]
In 1907, following Japanese claims on the Pratas Island group (325
kilometres south-east of Hong Kong and 435 [figure not clear] kilometres
south-west of Formosa), the Viceroy of the Two Kwangs was anxious to
256 Annex 42
claim for China sovereignty over the groups of islands situated off the
Chinese coasts, including the Paracels.
In early 1909, a Chinese mission explored the archipelago and concluded
that the phosphate deposits could be mined. A company was to be set up in
Kwangtung for this purpose.
In late March 1909, an official Chinese mission solemnly hoisted the
Chinese flag on two of the largest islands and a 21-gun salvo was fired.
The plan by a Chinese company to mine the phosphates never bore fruit.
In 1920, a Japanese company, Mitsui Bussan Kaisha, asked Saigon for
information on the 'nationality* of the Paracels. The Commander of the
Navy, Captain Rimy, replied that the archipelago was not under French
sovereignty.
No doubt as a consequence of this officer's careless reply, the civilian
Governor of Kwangtung published in the Province's Official Gazette, dated
2 April 1921, an order of 20 March the same year, by which the heads of the
military government of this Province decided to administratively attach the
Paracels to the sub-prefecture of Yai Hien (Hainan Island).
The French Government did not lodge any protest and appeared to
recognize Chinese sovereignty over the Paracels; it held that the attachment
of the archipelago to Hainan entailed the application to this group of islands
of the clauses in the 1897 and 1898 Treaties aimed at prohibiting the cession
of Hainan to a third power; it appeared to be satisfied with the guarantees
given by these Agreements.
3. CONFLICT OF SOVEREIGNTY RAISED BY FRANCE (1932)
By telegram 501 of 14 March 1930, the Governor General of Indochina,
Mr Pasquier, announced that the Provincial Council of Kwangtung had
adopted a resolution for the mining of the guano deposits in the Paracels. He
transmitted this news, at the same time declaring that France had never
ceased to assert the historical and geographical rights of the Empire of
Annam over these territories.
These rights were allegedly based on:
a) the report in the annals of the Court of Hue of the creation, in about
1700, of an Annamese company which each year harvested fishery
resources in the Paracels;
b) the solemn taking of possession of the archipelago by the Emperor of
Annam, Gia Long, in 1816;
c) the building of a pagoda and the erection of a monument by the
Emperor of Annam, Minh Mang, in 1835.
Annex 42 257
The Ministry's legal adviser, consulted on two occasions (19 June 1930
and 3 March 1931) considered that the rights of Annam were ancient but
insufficiently exercised, while those of China were recent yet frequently
displayed. Hence, he considered, our case would be somewhat shaky in the
event of arbitration, but that our position could be reinforced by discreet acts
of sovereignty.
In view of the practical risk French activities in the islands would incur,
as Mr Basdevant advised, it was simply decided to assert our rights in a
diplomatic Note, which was handed to the Chinese Legation in Paris on
4 December 1931 (or 4 January 1932; the date is uncertain).
In March 1932, as the Chinese had put the mining of guano in the
Paracels up for tender, the French Minister addressed a note of protest to the
Wai Kiao Pou* on 29 April 1932, attaching a copy of the Note of
4 December 1931.
The Chinese reply of 29 September 1932 rejected the French assertions
and proclaimed China's own rights. Among the many arguments put forward
by the Wai Kiao Pou* was the fact that Annam had been a vassal of China at
the time when Emperor Gia Long had manifested his desire to annex the
archipelago.
Numerous Notes were exchanged subsequently between France and
China on this subject.
The Chinese claims were disputed by the French Government acting on
behalf of the Protectorate Annam. On 18 February 1937, in a Note to the
Chinese Embassy, the French Government proposed an amicable settlement
or, failing that, arbitration.
This proposal was not followed up and sovereignty over the islands
remained in dispute.
4. OCCUPATION BY FRANCE (1937-1945). CHINA MAINTAINS THE
PRINCIPLE OF ITS SOVEREIGNTY (1938)
The cruiser Lamotte-Picquet reconnoitred the archipelago on 28 February
1937 and reported that the islands were deserted.
A mission was dispatched to the islands from 22 to 30 October 1937 and
erected the Pattle lighthouse.
In February 1938, the advice-boat Savorgnan de Brazza reported that
Japanese civilians were occupying Woody Island. Our reconnaissance and
other missions were stepped up. In March 1938, the advice-boat Marne, for
example, built some stone cairns on the principal islands.

258 Annex 42
Lastly, in June 1938, the Government General of Indochina embarked on

the wholesale effective occupation of the Paracels.
Through its Ambassador in Paris, the Chinese Government, in a Note of
18 July 1938. took note of the assurance it had received from the Ministry of
Foreign Affairs 'that in no manner was this action intended to affect the
respective legal positions taken by China and France regarding the sover-
eignty of these islands or to be prejudicial to a satisfactory settlement of this
question in the future'. The same Note very firmly reasserted the principle of
China's sovereignty over the Paracels.
From 1938 to 1945, there was no report of any local incident between the
French and the Japanese.
On 1 July 1939, the French occupation was displayed as follows:
a) Pattle Island: lighthouse; radio and meteorological station; 2 large
stone buildings; personnel: 1 French inspector and 1 French doctor, 2
Annamese radio and meteorological operatives, 20 native guards, 150
coolies.
b) Robert Island: 10 native guards, a handful of coolies. A flock of 300
sheep put out to graze on this island provides a supply of fresh meat.
c) Woody Island: radio, barracks, 1 infirmary: personnel: 1 senior French
inspector, 1 Annamese doctor, 30 native guards, a handful of coolies.
The French occupation was apparently to end in uncertain circumstances
at the time of the Japanese attack on Indochina, on 9 March 1945.
5. FRANCO-JAPANESE DISPUTE (1938-1945)
Japan challenged the French occupation, even though no strictly legal
argument was put forward, Japan confining itself to vague assertions, some-
times that the Japanese colony established on Woody Island had been there
for 60 years - which militated in favour of Japanese sovereignty by virtue of
prior occupation - or else that the islands were under Chinese sovereignty
and that Japan was at liberty to take the war there and occupy them.
As Japan is now out of the picture, the dispute has lapsed of itself.
However, it would be prudent to include in the forthcoming peace treaty a
clause by which Japan expressly renounced all its claims to the Paracels.
6. AFTER THE JAPANESE CAPITULATION: RECONNAISSANCE
MISSION TO THE PARACELS BY THE FRENCH FRIGATE
ESCARMOUCHE (20-27 May 1946)
Admiral Thierry d'Argenlieu dispatched the frigate Escarmouche on a
reconnaissance mission to the Paracels from 20 to 27 May 1946. The islands
were uninhabited. Half a section was put ashore on Pattle Island. It was to be
re-embarked by the Savorgnan de Brazza on 7 June following.
Annex 42 259
In a letter from Admiral d'Argenlieu to the Chief of Staff of National

Defence, on 11 June 1946, our High Commissioner wrote: 'Of itself, this
mission marked the re-establishment of French rights. I am reserving the
possibility of unofficially informing the local representatives of China, the
United States of America and the United Kingdom of the fact...'.
7. REOPENING OF THE DISPUTE OVER SOVEREIGNTY BETWEEN
FRANCE AND CHINA
a) French hesitation. On 16 September 1946, the French Minister for
Foreign Affairs wrote to the Secretary General of Indochina: 'I think it
would be expedient to re-establish a duty station in the Paracels in order to
assert our rights there.'
On 22 October 1946, the French Minister for Overseas Territories wrote
to our High Commissioner in Saigon: 'It is of the utmost importance that any
hint of occupation by a foreign power be prevented, as these islands (the
Paracels) command access to the future base of Cam-ranh. The militia post
set up there in 1938 therefore needs to be re-established.'
On 23 November 1946, a telegram from Saigon stated that the setting up
of a permanent station had not yet received the go ahead.
Meanwhile, our Ambassador in China reported that the Chinese press had
announced the departure of a Chinese detachment bound for the Paracels to
occupy the islands 'to control piracy'.
On 26 November 1946, the Ministry urged the French Ministry of
Overseas Territories to land some troops on the islands without delay.
On 12 December 1946, the High Commissioner telegraphed that, for
technical reasons, he would not be able to proceed with the effective
occupation of the islands before 15 January 1947.
b) Announcement by the Wai Kiao Pou* of the occupation of the Paracels
by Chinese troops (7 January 1947). At a press conference in Nanking, Mr
George Yeh, spokesman for the Ministry of Foreign Affairs, announced on
7 January 1947 that 'the Chinese Government has reoccupied the Paracels
and that the Chinese flag once again flies over these islands which have
never ceased to belong to China',
c) French protest. On 13 (?) January 1947, our Ambassador handed a
Note to the Wai Kiao Pou* expressing 'the strongest reservations regarding
the legal consequences of the occupation of the Paracels by Chinese forces'
and recalling the earlier proposals by the French Government for an
amicable settlement or for arbitration.

260 Annex 42
d) Mission by the advice-boat Tonkinois to Woody Island (17 January

1947): the island was effectively occupied by a Chinese detachment:
continuation of the mission to Pattle Island, uninhabited; a French
detachment was installed there (19 January 1947). The operation aimed at
resuming the occupation of the Paracels having been so unhappily delayed,
the advice-boat Tonkinois, on arriving on 17 January 1947 off Woody Island,
in fact found Chinese troops already installed there. The French commander
invited the Chinese commander to evacuate the island, offering to take him
on board, together with his detachment, and to return them to Tourane. After
telegraphing Nanking and requesting instructions from his government, the
Chinese commander declined the offer. Thereupon, the advice-boat
Tonkinois severed contact on 19 January 1947 and, having established, the
same day, that Pattle Island was uninhabited, landed a detachment of 20 men
there.
e) Diplomatic incident between France and China (January 1947). Either
because the conduct of the commander of the Tonkinois was inept or because
the Chinese commander, wittingly or unwittingly, misrepresented the action
of the French officer on Woody Island in his report, the Nanking Govern
ment immediately turned this ultimately unimportant matter into an issue of
national prestige and blew it up out of all proportion into a major incident; it
protested against the French naval operation in the Paracels with
extraordinary vehemence and asserted in a welter of publicity that the islands
were definitively under its sovereignty.
f) Fruitless negotiations in Paris (February-July 1947). The talks in
Nanking on this matter had serious drawbacks owing to the intransigence
which the Wai Kiao Pou* claimed was imposed by Chinese public opinion.
On 29 January 1947, the Ministry therefore proposed that the talks be
transferred to Paris. The Wai Kiao Pou* did not oppose this suggestion, yet it
was not until 25 February 1947 that the Ambassador initiated the talks laying
down the evacuation of Pattle Island by the French detachment as an
essential condition. The Ministry therefore came up with various (for China)
face-saving formulas designed to lead, through arbitration, to a definitive
solution of the Franco-Chinese dispute. The talks were fruitless, apart from
highlighting the strong prejudice which the very principle of recourse to
arbitration met with on the part of the Nanking Government.
On 4 July 1947, new proposals were put to the Chinese Embassy in the
context of a 'plan for the simultaneous settlement of the principal questions

Annex 42 261
pending between France and China on the basis of mutual interest'. These
proposals fell on stony ground.
g) Abatement of the conflict (1948-1950). Subsequently, and probably
owing to the worsening situation of the Nationalist regime at home and
abroad, the tension subsided appreciably. At an audience granted by Chiang
Kai-shek to our Ambassador in May 1947, the General recalled the
importance China attached to the Paracels and indicated that this problem
was of particular concern to him; in a purely symbolic motion (No. 345), the
Chinese National Assembly, before disbanding for two years, called upon the
Government in April 1948 'quickly to put an end to France's possession of
the Paracels', In May 1949, the provincial delegation of the Wai Kiao Pou*
announced the appointment of an 'administrator' for the Paracels, Canton
having subsequently fallen into the hands of the Communists in 1949, the
case of the Paracels was no longer mentioned.
The Chinese detachment remained on Woody Island while the French
detachment was kept on Pattle Island.
III - PRESENT SITUATION ( 15 May 1950)
1. CHINESE NATIONALIST ACTIVITY (evacuation of Woody Island?)
The Ministry has no precise information on the activities of the Chinese
Nationalists in the Paracels.
According to a telegram of 10 May 1950 from our Consul in Hong Kong,
reproducing an Associated Press wire published in Taipei on 8 May 1950,
'General Chu Chi-ju, acting chief of staff, today declared that the small
Nationalist garrison and naval units based in the Paracels were pulled out
last month'. Our Consul in Taipei confirmed this information on 11 May.
It was also reported that Nationalist troops fleeing Hainan had tried to
seek refuge in the Paracels.
2. COMMUNIST CHINESE ACTIVITY
Unconfirmed press information (Reuter and United Press, 6 and 7 May
1950) reported that a flotilla of Communist junks had left Hainan in the
evening of 6 May to 'liberate' the Paracels. However, our station on Pattle
Island has so far noticed nothing, apart, that is, from a collection of
unidentified junks around Robert Island (Crescent group) on 7 May.

262 Annex 42
3. FRENCH ACTIVITY
A French detachment is still stationed on Pattle Island. It consists of 2
officers, 10 French nationals and 17 Vietnamese; a ship from the French
Navy visits the island once or twice each month.
The radio and telegraph post, originally serviced by military personnel,
has been serviced since October 1947 by the civilian meteorological service
of Indochina. This solution was adopted in the context of international
agreements on air security in the wake of the preparatory conference in
Saigon on 29 September 1947, which extended our regional air control to
longitude 115° E.
IV. QUESTIONS PENDING
1. Defence of Pattle Island. On 8 May 1950, our High Commissioner in
Saigon reported that the garrison was now under orders, in the event of an
attack, to defend the meteorological station to the bitter end. It requested the
advice of the Ministry of French Overseas Territories on this matter and
asked for instructions regarding how to react both in the event of a deliberate
attack on Pattle Island and also in the event of the occupation by the
Communist Chinese of the other islands in the Crescent group. To date
(15 May 1950), the Department of French Overseas Territories has not yet
issued instructions on this matter.
2. Conflict of sovereignty. The conflict of sovereignty has still not been
resolved. The Ministry's legal adviser has been asked to state his opinion on
the possibility, for France or Vietnam, of referring the matter to the Inter
national Court of Justice./.
Annex 42 263
264 Annex 42
ANNEX 43
Telegram of 23 April 1949 from Saigon
The article you refer to is a summary of a lecture given in Saigon by

Prince Buuloc, His Majesty Bao Dai's directeur de cabinet. This lecture, an
advance copy of which I had not requested at the time Vietnamese independ-
ence was proclaimed, was aimed at the Vietnamese and intended to revive
the somewhat lukewarm enthusiasm over the Agreement of 8 March, the text
of which has not been published.
I agree that this event was inopportune, but such incidents, the very con-
sequences of the new status of the Indochinese States, will unquestionably
become harder and harder to prevent. On the substance of the question, I
would point out that it was not the French negotiators of the Agreements of
8 March who drew the attention of the Vietnamese either to the position of
the Paracels or to the situation of Poulo Condor Island, but that it was the
Vietnamese negotiators, highly competent lawyers, who insisted on raising it
specifically, and did so of their own accord.
The result of our efforts was merely to prevent the exchange of letters
from expressly mentioning the fact. Nevertheless, I personally had to affirm
to His Majesty Bao Dai that this High Commission, following in the
footsteps of the former Government General, considered the Paracels to be a
crown dependency of Annam and that, in this dispute, I shall support the
Vietnamese position.
Once this assurance, which I repeat is personal to me and may at any time
be disclaimed by the French Government should it see fit, had been given, it
could not be withdrawn. This was demanded not only by the success of
delicate negotiations, but also by respect for Indochinese tradition and
honesty.
Since in the French Union we are conferring associate status with France
on a country, while asking it to agree to limit its diplomatic freedom, it
seems to me absolutely essential, when it has only just joined the game, not
to tell it that we refuse to support national claims whose merits we have
accepted for years.
I shall send Prince Buuloc some observations on the discretion which is
called for in diplomacy./.
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Sovereignty Over The Paracel and Spratly Islands

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Sovereignty Over The Paracel and Spratly Islands

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Chapter I

Background Information on The Paracels and Spratlys

Once again we encounter a vast underwater platform in the middle of the

THE LEGAL ISSUE

Category of territory and identification of the dispute

The nature of the disputed territories

Examining the nature of the territories means asking two questions:

Therefore the dispute indeed concerns lands which are capable of

However, when it comes to the claims of others, the interpretation of the

The legal nature of the dispute

Several States have irreconcilable positions regarding these archipelagos.

right to exercise therein, to the exclusion of any other State, the

attributing sovereignty over terra nullius to a State which seeks to acquire

The norms of international law applicable to a settlement of the dispute

What legal approach can be adopted which might permit a conclusion as to

The argument of geographical contiguity

such a rule of international law, but the alleged principle itself is

The machinery of intertemporal law

How in international law are the titles of acquisition to an uninhabited

Lastly, the recognition or acquiescence of third States could not serve as

It is particularly hard for the claimants to the title to demonstrate the

The period of French colonization up to the end of World War II

French domination began with a first Treaty of Protectorate signed in Saigon

vessels were carrying copper insured with British companies. It proved

- 1927, the Consul General of Japan, Mr Kurosawa, asked the French

The period after World War II

- 1945 - on 15 August Japan capitulated. On 19 August the Viet Minh

- 1950 - In April the garrison established by Nationalist China on Woody

- Mr Nguyen Khac Su, Rapporteur of the Foreign Relations Committee,

- 1965 - 9 May - In response to the delimitation by the United States

On 12 November, the Socialist Republic of Vietnam published a

- 1992 - 25 February - The People's Republic of China adopted a new

THE NORMS OF INTERNATIONAL LAW REGARDING THE ACQUISITION OF

The corpus of rules examined here is what has gradually emerged, in a

The 19th century is strewn with major arbitral awards, on which

The material element As the above

quotations show, the concrete facts fall into two categories.

Mere knowledge of the territory

The notion of taking possession

The symbolic ceremonies were generally supplemented by

The element of intention

Conversely, certain facts invoked by France, such as buoying outside the

AWARENESS OR DISCOVERY. THE SITUATION OF THE ARCHIPELAGOS

A clear distinction must be made between the concept of geographical

that of the navigator or mapmaker), making it impossible to use such charts

The documents produced by the Chinese

The Chinese arguments are expressed either in documents published by the

In certain Chinese documents, excerpts from geographical works are quoted

The following works may be placed in the category of documents which

Uncertainty as to China's intentions

The Chinese documents or the works of certain authors on this subject

prefaced by Emperor Renzong himself) reports patrols going right to the

Close scrutiny of the references produced by the Chinese certainly

That they [Spanish navigators] might have known it before the

The documents produced by the Vietnamese

mentioning acts corresponding to a certain administration of the archipelago,

THE AFFIRMATION OF SOVEREIGNTY (18TH TO 19TH CENTURIES)

The preceding section drew attention to the presence of a first element. It

The Vietnamese documents of the 18th and 19th centuries

The effective administration of the archipelagos appears in various docu-

In 1836, Emperor Minh Mang carried on his predecessor's plan to survey

The documents produced reveal governmental activity by Vietnam in the