Iop 2014 U 008433

A CNA Occasional Paper
China versus Vietnam:

An Analysis of the Competing Claims
in the South China Sea
Raul (Pete) Pedrozo
With a Foreword by CNA Senior Fellow Michael McDevitt
August 2014
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FOREWORD
This legal analysis was commissioned as part of a project entitled, “U.S. policy options in
the South China Sea.” The objective in asking experienced U.S international lawyers, such as
Captain Raul “Pete” Pedrozo, USN, Judge Advocate Corps (ret.),1 the author of this analysis, is to
provide U.S. policy makers access to work that tests the various legal arguments that the
respective claimants make in support of their claims, and weigh them against the relatively
limited body of international case law associated with maritime disputes of this sort.
Importantly, this analysis of Vietnamese claims versus Chinese claims to the Paracel and
Spratly archipelagoes was not undertaken as a prelude to a recommendation that the United
States depart from its long held position of not taking a position on competing sovereignty
claims in the South China Sea. That is not the intent, nor is it one of the recommendations of
the project.
Captain Pedrozo’s findings are summarized below:
Based on the arguments and evidence submitted by the claimants and general
principles of international law related to the acquisition of territory, it would appear
that Vietnam clearly has a superior claim to the South China Sea islands.
Vietnam’s title to the Paracels is well founded in both history and law. Beginning in the
early 18th century, Vietnam demonstrated a clear intent to assert sovereignty over the
islands through the establishment of a government‐sponsored company to exploit and
manage the resources of the archipelago. That intent was confirmed by the annexation
of the islands and symbolic acts of sovereignty in the early 19th century, followed by
peaceful, effective, and continuous administration of the islands by successive Nguyen
dynasties until the advent of the French colonial period. France continued to effectively
administer the islands on behalf of Vietnam and physically took possession and occupied
the Paracels in the 1930s. Thereafter, France continued to assert its sovereignty over
the Paracels until its departure from Indochina in 1956. Following the French
withdrawal, South Vietnam (and subsequently a united Vietnam) effectively
administered the islands and never ceased to assert Vietnamese sovereignty over the
archipelago, even after China illegally occupied a portion of the islands in 1956 and the
entire archipelago in 1974.
On the other hand, the first demonstration of Chinese sovereignty over the Paracels did
not occur until 1909, two centuries after Vietnam had legally and effectively established
1
Captain Raul (Pete) Pedrozo, U.S. Navy (Ret.). Former Professor of International Law, U.S. Naval War College; Staff
Judge Advocate, U.S. Pacific Command; and Special Assistant to the Under Secretary of Defense for Policy. The
views expressed in this paper do not reflect the views of the U.S. government, the U.S. Department of Defense, or
the U.S. Navy.
its title to the islands. Moreover, China’s illegal occupation of Woody Island in 1956, and
its occupation of the entire archipelago by force in 1974, clearly violate Article 2(4) of
the UN Charter and accordingly do not confer a clear legal title to the Paracels.
With regard to the Spratlys, France annexed the islands as terra nullius in the 1930s—at
the time, occupation by force was a valid method of acquiring sovereignty over
territory. Great Britain, which had controlled some of the Spratly Islands in the 1800s,
abandoned its claims following the French annexation and effective occupation, so
French title to the Spratlys was legally and soundly established. France’s title to the
archipelago was ceded to South Vietnam in the 1950s and the South Vietnamese
government (and subsequently a united Vietnam) effectively and peacefully controlled
the islands until ROC forces illegally occupied Itu Aba Island in 1956 and PRC forces
illegally occupied a number of islets in the archipelago in 1988.
The ROC’s occupation of Itu Aba Island in 1946 and 1956, and the PRC’s invasion of the
Spratlys in 1988, violate Article 2(4) of the UN Charter and cannot confer clear title to
the Spratlys to either Taiwan or China. The fact that China may have challenged
Vietnamese sovereignty over the Spratlys between 1951 and 1988, rights that were
legally ceded by France to Vietnam, does not in and of itself create a clear title for China.
The Pedrozo analysis differs in part from two other third party analyses, one by Dr.
Marwyn S. Samuels, an American scholar, who wrote the first detailed study on the origins of
the disputes among China, Vietnam and in the Philippines. A meticulous scholar who used
Vietnam and Chinese sources, his Contest for the South China, holds up very well some 40 years
later.2 Samuels concluded that China had the better claim to the Paracels, but that China’s claim
to the Spratly’s was “highly questionable.”3 His judgments were partially echoed by Australian
scholar Dr. Greg Austin, who has legal training. In his well‐regarded China’s Ocean Frontier,
published in 1998.4 Austin found that China had “superior rights in the Paracels,” but the legal
complexity of the disputed Spratly claims meant that, “PRC claims to the entire Spratly group
are at least equal to any other.”5
Pedrozo’s findings are supported by Professor Monique Chemillier‐Gendreau in her

work, Sovereignty over the Paracel and Spratly Islands. Professor Chemllier‐Gendreau is a legal
scholar and Professor Emeritus at Paris University‐Diderot.6
In reviewing all of these works, it is clear to me that in the unlikely event these claims
are ever taken to the International Court of Justice to resolve the disputes over sovereignty the
2
Marwyn S. Samuels, Contest for the South China Sea, Methuen New York, 1982.
3
Ibid, p. 68.
4
Greg Austin, China’s Ocean Frontier: International Law, Military Force, and National Development, Allen and
Unwin, NSW, Australia, 1998.
5
Ibid, p. 161.
6
Monique Chemilleir‐Gendreau, Sovereignty over the Paracel and Spratly Islands, Springer (English translation),
2000.
ii
process will be long and difficult. None of the claimants has what might be called an “open and
shut” legal case—although the consensus among scholars seems to be that China’s claims in the
Spratlys are weaker than those to the Paracels.
The reality on the ground is that China has occupied the entire Paracel group for 40
years, and short of military action by Vietnam to recapture the archipelago, will never leave.
The issue is more complicated in the Spratlys. China, Taiwan, Vietnam, Malaysia and the
Philippines all permanently occupy features in the Spratly group. Resolution of the dispute is
likely in only four ways: judicial arbitration that all parties agree to undertake; all parties agree
to freeze in place while tabling the issue of ultimate sovereignty in favor of a cooperative
regime for resource exploitation and management; individual claimants reach an understanding
with China ceding sovereignty claims in return for economic preference; or the use of force by
the most powerful to expel rival claimants.
Michael McDevitt
Senior Fellow and Project Director
iii
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iv
Table of Contents
I. INTRODUCTION ........................................................................................................................................ 1
II. ACQUISITION OF TERRITORY ................................................................................................................... 3
III. CHINA .................................................................................................................................................... 5
A. Chinese Claims ............................................................................................................................. 5

1. Historical Evidence ............................................................................................................................ 5
2. Economic Development .................................................................................................................... 8
3. Effective Administration ................................................................................................................. 12
a. Naval Patrols ................................................................................................................................ 12
b. Administrative Control ................................................................................................................. 14
c. Persistent Objector ....................................................................................................................... 19
d. Reaffirming Sovereignty ............................................................................................................... 23
e. Military Intervention..................................................................................................................... 24
4. International Recognition ............................................................................................................... 25
a. The Sino‐French Treaty of 1887 .................................................................................................... 25
b. French Recognition before World War II ...................................................................................... 26
c. French Recognition after World War II ......................................................................................... 28
d. Japanese Recognition ................................................................................................................... 29
e. World War II Documents .............................................................................................................. 30
f. Post‐War Occupation .................................................................................................................... 30
g. San Francisco Peace Conference .................................................................................................. 31
h. International Civil Aviation Organization (ICAO) Conference....................................................... 33
i. North Vietnamese Indifference...................................................................................................... 34
j. Other Supporting Publications....................................................................................................... 35
IV. VIETNAM ............................................................................................................................................. 37
A. Vietnam Claims .......................................................................................................................... 37

1. Historical Evidence .......................................................................................................................... 37
2. Economic Development .................................................................................................................. 40
3. Effective Administration ................................................................................................................. 43
a. French Colonial Rule ..................................................................................................................... 45
b. Return to South Vietnamese Control ............................................................................................ 53
c. Post‐unification Administration .................................................................................................... 58
4. Right of Cession ............................................................................................................................... 61
V. CONCLUDING ANALYSIS ........................................................................................................................ 64
A. Evaluation of China’s Position .................................................................................................... 64

1. Discovery versus Awareness ........................................................................................................... 64
v
2. Probative Value of Historic Maps.................................................................................................... 67
3. Inchoate Title and Effective Occupation ......................................................................................... 69
a. Remote and Uninhabited Territories ............................................................................................ 76
b. Suzerain and Vassal ...................................................................................................................... 79
4. Persistent Objector ......................................................................................................................... 80
a. The Sino‐French Treaty of 1887 .................................................................................................... 85
b. French Recognition before World War II ...................................................................................... 87
c. French Recognition after World War II ......................................................................................... 93
d. Japanese Recognition ................................................................................................................... 94
e. World War II Documents .............................................................................................................. 96
f. Post‐War Occupation .................................................................................................................... 98
g. San Francisco Peace Conference .................................................................................................. 99
h. International Civil Aviation Organization (ICAO) Conference..................................................... 104
i. North Vietnamese Indifference.................................................................................................... 104
j. Other Supporting Publications..................................................................................................... 108
B. Evaluating Vietnam’s Position .................................................................................................. 108
1. Historical Evidence and Maps ....................................................................................................... 109
2. Economic Development ................................................................................................................ 111
3. Effective Occupation and Administration ..................................................................................... 112
a. Effective Administration During the French Colonial Period ...................................................... 113
b. Effective Administration by South Vietnam ............................................................................... 119
c. Post‐unification Administration .................................................................................................. 122
4. Right of Cession ............................................................................................................................. 124
5. International Recognition ............................................................................................................. 128
C. Final Thoughts .......................................................................................................................... 130
vi
I. INTRODUCTION*
The South China Sea stretches from Singapore and the Strait of Malacca in the
southwest, to the Strait of Taiwan in the northeast. It is bounded on the east by the Philippine
Islands, on the south by Borneo, on the west by Vietnam, and on the north by mainland China.
The area includes several hundred small islands, rocks, atolls, islets, cays, shoals, sandbars, and
reefs. Many are underwater at high tide, while others are permanently submerged even at low
tide. These features, most of which are uninhabitable, are situated in three island chains (the
Spratly, Paracel, and Pratas Islands), the Macclesfield Bank, and Scarborough Shoal.
The South China Sea links the Pacific and Indian oceans and is home to some of the
world’s busiest and most strategically important sea lines of communication. More than half of
the world’s oil tanker traffic and over half of the world’s merchant fleet (by tonnage) sail
through these waters every year. In addition, the South China Sea is rich in natural resources,
including abundant fisheries and potentially large oil and natural gas deposits.1 Sovereignty
over the various land masses—and the resulting maritime zones that would flow from these
features—would place many of these resources under the exclusive control of one nation.
Competing claims to these resources could result in conflict, which, in turn, could affect the free
flow of commerce through the region. Peaceful resolution of the dispute is, therefore, critical to
maintaining regional peace and stability, as well as a vibrant world economy.
Pratas Island2 and the Macclesfield Bank3 are claimed by Taiwan and China. No nation
has challenged China’s or Taiwan’s claim to Pratas Island. However, Macclesfield Bank and its
surrounding shoals are located beyond the territorial sea of any nation and are permanently
submerged, even at low tide. Accordingly, these features may not be claimed by any nation.
Although the International Court of Justice (ICJ) has stated that international law “is silent on
the question whether low‐tide elevations can be considered to be ‘territory,’” and that there is
no “customary rule which unequivocally permits or excludes appropriation of low‐tide
elevations,” the few rules in the law of the sea that govern low‐tide elevations “do not justify a
general assumption that low‐tide elevations are territory in the same sense as islands.”4
Moreover, the Court noted that “it has never been disputed that islands constitute terra firma,
and are subject to the rules and principles of territorial acquisition; [however,] the difference in
*
This analysis is authored by Captain Raul (Pete) Pedrozo, U.S. Navy (Ret.). Former Professor of International Law,
U.S. Naval War College, Staff Judge Advocate, U.S. Pacific Command, and Special Assistant to the Under Secretary
of Defense for Policy. The views expressed in this paper do not reflect the views of the U.S. government, the U.S.
Department of Defense, or the U.S. Navy.
1
South China Sea Report, U.S. ENERGY INFORMATION ADMINISTRATION, last updated Feb. 7, 2013.
2
Pratas Island (20°42'N., 116°43'E.) lies 160 miles southeast of Hong Kong and is composed of sand covered with
scrubby brush. The island is governed by Taiwan and is home to a weather station located near the center of the
east part of the island. NATIONAL GEOSPATIAL‐INTELLIGENCE AGENCY PUBLICATION 161, Sailing Directions (Enroute), South
China Sea and the Gulf of Thailand, Thirteenth Edition (2011) [hereinafter PUB. 161].
3
Macclesfield Bank (15°45'N., 114°20'E.) is a submerged atoll about 75 miles long on its northeast‐southwest axis
and about half that wide at its broadest part. Pub. 161.
4
Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports
2001, p. 40, at pp. 101‐103; accord Sovereignty over Pedra Branca/Pulau Batu Puteh Middle Rocks and South Ledge
(Malaysia/Singapore), Judgment, I.C.J. Reports 2008, p. 12, at pp. 99‐101.
1
effects which the law of the sea attributes to islands and low‐tide elevations is considerable.”5
Accordingly, the Court concluded that “it is thus not established that in the absence of other
rules and legal principles, low‐tide elevations can, from the viewpoint of the acquisition of
sovereignty, be fully assimilated with islands or other land territory.”6 A similar, albeit more
persuasive, argument could be made with regard to completely submerged features, such as
Macclesfield Bank.7 Nonetheless, because China’s claim to Macclesfield Bank is not contested
by Vietnam, it is not discussed in detail in this paper.
Scarborough Shoal8 is claimed by China, Taiwan, and the Philippines. The total area of
the shoal, including its inner lagoon, is 150 square kilometers.9 The reef is situated about 170
nautical miles (nm) east of Macclesfield Bank, 115 nm off the Philippine island of Luzon
(Zambales Province), and 472 nm from the Chinese coast.10 China argues that it discovered the
shoal and has exercised effective control over it for hundreds of years. The Philippines claims
that it has effectively occupied the shoal since 1946.11 Because the dispute over the shoal does
not involve Vietnam, it is not discussed in detail in this paper.
The Paracel Islands12 are spread over a sea area of 15,000 to 16,000 square kilometers
and are claimed by Vietnam, Taiwan, and China, but have been occupied by China since 1974.
Most of the features in the South China Sea are in the Spratly Island13 chain and are spread over
160,000 to 180,000 square kilometers of ocean area. The Spratlys are claimed in their entirety
by China, Taiwan, and Vietnam, and partially by the Philippines, Malaysia, and Brunei. All of the
5
Id.
6
Id.
7
Robert Beckman, Scarborough Shoal: Flashpoint for Confrontation or Opportunity for Cooperation, RSIS
COMMENTARIES, No. 072/2012, Apr. 24, 2012 (“…under international law, Macclesfield Bank may not be capable of
being subject to a claim of sovereignty because it is completely submerged.”) [hereinafter RSIS COMM. No.
072/2012].
8
Scarborough Reef (Scarborough Shoal) (15°08'N., 117°45'E.) consists of a narrow belt of barely submerged reef
enclosing a lagoon. On the belt are scattered rocks, with over 20 rocks standing 1.5 to 2.5 meters high. Fishing
vessels from China and the Philippines frequent the reef to exploit the abundant living resources around the shoal.
The ruins of an iron tower stand close to the above channel opening. PUB. 161.
9
Zou Keyuan, Scarborough Reef: A New Flashpoint in Sino‐Philippine Relations?, INTERNATIONAL BOUNDARIES RESEARCH
UNIT BOUNDARY AND SECURITY BULLETIN 71, Summer 1999, at p. 71 [hereinafter IBRU BULL. 71].
10
Id.
11
The Philippines’ claim is based on a number of activities, including building and operating of a lighthouse on the
shoal in 1965, conducting a number of hydrographic surveys and marine scientific research in the waters around
the shoal, using the shoal as an impact range for military exercises and enforcing its laws on smuggling and illegal
fishing. RSIS COMM. No. 072/2012; see also IBRU BULL. 71, at p. 74.
12
The Paracel Islands (16°40'N., 112°20'E.) are made up of the Amphitrite Group, the Crescent Group, and several
off‐lying islands and coral reefs, some of which are covered with trees or vegetation. The Amphitrite Group
(16°53'N., 112°17'E.) is the northeasternmost cluster of islands, reefs, and shoals in the Paracels. The Crescent
Group lies 45 miles southwest of the Amphitrite Group and consists of several low sand islets and numerous reefs.
The principal islands are covered with thick vegetation. PUB. 161.
13
The Spratly Islands lie in the southeast part of the South China Sea along an oblong area about 52,000 square
miles in extent, northwest of the strategic Palawan Passage. The area is dotted with sunken reefs and coral atolls.
The major axis of the area bears about 045°‐225° for a distance of 340 miles with a maximum breadth along its
minor axis of 175 miles. PUB. 161.
2
claimants, except Brunei, have established military outposts on a number of features.14
Vietnam occupies the most features, followed by the Philippines, China, Malaysia, and Taiwan.
The Paracel and Spratly Islands are situated beyond the geological continental shelf of
any of the claimant states. Waters around the Paracels can reach a depth of over 1,000 meters
(3,280 feet), while the Spratlys are separated from any mainland or major island by ocean
trenches over 3,000 meters (9,842 feet) deep. Consequently, none of the claimant states can
claim sovereignty over the islands “on the grounds that they belong, in geomorphological
terms, to the continental shelf of any particular country.”15
This paper will only examine the claims of China/Taiwan and Vietnam with regard to the
Paracel and Spratly Islands, as all of the activities of the other claimants occurred well past the
critical date and can therefore not be used as a basis to claim sovereignty over any of the South
China Sea islands. That is not to say that Malaysia, Brunei, or the Philippines may not have valid
claims to some of the submerged features situated on their respective continental shelves
under the United Nations Convention on the Law of the Sea (UNCLOS); rather, it means that an
analysis of those potential claims is beyond the scope of this paper. The Philippines may also
have a valid claim to Scarborough Shoal, which is not considered part of the Spratly Islands.16
II. ACQUISITION OF TERRITORY

In general, territorial sovereignty can be acquired in one of five ways: accretion, cession,
conquest, occupation, and prescription. Accretion involves the expansion of existing territory
under the sovereignty of a state through geographical or geological process (e.g., volcanic
activity). Cession occurs when one state transfers its territory to another state pursuant to a
treaty. However, “the transferee cannot receive any greater rights than those possessed by the
transferor.”17 Conquest—the acquisition of territory by force—was historically considered a
lawful mode of acquiring sovereignty, but has been illegal since October 1945 following the
entry into force of the United Nations Charter (see Article 2(4)).18 Prescription involves the
occupation of another state’s territory over a long period of time. In order for prescription to
apply, the occupying state must show that its display of state authority (à titre de souverain)
14
The South China Sea Online Resource, available at www.southchinasea.org/; see also Michael Bennett, The
People’s Republic of China and the Use of International Law in the Spratly Islands Dispute, 28 STAN. J. INT’L L. 425, at
pp. 439‐440 (1997).
15
Monique Chemillier‐Gendreau, Sovereignty over the Paracel and Spratly Islands (Brill/Martinus Nijhoff
Publishers, 2000), at p. 16 and Annex 18 (Note dated 8 March 1928 from Mr Bourgouin).
16
PUB. 161.
17
D. P O’Connell, Territory, INTERNATIONAL LAW 437, Vol. 1 (2nd ed.), Stevens & Sons, 1970 [hereinafter O’CONNELL
INTERNATIONAL LAW (2nd ed.)]; see also James Crawford, Acquisition and Transfer of Territorial Sovereignty, BROWNLIE’S
PRINCIPLES OF PUBLIC INTERNATIONAL LAW 217 (8th ed.), Oxford University Press, 2012 [hereinafter BROWNLIE (8th ed.)].
18
Charter of the United Nations, June 26, 1945, Article 2(4) provides that “all members shall refrain in their
international relations from the threat or use of force against the territorial integrity or political independence of
any state….” Accord M. Chemillier‐Gendreau, note 15 supra. (“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.”).
3
over the other state’s territory was public, peaceful, and uninterrupted for a long period of
time.19
Finally, a state may acquire sovereignty over territory that is not under the control of
any other state (terra nullius) to the extent that the state effectively occupies the territory.
Discovery alone, however, without subsequent acts of effective occupation, does not confer
title to territory—“an inchoate title of discovery must be completed within a reasonable period
by effective occupation of the region claimed to be discovered.”20 Moreover, an inchoate title
will not “…prevail over the continuous and peaceful display of authority by another State; for
such display may prevail even over a prior, definite title put forward by another State.”21
A claim to sovereignty based on effective occupation “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.”22 As discussed in the Clipperton Island case, besides the
animus occupandi, effective occupation requires the actual, and not the nominal, taking of
possession. “This taking of possession consists in acts, or series of acts, by which the occupying
state reduces to its possession the territory in question and takes steps to exercise exclusive
authority there.”23
The degree of actual administration (effectivités) that must be established by the
occupying state, however, may vary, particularly in cases of remote and uninhabited areas.
Under such circumstances, tribunals have recognized that “sovereignty cannot be exercised in
fact at every moment on every point of a territory” and that “[t]he intermittence and
discontinuity compatible with the maintenance of the right necessarily differ according as
inhabited or uninhabited regions are involved….”24 Accordingly, some tribunals have “been
satisfied with very little in the way of the actual exercise of sovereign rights, provided that the
other State could not make out a superior claim…particularly…in the case of claims to
sovereignty over areas in thinly populated or unsettled countries.”25 This exception to the
general rule that there must be an actual and continuous display of authority by the occupying
state is explained in detail in the Clipperton Island case.26
19
O’CONNELL INTERNATIONAL LAW (2nd ed.), at p. 423; see also BROWNLIE (8th ed.), at p. 216.
20
Island of Palmas Case (Netherlands/U.S.A.), U.N. Rep., Vol. II, p. 829 (1928), at p. 846.
21
Id.
22
Legal Status of Eastern Greenland Case (Denmark v. Norway), P.C.I.J., Series A/B, No. 53 (1933), at p. 45.
23
Clipperton Island Arbitration (Mexico v. France), 2 R.I.A.A. 1105 (1931), at p. 393. [The cited pages are from the
English translation at 26 Am. J. Int’l L. 390, at 393‐394 (1932).]
24
Island of Palmas Case (Netherlands/U.S.A.), U.N. Rep., Vol. II, p. 829 (1928), p. 831, at p. 840.
25
Legal Status of Eastern Greenland Case (Denmark v. Norway), P.C.I.J., Series A/B, No. 53 (1933), at p. 46. See also
Western Sahara Advisory Opinion, I.C.J. Reports 1975, p. 12, at p. 43.
26
Clipperton Island Arbitration (Mexico v. France), 2 R.I.A.A. 1105 (1931), at pp. 393‐394. [The cited pages are from
the English translation at 26 Am. J. Int’l L. 390, at 393‐394 (1932).] (“It is beyond doubt that…the actual…taking of
possession is a necessary condition of occupation. …Strictly speaking, and in ordinary cases, that only takes place
when the state establishes in the territory itself an organization capable of making its laws respected. …There may
also be cases where it is unnecessary to have recourse to this method. Thus, if a territory, by virtue of the fact that
it was completely uninhabited, is, from the first moment when the occupying state makes its appearance there, at
the absolute and undisputed disposition of that state, from that moment the taking of possession must be
considered as accomplished, and the occupation is thereby completed.”)
4
III. CHINA
A. Chinese Claims
China’s position regarding its sovereignty claims to the Paracel (Xisha) and Spratly
(Nansha) Islands was most recently published in June 2000 by the Ministry of Foreign Affairs
(MFA) of the People’s Republic of China (PRC) in a document entitled The Issue of South China
Sea.27 In short, China’s claim of indisputable sovereignty over the Paracel and Spratly Islands
and their adjacent waters is based on several factors, including historical evidence, economic
development, effective administration, and international recognition.28
1. Historical Evidence
According to the MFA, China was the first nation to discover and name the South China
Sea islands. References to the islands appear in a number of books dating as far back as the Han
Dynasty (206 BC‐220 AD). Yang Fu “described the geographic features of the South China Sea
Islands…” in his book, Yiwu Zhi (Records of Rarities).29 A famous Chinese navigator of the East
Wu State of the Three Kingdoms Period (220‐280)—General Kang Tai—also mentions the
islands in his book entitled Funan Zhuan (Journeys to and from Phnom). The general, along with
Zhu Ying, had been dispatched by Emperor Huangwu on a diplomatic mission to Funan
(present‐day Cambodia) via the South China Sea to meet with envoys from a number of states,
including the State of Tianzhu (present‐day India).30 Similarly, hundreds of books published
during the Jin (265‐410), Tang (618‐907), Song (960‐1279), Yuan (1271‐1368), Ming (1368‐
1644), and Qing (1644‐1911) Dynasties refer to the South China Sea islands. These include the
Dao Yi Zhi Lue (Abridged Records of Islands and Barbarians) written by Wang Dayuan, a
prominent Chinese navigator of the Yuan Dynasty who made numerous voyages to the South
China Sea, and the Nanzhou Yuou Zhi (Records of Rarities in Southern Boundary) by Wan Zhen,
which documents the encounters of Chinese sailors of the Han era (206 BC‐220 AD) with the
27
Ministry of Foreign Affairs of the People’s Republic of China, The Issue of South China Sea (June 2000),
[hereinafter MFA, The Issue of South China Sea], available at http://www.fmprc.gov.cn/eng/5767.html;
http://www.fmprc.gov.cn/eng/5765.html; http://www.fmprc.gov.cn/eng/5773.html;
http://www.fmprc.gov.cn/eng/5747.html; and http://www.fmprc.gov.cn/eng/5766.html. A previous version—
China’s Indisputable Sovereignty over the Xisha Islands and Nansha Islands—was published by the MFA in January
1980.
28
MFA, The Issue of South China Sea; see also Su Hao, China’s Positions and Interests in the South China Sea: A
Rational Choices in its Cooperative Policies, CENTER FOR STRATEGIC & INTERNATIONAL STUDIES, SOUTH ASIA PROGRAM, Sept.
12, 2011; Jianming Shen, International Law Rules and Historical Evidence Supporting China’s Title to the South
China Sea Islands, 21 HASTINGS INT’L & COMP. L. REV. 1‐75 (1997‐1998) [hereinafter Shen I]; and Jianming Shen, China’s
Sovereignty over the South China Sea Islands: A Historical Perspective, CHINESE JIL (2002), pp. 94‐157 [hereinafter
Shen II].
29
Shen I, at p. 18. See also Brian K. Murphy, Dangerous Ground: The Spratly Islands and International Law, 1 OCEAN
& COASTAL L.J. 187 (1994‐1995), at p. 200; Dr. Barry Hart Dubner, The Spratly “Rocks” Dispute—A “Rockapelago”
Defies Norms of International Law, 9 TEMP. INT’L & COMP. L.J. 291 (1995), at p. 309; M. Bennett, note 14 supra, at p.
434.
30
Shen I, at p. 19.
5
South China Sea islands on their return trip home from the Malay Peninsula.31 A book published
during the South Song Dynasty (1127‐1279)—Qiong Guan Zhi (Records of the Qiong Prefecture
and its Jurisdiction)—likewise reflects that the Spratlys and Paracels were under the jurisdiction
of the Qiong Prefecture (today’s Hainan Province).32
According to the MFA, Emperor Zhenyuan of the Tang Dynasty (785‐805) included the
South China Sea islands in the administrative maps of the Empire. Reference to the islands can
also be found in a number of maps, including the Hunyi Jiangli Lidai Guodu zhi Tu (Consolidated
Map of Territories and Geography and Capitals of Past Dynasties), published during the Ming
Dynasty, and the Geng Lu Bu (Road Map) of the Qing Dynasty.33
Chinese scholars likewise attribute great importance to Chinese efforts during the Song,
Yuan, Ming, and Qing Dynasties to include the South China Sea islands in the country’s official
maps as a demonstration of sovereignty. For example, Zhu Fan Tu (Maps of the Various
Barbarian Peoples) of the North Song Dynasty is a collection “of ancient Chinese maps that
referred to the South China Sea Islands as being subject to the Chinese rulers.”34 More
specifically, the Zhu Fan Tu (Maps and Charts of the Various Barbarian Peoples, the North Song
Dynasties) referred to the Spratlys and the sea area west of the Paracels as the outer limits of
China’s maritime boundary.35 Thus, both the Paracels and Spratlys “were within the boundary
of the Song Empire.”36
According to Chinese scholars, maps published in the Yuan Dynasty included the Paracel
and Spratly Islands as Chinese territory.37 Similarly, during the Ming Dynasty, “official Chinese
maps [such as the Hunyijiangli Hdai Guodu zhi Tu (Consolidated Map of Territories and
Geography and Capitals of Past Dynasties (1402))] continued to indicate China's sovereignty
over the South China Sea Islands.”38 Ming‐era maps were used by Admiral Zheng He during his
Seven Voyages. Official records of the Ming Dynasty, such as Qiong Guan Gu Zhi (Ancient
Records on the Jurisdiction of Qiongzhou Fu), also refer to Chinese jurisdiction over the Spratlys
and Paracels.39 In Zhengde Qiong Tai Zhi (Records of Qiong[zhou] and Tai[wan] During the Reign
31
MFA, The Issue of South China Sea; see also Shen II, at pp. 111 and 113‐116; Shen I, at pp. 19, 27‐28. Historical
evidence of the earliest Chinese presence in the Paracels can also be found in the Chronicles of the Sung Dynasty,
“which states that the last Sung Emperor, pursued by a Yuan (Mongol) Dynasty general, fled to the Paracels in an
attempt to reach Indo‐China.” Tao Cheng, The Dispute Over the South China Sea Islands, 10 TEX. INT’L L. J. 265
(1975), at p. 273.
32
References to the Spratlys and Paracels can also be found in other Song‐related books, such as Song Hui Yao Ji
Gao (Selected Manuscripts of the Digests of the Song Dynasties), Song Shi (The History of the Song Dynasties) and
Zhu Fan Tu (Maps and Charts of the Various Barbarian Peoples, the North Song Dynasty). Shen II, at pp. 132‐133;
see also Shen I, at pp. 23‐24.
33
MFA, The Issue of South China Sea; see also Shen II, at p. 106.
34
Shen II, at p. 126.
35
Shen I, at p. 24.
36
Id., at p. 26.
37
Some of these maps include: Yuandai Jiangyu Tu Xu (Map of the Territory of the Yuan Dynasty Illustrated);
Shengjiao Chiang Bei Tu) of 1330 by Li Zemin, the Hunyi Jiangli Tu (Consolidated Maps of the Territory [of the Yuan
Dynasty]) of 1380, and the Yu Di Tu (The Maps of the Territory [of Yuan]) drawn and illustrated by Zhu Siben
(Yuan). Shen II, at pp. 126‐127; see also Shen I, at pp. 28‐29.
38
Shen II, at p. 127. A similar reference is contained in the Wubei Mishu Dili Fu Tu (A Geographical Map Annexed to
the Secret Manual on Defense Preparations (1637)). Shen I, at p. 30.
39
Shen II, at p. 133.
6
of Emperor Zhengde), Tan Zhou recorded that “the sphere of jurisdiction of the Qiongzhou
Prefecture included the…Xisha Islands and Nansha Islands.”40
Qing Dynasty maps, such as the Sihai Zongtu (General Maps of the Four Seas), published
in 1730 by Chen Lunjiong, continued to depict the position of the Paracels and Spratlys within
the Qing boundary.41 Chen also published a book in 1730—Haikuo Wenchien Lu (Notes on
Lands Across the Sea)—that described the geographic positions of the Spratly and Paracel
Islands.42 Qing‐era records (e.g., Records of Wanzhou Subprefecture, Records of Qiongzhou
Prefecture and Guangdong Tong Zhi (General Records of Guangdong Province)) likewise reflect
that the South China Sea islands, including the sea areas surrounding the islands, were within
the jurisdiction of Wanzhou.43
A number of Chinese scholars place discovery and naming of the South China Sea islands
much earlier in Chinese history—as far back as the Xia Dynasty (2100‐1660 BC). A book written
during the Qin Dynasty (221‐206 BC)—Yi Zhou Shu (Scattered Books of the Zhou Dynasties)—
speaks of “tributes from the South Sea” being paid by the southern barbarians (including
present‐day Vietnam) to the rulers of the Xia Dynasty, and says that these tributes (turtles,
pearl‐carrying shellfish, hawksbill turtles, and other rarities) continued through the Shang
Dynasty (1600‐1050 BC), the Zhou Dynasties (1046‐256 BC), the Qin Dynasty (221‐206 BC) and
40
Shen I, at pp. 29‐30.
41
Other Qing‐era maps cited in support of Chinese sovereignty over the South China Sea islands include:
(1) Da Qing Zhong Wai Tianxia Quan Tu (The Complete Sino‐Foreign Maps of the Great Qing) of 1709;
(2) Qing £hi Sheng Fen Tu (Individual Maps of the Provinces Directly under the Administration of the Qing
Empire) of 1724;
(3) Huang Qing Ge Zhi Sheng Fen Tu (Individual Maps of the Provinces Directly under the Administration of the
Royal Qing) of 1755;
(4) Da Qing Wan Man Titong Quan Tu (The Complete Maps of the Unified Great Qing for Ten Thousand Years)
of 1767 charted by Zhu Xiling and revised by Huang Zhengsun;
(5) Qing Hui Fu Zhou Xian Ting Zpng Tu (The Qing‐Charted General Maps of the Capital Cities, Prefectures,
Counties and Tings) of 1800 charted by Xiao Feng;
(6) Da Qing Wan Man Titong Tianxia Quan Tu (The Complete Maps of the Whole Unified Country of Great Qing
for Ten Thousand Years) of 1803 charted by Yang Senzhong;
(7) Da Qing Wan Man Titong Dili Quan Tu (The Complete Geographical Maps of the Unified Great Qing for Ten
Thousand Years) of 1810;
(8) Da Qing Titong Tianxia Quan Tu (The Complete Maps of the Whole Unified Country of Great Qing) of 1817;
(9) Gu Jin Di Tu Quan Tu (The Complete Maps of the Lands and Territories Then and Now) of 1895;
(10) Da Qing Tianxia Zhonghua Ge Sheng Fu Zhou Xian Ting Dili Quan Tu (The Complete Geographical Maps of
the Provinces, Capital Cities, Prefectures, Counties and Tings of the Whole China of the Great Qing) of 1904
charted by Wu Changfa; and
(11) Da Qing Tianxia Zhonghua Ge Sheng Fu Zhou Xian Ting Dili Quan Tu (The Complete Geographical Maps of
the Provinces, Capital Cities, Prefectures, Counties and Tings of the Whole China of the Great Qing) of 1905
charted by Wang Xingshun.
Shen II, at pp. 127‐128. A book written by Yang Bingnan in 1844—Hai Lu (Illustrations of the Sea)—records “the
oration of Xie Qinggao, a Qing official…, in which the South China Sea islands were described in four groups…” and
a sea chart (Yiban Lu (Particular Illustrations)) prepared by Zheng Guangzu during the same time period contains
the locations of the “Dongsha, Zhongsha, Xisha and Nansha Islands.” Shen I, at pp. 33‐35.
42
Shen I, at p. 32; see also Hungdah Chiu and Choon‐Ho Park, Legal Status of the Paracel and Spratly Islands, OCEAN
DEV. & INT’L L., 3:1 (1975), 1‐28, at p. 10.
43
Shen II, at pp. 133‐134; see also Shen I, at p. 30.
7
the Han Dynasty (206 BC‐220 AD).44 References to the South China Sea islands also appear in
Shi Jing (The Classics of Poems), “a collection of…poems of the Spring and Autumn Period (475‐
221 BC)…” and two sets of classics of the Spring and Autumn Period authored by Zuo Qiuming—
Zuo Zhuan (Zuo’s Commentaries) and Guo Yu (Statements of the States)—both of which indicate
that the Zhou state “appeased the barbarians to make expeditions to the South China Sea….”45
Based on these early works, Chinese scholars argue that the “South China Sea Islands
were…destinations of Chinese expeditions and targets of conquests during the East Zhou
Dynasty (770‐221 BC) …” and that “such discovery and conquest…naturally led the Chinese
rulers and people to believe that the South China Sea Islands were part of China throughout
history, from the Xia Dynasty…to the Qing Dynasty….”46
Irrespective of whether the Spratlys and Paracels were discovered during the Xia or Han
Dynasty, China maintains that it had “the earliest recorded contact with the islands.”47
Accordingly, some Chinese and western scholars argue that discovery of the South China Sea
islands, at the very least, vested China with an inchoate title to the islands, which China could
perfect within a reasonable amount of time by taking final and decisive sovereign action over
the claimed territory.48
2. Economic Development
According to the MFA, Chinese fishermen have been exploiting the South China Sea
islands since the Jin Dynasty (265‐420).49 In his article, Chronicles of Guangzhou, Fei Yuan makes
reference to fishing and collection of coral samples by Chinese fishermen.50 These activities
became more organized during the early days of the Ming Dynasty (1368‐1644). Fishermen
from Haikou, Puqian, and Qinglan Ports, as well as Wenchang County, went to the islands to
fish for sea cucumbers and other sea produce. Accounts of these fishing expeditions can be
found in the 1868 Guide to the South China Sea.51 These fishermen were guided by the Road
Map, which showed the navigational routes and courses from Hainan Island and mainland
China to the Paracel and Spratly Islands.
Chinese scholars indicate that fishing boats from Hainan Island (Wenchang and Qionghai
Counties) and Leizhou Peninsula have continued to fish the waters of the South China Sea on an
annual basis since the founding of the Republic of China in 1912. Evidence of these post‐Qing
44
Shen II, at pp. 102‐103; see also Shen I, at pp. 15‐16.
45
Shen II, at pp. 103‐104; see also Shen I, at p. 17.
46
Shen II, at pp. 104‐105; see also Shen I, at pp. 15‐17.
47
M. Bennett, note 14 supra; see also B. Murphy, note 29 supra, at p. 200 (“There is little doubt that the Chinese
were the first to discover the Spratlys.”); B. Dubner, note 29 supra, at p. 309 (“Despite the disputed dates, China
may claim the earliest recorded contact [with the Spratlys].”).
48
H. Chiu and C. Park, note 42 supra, at pp. 17‐18; see also B. Murphy, note 29 supra, at p. 200.
49
According to some Chinese scholars, economic exploitation of the South China Sea began as early as the Xia
Dynasty (2100‐1600 BC). Shen II, at pp. 111 and 130. See also Tao Cheng, note 31 supra, at p. 274.
50
Shen I, at p. 20.
51
MFA, The Issue of South China Sea (“…fishermen from Hainan Island went to Zhenhe Isles and Reefs and lived on
sea cucumber and shells they got there. The footmarks of fishermen could be found in every side of the Nansha
Islands and some of the fishermen would even live there for a long period of time. Every year, there were small
boats departing from Hainan Island for the Nansha Islands to exchange rice and other daily necessities for sea
cucumber and shells from the fishermen there. The ships used to leave Hainan Island in December or January
every year and return when the southwesterly monsoon started.”). See also Shen II, at pp. 130‐131.
8
Dynasty activities can be found in a number of Chinese and foreign sources, including a 1918
book written by Okura Unosuke entitled Stormy Islands (about a Japanese expedition to Beizi
Island) and A Survey of the New South Islands (a Japanese publication that indicates Chinese
fishermen resided on the islands and grew coconuts, papaya, sweet potato and vegetables).
Records from a 1933 investigative trip to the Paracel Islands by Miyoshi and Matuo of Japan
also discuss the presence of Chinese fishermen on Beizi (North) and Nanzi (South) Islands.52
Similarly, an account written in 1933 by Chinese historian and geographer Ling Chunsheng
makes reference to the presence of Chinese fishermen on Amboyna Cay, Spratly Island, Itu Aba
Island, Loaita Island, Thitu Island, Northeast Cay, Southwest Cay, Namyit Island, and West York
Island in the Spratly archipelago.53
Although the MFA acknowledges that early Chinese activities on the Spratlys were not
state sponsored, it indicates that subsequent fishing and other productive activities were
organized with the approval and support of the Chinese government. In addition, fishermen
were required to pay taxes and fees to the Chinese government in order to exploit the
resources of the Spratlys.
Chinese scholars additionally emphasize that in 1910 the Qing government invited
Chinese merchants to submit contracts to administer the development and exploitation of the
South China Sea Islands, indicating that the government would provide protection to the
merchants and maintain order “to strengthen [China’s] territorial sovereignty and…protect
[Chinese] titles and interests” in the two island groups.54 This practice was expanded by the
Republic of China (1912‐1949), although Chinese scholars acknowledge that most of the
development and exploitation activities occurred in the Paracels, not the Spratlys.55 Following
52
53
Shen II, at pp. 141‐142.
54
Id., at p. 135; see also Shen I, at p. 36.
55
Examples of development and exploitation activities in the Paracels include:
‐ In 1917, a Chinese businessman of the Hai Li Company, He Cheng'en, applied to the Office of the
Governor of Guangdong Province for permission to mine phosphorus ore.
‐ In 1919, a Chinese businessman, Deng Shiying, applied to develop selected islands in the Paracels for
planting and farming.
‐ In 1921, the Ministry of Internal Affairs of the Republic of China approved the application of a
businessman from Guangdong, He Ruinian (Ho Shui‐nien), to engage in fishing, reclamation and
cultivation, as well as to develop and exploit minerals. The license was revoked when the Chinese
government discovered that Mr. He had assigned his license to a Japanese company—the Nanxing Shiye
Company.
‐ Between 1929 and 1931, the Guangdong Provincial government granted licenses to Chinese businessmen,
including Song Xiquan and Yan Jingzhi, to exploit guano.
‐ In 1932, the Chinese government contracted with the China National Fertilizer Company (Zhonghua
Guochan Feitian Gongsi) to develop and exploit natural resources in the Paracels.
‐ In 1932, the Industrial Testing Institute of the Department of Construction of the Guangdong provincial
government began mining guano on the Paracel Islands.
‐ In 1933, the Department of Construction of the Guangdong provincial government made preparations to
construct a Guano Fertilizer Producing Plant on the Paracels and made plans to develop all of the Paracel
Islands.
‐ In 1947, the Committee on Natural Resources of China requested the central government to consider
entrusting the Zhongyuan Qiye Gongsi (Zhongyuan Enterprise Co.) with mining guano in the Paracel
Islands.
9
the establishment of the People’s Republic of China in 1949, the new government continued to
economically exploitation the South China Sea islands.56 Again, most of these activities were
conducted in the Paracels.
The MFA and Chinese scholars assert that China has continued to assert its exclusive
resource rights in the South China Sea. For instance, in June 14, 1976, the MFA reaffirmed that
“China has maintained indisputable sovereignty over the Xisha Islands and Nansha Islands and
their surrounding sea areas, and the natural resources in these areas are China's property.”57 A
similar statement was made in September 1979 when the MFA “reiterated that China has
indisputable sovereignty over the Xisha Islands and Nansha Islands and their surrounding sea
areas, and the natural resources in these areas are China's property.”58 The following year, on
July 21, 1980, the MFA issued a statement condemning an agreement between Vietnam and
the Soviet Union to jointly explore and exploit oil and gas deposits on Vietnam’s southern
continental shelf. The statement reiterated that “the Xisha and Nansha Islands, just like the
Dongsha and Zhongsha Islands, have always been part of Chinese territory; the natural
resources in the above areas belong to China” and that “the Soviet‐Vietnamese agreement and
the like are invalid.”59 A similar position was taken in April 1996 after Petro Vietnam and
Shen I, at pp. 38‐39, 45. See also Tao Cheng, note 31 supra, at p. 274; H. Chiu and C. Park, note 42 supra, at pp. 11‐
12; Stein Tønnesson, An International History of the Dispute in the South China Sea, EAST ASIAN INSTITUTE WORKING
PAPER NO. 71, Mar. 16, 2001note 55, at p. 8; M. Chemillier‐Gendreau,note 15 supra, at pp. 101‐102, Annex 10 (Note
of 29 September 1932 from the Legation of the Chinese Republic in France to the Ministry of Foreign Affairs, Paris),
Annex 14 (Letter of 6 October 1921, from the official in charge of the Consulate of France in Canton to the Président
du Conseil, Minister for Foreign Affairs).
56
The following are examples of economic development of the South China Sea islands following the
establishment of the People’s Republic of China:
− From 1950 to 1952, the governments of Wenchang County, Qionghai County, Lingshui County, and others
organized fishermen of Hainan to exploit the waters surrounding the Xishas and Nanshas; this practice has
continued ever since.
− In 1953, the Aquatic Products Corporation of the Hainan Special Administrative Prefecture began to mine
and exploit guano in the Xisha Islands.
− In May and June 1955, the Hainan Special Administrative Prefecture dispatched a survey and
reconnaissance group to the Xishas to assess the natural resources on the islands.
− In April 1956, the Aquatic Products Department of Guangdong Province organized a reconnaissance team
to investigate the aquatic resources in the Xisha Islands. A central working station was established on
Yongxing Island, and branch stations were set up on other islands. More than 200 team members worked
all over the islands. The team also set up Supply and Marketing Cooperatives (small shops), medical
clinics, clubs, and power stations.
− In 1957, the Guano Corporation of the Hainan Special Administrative Prefecture mined guano and
phosphate rocks on the Yongxing Island, with more than 100 workers participating. …
− From the winter of 1959 to April 1960, the Aquatic Products Bureau of the Hainan Special Administrative
Prefecture organized 131 fishing boats and 1,752 fishermen from the coastal counties to engage in large‐
scale fishing in the waters surrounding the Xisha and Nansha Islands.
Shen I, at p. 47.
57
Id., at p. 67. On January 1, 2014, new regulations took effect that require foreign fishing vessels to obtain prior
approval from China to fish in the 2 million km2 sea area administered by Hainan Province in the South China Sea
(waters encompassed by the so‐called “nine‐dash line”). Brian Spegele, Beijing Moves to Bolster Claim in South
China Sea, THE WALL STREET JOURNAL, Jan. 9, 2014, at p. A9.
58
59
Id., at p. 68.
10
Conoco announced that they had signed a contract for joint exploration and drilling in the
Vanguard Bank (Wan’an Tan). In that case, the MFA reasserted “that China has incontestable
sovereignty over the Nansha Islands and their adjacent waters.”60
Continued foreign investment in the region in the 21st century has prompted China to
reiterate its opposition to any oil and gas exploitation in the South China Sea without Beijing’s
permission. On September 22, 2011, the Chinese Foreign Ministry condemned a deal between
India’s state‐owned Oil and Natural Gas Corporation (ONGC) Videsh Ltd. and PetroVietnam to
explore and develop oil and gas blocks in the South China Sea within Vietnam’s claimed EEZ.
The MFA’s statement indicated that any hydrocarbon exploration in the South China Sea
without Beijing’s approval was an infringement on PRC sovereignty and, therefore, illegal and
invalid.61 China reacted similarly in April 2012 to an announced deal between a Russian natural
gas producer (Gazprom) and Vietnam Oil & Gas Group to develop two gas blocks in the South
China Sea.62 Then, in May 2014, state‐owned China National Offshore Oil Corporataion
(CNOOC) deployed its deep sea drilling rig HD‐981 to the disputed waters south of the Paracels
to conduct exploratory drilling for oil. A large number of government vessels, including seven
PLAN warships, were deployed to support the operation.63
China has additioinally used its navy and civilian maritime law enforcement agencies to
directly interfere with Vietnamese and Filipino resource exploration and exploitation activities
within their respective claimed EEZs in the South China Sea. On March 2, 2011, for example,
two China Maritime Surveillance (CMS) patrol boats (No. 71 and 75) forced the survey ship M/V
Veritas Voyager that was conducting a seismic survey for oil and gas on behalf of the Philippine
Department of Energy in the vicinity of Reed Bank (80 nm west of Palawan Island) to withdraw
from the area. Forum Energy—the UK‐based company that had been awarded the contract to
conduct seismic surveys in the Sampaguita gas field—completed the survey at the end of March
with the assistance of a Philippine Coast Guard vessel that was deployed to deter further
Chinese interference with the Voyager’s work. Following completion of the survey, the
Philippines invited foreign investors and oil companies to bid for the right to explore for oil and
gas in 15 different blocks off the west coast of Palawan. Beijing immediately protested Manila’s
actions, alleging that two areas (Blocks 3 and 4) fall under China’s “indisputable sovereignty.”64
A similar incident occurred off the coast of Vietnam on May 26, 2011, when three CMS
patrol vessels confronted the Binh Minh 02, a survey ship being operated by Petro Vietnam
approximately 116 nm off Dai Lanh, within Vietnam’s claimed EEZ and some 600 km south of
China’s Hainan Island. The incident ended when one of the CMS patrol vessels intentionally cut
the cable being towed by the survey ship.65 Two weeks later, on the 9th of June, a Chinese
fishing vessel (No. 62226) that was operating with two CMS patrol vessels intentionally rammed
60
Id., at p. 71.
61
Michael Martina, China paper condemns Vietnam‐India energy cooperation, REUTERS, Sept. 22, 2011.
62
China Reaffirms Position on Oil, Gas Exploitation, CHINA DAILY, Apr. 11, 2012.
63
Ernest Bower & Gregory Poling, Critical Questions: Separating Fact from Fiction about Myanmar’s Rohingya,
CENTER FOR STRATEGIC & INTERNATIONAL STUDIES, May 7, 2014.
64
Manila Rejects New Chinese Claim To Territory Just 50 Miles Away From Philippine Province, THE WASHINGTON
POST, Nov. 14, 2011; Ian Storey, China and the Philippines: Implications of the Reed Bank Incident, China Brief,
Volume 11, Issue 8, THE JAMESTOWN FOUNDATION, May 6, 2011.
65
VN Demands China Stop Sovereignty Violations, VIETNAM PLUS, May 29, 2011.
11
the survey cable of the Viking II. The Petro Vietnam ship was conducting a seismic survey
approximately 60 nm off the southern coast of Vietnam, within Vietnam’s claimed EEZ and over
1,000 km from Hainan Island.66 China’s official response to the Binh Minh incident indicated
that:
China holds a consistent and clear‐cut position on the South China Sea issue. China
opposes Vietnam's oil and gas exploration activities within the waters under the
jurisdiction of China which undermine China's rights and interests as well as jurisdiction
over the South China Sea and violate the bilateral consensus on the South China Sea
issue. Actions taken by China's competent authorities are regular maritime law
enforcement and surveillance activities in the waters under the jurisdiction of China.67
Fifteen months later, on November 30, 2012, Chinese vessels once again took action
against the Vietnamese seismic research vessel Binh Minh 02, which was operating within
Vietnam’s claimed EEZ about 43 miles southeast of Con Co Island off the Vietnamese coast
(Quang Tri Province).68 The Binh Minh 02 was conducting a seismic survey in Block 113, which is
jointly owned by Petro Vietnam and Russia’s Gazprom, when it was surrounded by a number of
Chinese vessels. When the Binh Minh ordered the Chinese ships to depart the area, two of
them cut the survey ship’s exploration cable.69
3. Effective Administration
The MFA claims that China has exercised sovereignty and effective jurisdiction over the
South China Sea islands since the Yuan Dynasty (1271‐1368).70 To support its claims, the MFA
cites the Geography Book of the History of the Yuan Dynasty and the Map of the Territory of the
Yuan Dynasty with Illustration, both of which describe the islands as sovereign Chinese
territory.71
a. Naval Patrols
The MFA notes the presence of naval patrols as further evidence that China exercised
effective administration and control over the South China Sea islands beginning in the 13th
century. For example, the History of the Yuan Dynasty has accounts of naval patrols and
inspection activities by the navy on the islands.72
Chinese scholars indicate that the practice of conducting naval patrols in the South
China Sea occurred much earlier, beginning with the Han Dynasty (206 BC‐220 AD) during the
first century. In 43 AD, Admiral Ma Yuan conquered the territory of the Nanman regions/Rinan
66
Sea spat raises China‐Vietnam tensions, NAMVIET NEWS, June 10, 2011.
67
Peter Lee, Southeast Asia rises in US reset, ASIA TIMES ONLINE, June 4, 2011.
68
Jeremy Page, Vietnam Accuses Chinese Ships, THE WALL STREET JOURNAL, Dec. 4, 2012.
69
Ben Bland and Leslie Hook, Beijing accused of oil sabotage, FINANCIAL TIMES, Dec. 4, 2012, p. 2.
70
Some Chinese scholars place Chinese authority and control over the South China Sea islands as far back as the
Han Dynasties (206 BC‐220 AD). Shen II, at p. 132.
71
MFA, The Issue of South China Sea.
72
Id.
12
Prefecture (present day central/northern Vietnam).73 The Han government also conducted
naval expeditions to the Malay Peninsula via the Spratly Islands, and the Wu State of the Three
Kingdoms Period sent envoys to India via the South China Sea.74 Naval patrols continued during
the Jin, Song, Yuan, Ming and Qing Dynasties to the Republican era.75 Evidence of naval
patrols during the Jin Dynasty can be found in Hao Yulin’s Guangdong Tong Zhi (The General
Records of Guangdong).76 Similar patrols were undertaken during the Song Dynasty and
recorded by Xei Lingyun in Wudi Lei (In Memory of Emperor Wudi) and Li Daoyuan in Shui Jing
Zhu (Commentaries on the Books of Waters), as well as during the Yuan Dynasty (Yuan Shi
(History of the Yuan Dynasty), Shi Bi Zhuan (History about [General] Shi Bi), and Dao Yi Zhi Lue
(Abridged Records of Islands and Barbarians).77
Additionally, according to Chinese scholars, the Emperor of the Yuan Dynasty
“dispatched the…astronomer Guō Shoujing…to the South China Sea [in 1279] to survey and
measure the Xisha and Nansha islands and the adjacent sea area.”78 Guō’s base camp was in
the Paracel Islands, and his research is recorded in the Yuan Shi (History of the Yuan Dynasty).79
Two decades later, in 1292, an expeditionary force of the Yuan Empire, under the command of
Shi Bi, was dispatched to Java and reportedly sailed through the Paracel and Spratly Islands.80
During the Ming Dynasty, the MFA notes that “the Hainan Garrison Command…was
responsible for inspecting and patrolling as well as exercising jurisdiction over the Xisha
[Paracel], Zhongsha [Macclesfield Bank] and Nansha [Spratly] Islands.”81 To support its claim,
the MFA points to the inscription on the Memorial Tablet of the Tomb of General Qian Shicai of
the Hainan Garrison Command, which reads:
Guangdong [Province] is adjacent to the grand South China Sea, and the territories
beyond the Sea all internally belong to the Ming State. General Qian led more than ten
thousand soldiers and 50 huge ships to patrol tens of thousands of lis82 on the South
China Sea.83
73
“In his Hou Han Shu (Books of the Latter Han Dynasty), Xie Cheng recorded that Chen Mao, the Bieja…of Jiaozhi
Province…, accompanied Zhou Chang, the Cishi…of Jiaozhou Province, in their naval inspection and patrolling
cruise to the islands in the South China Sea….” Shen II, at p. 122; see also Shen I, at p. 18.
74
Shen II, at p. 111.
75
Id., at p. 122; see also Su Hao, note 28 supra.
76
Shen II, at p. 122 (“Bao Jing, the Administrator of nan Hai…, went on patrolling and inspection voyages in the
South China Sea….”). See also Shen I, at pp. 20‐21.
77
Shen II, at pp. 123‐124. The Shi Bi Zhuan (Supplementary History) of the Yuan Shi indicates that Chinese naval
forces sailed through the Paracels and the Spratlys and landed on the islands of “Hundun Dayang, Ganlan…,
Jialimada and Julan, where they…cut down lumbers to build small boats….” Shen I, at p. 27.
78
Shen II, at pp. 126.
79
Shen I, at p. 27.
80
Shen II, at pp. 111‐112; see also Shen I, at p. 27; Tao Cheng, note 31 supra, at p. 273; H. Chiu and C. Park, note 42
supra, at p. 10.
81
Shen II, at p. 125; see also MFA, The Issue of South China Sea.
82
A “li” is a Chinese unit of distance equal to about 500 meters.
83
13
Chinese sources reflect that the areas patrolled by General Qian included the Paracels, the
Spratlys, and Macclesfield Bank.84 “A well‐known navigator and high‐ranking official of the Ming
imperial court, Zheng He…, [also] led seven…large scale voyages through and beyond the South
China Sea between 1405 and 1433…,” recording the location of the islands on detailed maps
drawn between 1425 and 1430.85 Zheng purportedly used the Paracels and other South China
Sea islands “as stop‐over points during voyages to and from the Indian Ocean and other
destinations.”86 He also “surveyed all the major South China Sea islands.”87
Chinese scholars contend that the Qing Dynasty (1644‐1911) continued to patrol the
South China Sea and exercise administrative jurisdiction over the South China Sea islands.
Between 1710 and 1712, Vice Admiral Wu Sheng of the Guangdong Navy “personally led his
fleet to the South China Sea Islands and the vicinity to patrol the sea area: …[the fleet] started
from Qiongya [on Hainan Island] by way of Tonggu, passing through Qizhou Yang and Sigeng
Sha, traveling three thousand lis….”88 The Qing Dynasty additionally depicted the islands as
Chinese territory on a number of official maps, including A Map of Administrative Divisions of
the Whole China of the 1724 Map of Provinces of the Qing Dynasty, A Map of Administrative
Divisions of the Whole China of the 1755 Map of Provinces of the Imperial Qing Dynasty, the
1767 Map of Unified China of the Great Qing for Ten Thousand Years, the 1810 Topographical
Map of Unified China of the Great Qing for Ten Thousand Years and the 1817 Map of Unified
China of the Great Qing for Ten Thousand Years.89
b. Administrative Control
The MFA states that there is a wealth of official government documents, as well as
Chinese history books and official maps, which record the exercise of jurisdiction by successive
Chinese governments over the South China Sea islands and recognize these islands as Chinese
territory. The MFA further asserts that up until the beginning of the 20th century, China had
exercised peaceful jurisdiction over the South China Sea Islands without any disputes.90
Chinese scholars supplement the MFA’s White Paper with additional evidence to
support China’s claims. One example cited by these scholars as evidence of China’s effective
administration and control of the archipelagoes is the charting and opening of sea lanes
through the South China Sea. The West Han rulers purportedly “established…close navigational
and commercial ties with Southeast Asia, Sri Lanka and India through the usage of sea‐routes in
the South China Sea.”91 Chinese ships en route to Sri Lanka and other ports would necessarily
pass through the South China Sea and the South China Sea islands. It was during the reign of
Emperor Wudi of West Han that the South China Sea was renamed “Zhanghai.”92 A set of books
written by a South Song official, Zhao Rukuo, in 1225—Zhu Fan Tu (Maps and Charts of the
Various Barbarian Peoples) and Zhu Fan Zhi (Records of the Various Barbarian Peoples)—
84
85
Shen II, at p. 112; see also H. Chiu and C. Park, note 42 supra, at p. 10.
86
Shen I, at p. 31.
87
Tao Cheng, note 31 supra, at p. 273.
88
Shen II, at p. 125; see also Shen I, at p. 35; M. Chemillier‐Gendreau, note 15 supra, at p. 62.
89
90
Id.
91
Shen II, at p. 118.
92
Shen I, at p. 18.
14
similarly depict “navigational sea lanes from and to the Chinese mainland through the South
China Sea Islands…”93 Another set of books from the Song era, written by Zho Qufei—Lingwai
Daida (Substitute Replies from Lingwai)—contain “a similar depiction of the sea routes through
the Nansha Islands between China and other parts of the world….”94 These sea routes, which
were used by Zheng He to conduct his renowned seven voyages through and beyond the South
China Sea between 1405 and 1433, “greatly facilitated China’s interactions with the outside
world.”95
Other acts of sovereignty cited by Chinese scholars to support China’s claim to the South
China Sea islands “include the installation of facilities for fishing, forecasting and navigation,
rescues of Chinese and foreign vessels in distress at sea,96 granting and revoking licenses to
private companies for the exploration and exploitation of natural resources, and organizing
large scale fishing and other production activities…” around the Spratlys and Paracels.97
The Qing Ji Waijao Shi Liao (Historic Materials of the Diplomacy of the Qing Dynasty)
makes reference to “plans” by the Qing Customs and General Revenue Office between 1862
and 1874 “to erect lighthouses in the Dongsha [Pratas] Islands for facilitating navigation in the
South China Sea.”98 Similar plans were made in 1908 by the Qing Customs Office “to build
lighthouses on the Xisha [Paracel] Islands upon the request of foreign countries.”99
Following the 1911 Revolution, the new government of Guangdong Province placed the
Paracels under the jurisdiction of Ya County (Ya Xian) of Hainan Province. This decision was
reaffirmed by the Southern Military Government in 1921—on March 30, 1921, the Governor of
Guangdong Province annexed the Paracel Islands and placed them under the jurisdiction of
Hainan Island.100 The MFA asserts that the Republic of China took a number of other measures
to demonstrate Chinese sovereignty over the South China Sea islands. Some of the measures
cited by the MFA include: (1) furnishing national flags to Chinese fishermen and fishing boats
engaged in fishing in the Spratly Islands; (2) organizing trips to the Spratlys to survey their
history and geography; and (3) authorizing “a map‐printing and toponymic agency to rename
and approve the names of all the islands on the South China Sea including the Nansha
Islands….”101
In May 1928, the government of Guangdong Province deployed “a team of military
officers, government officials and scientific and technological personnel” to the Paracels to
conduct field surveys and investigations.102 Between 1932 and 1935, the Republic of China
established an interagency Committee for the Review of Maps of Lands and Waters of China,
93
Shen II, at p. 118.
94
Id., at pp. 119‐120.
95
Id., at p. 121; see also Su Hao, note 28 supra.
96
Examples of Chinese search and rescue operations cited by Chinese scholars include the 1755 rescue of 16
foreign sailors who were shipwrecked by a storm and the 1762 rescue of ships from Xianluo (current‐day Thailand)
that had been damaged in the vicinity of the Paracels. Shen I, at p. 35.
97
Shen II, at p. 134.
98
Id.
99
Id., at pp. 134‐135; see also Shen I, at p. 36.
100
M. Chemillier‐Gendreau, note 15 supra, at p. 101.
101
MFA, The Issue of South China Sea; see also Su Hao, note 28 supra.
102
The team produced a detailed “Report of Surveys on the Xisha [Paracel] Islands.” Shen I, at p. 38. See also Tao
Cheng, note 31 supra, at pp. 273‐274.
15
which included officials from the Headquarters of the General Staff, the Ministry of Internal
Affairs, the Ministry of Foreign Affairs, the Navy Command, the Ministry of Education and the
Mongolian and Tibetan Affairs Commission. This committee examined and approved the names
for 132 of the land features located in the Paracel and Spratly archipelagoes, as well as
Macclesfield Bank.103 The committee subsequently depicted these features on the 1935
Zhongguo Nan Hai Ge Daoyu Tu (Map of the Islands in the South China Sea).104 The following
year, Bai Meichu—a famous Chinese geographer—drew up The Whole Map of China After the
Southward Expansion of the Sea Border, which for the first time depicted “James Shoal at four
degrees north latitude China’s southernmost point.”105 Also, in 1936, the Chinese government
“constructed meteorological observatories, radio stations, lighthouses and similar types of
structures…” in the Paracels “in accordance with a resolution adopted by the 1930 Hong Kong
Conference on Meteorology in the Far East….”106
Following World War II, the Ministry of Internal Affairs, in consultation with the Chinese
Navy and the government of Guangdong Province, appointed Xiao Ciyi and Mai Yunyu as
Special Commissioners for the Paracel and Spratly Islands, respectively, in 1946. According to
the MFA, the commissioners were tasked with taking over the two archipelagoes and erecting
sovereignty markers on the islands.107 In October and November 1946, ROC naval units visited
the Paracels and Spratlys “and assisted in setting up radio and meteorological stations,”
including a weather station on Itu Aba (Taiping) Island.108 Ministry of Internal Affairs officials
also conducted surveys “and other administrative functions with regard to selected islands and
reefs of both island groups.”109 Additionally, Nationalist troops were stationed on Itu Aba Island
“to oversee and patrol neighboring islands and adjacent waters….”110
In 1947, the islets were temporarily placed under the administration of the ROC Navy
and the Ministry of Internal Affairs “renamed 159 islands, reefs, islets and shoals in the South
China Sea, including the Nansha Islands” and “subsequently publicized all the names for
administrative purposes” in 1948.111 Also, in June 1947, the government of Guangdong
Province organized the Exhibition Fair of Items and Rarities from the Xisha and Nansha Islands.
According to Chinese scholars, the exhibit contained more than 1,300 artifacts that provided
further evidence of Chinese sovereignty over the South China Sea islands.112 Archeological
103
In 1983, the Chinese Toponymy Committee publicized the approved names of 287 islands, reefs, islets, and
shoals on the South China Sea. MFA, The Issue of South China Sea.
104
Id.; see also Shen II, at p. 128 (This was purportedly the first official map published by the Republic of China.);
Shen I, at p. 39; Xu Zhiliang, Li Lixin, Fan Hong, and Zhou Xin, The Border Significance of the South China Sea ‘Nine
Dash Line’ in Chinese Hisotrical Maps—Also a Discussion of Jurisdictional Rights Over Islands, Reefs, and Waters
Within the ‘Nine Dash Line’, BEIJING TAIPINGYANG XUEBAO (PACIFIC JOURNAL) 79‐84, Feb. 25, 2013.
105
Xu Zhiliang, Li Lixin, Fan Hong, and Zhou Xin, note 104 supra.
106
Shen I, at p. 39.
107
108
Shen II, at p. 137; see also Shen I, at pp. 44‐45.
109
Id.
110
Id. See also B. Murphy, note 29 supra, at p. 192; B. Dubner, note 29 supra, at p. 310.
111
MFA, The Issue of South China Sea; see also Shen II, at pp. 107, 145; Shen I, at p. 45. According to Chinese
scholars, no nation, including France and Vietnam, protested these actions. H. Chiu and C. Park, note 42 supra, at
p. 14.
112
Shen I, at p. 45. Other archeological discoveries cited by Chinese scholars to demonstrate China’s historical ties
to the Paracel Islands and other areas in the South China Sea include:
16
reports that purportedly document the existence of a Chinese pagoda on Pattle Island have also
been cited in support of China’s claim to the South China Sea islands. However, the pagoda was
destroyed, so there is no way to verify the accuracy of these reports.113
The origins of China’s nine‐dash line (then 11‐dash line) in the South China Sea can be
traced to the Kuomintang government of the Republic of China—the line first appeared in 1947
and was depicted on a map of the South China Sea in 1948. According to Chinese scholars, this
map—Nan Hai Zhudao Weizhi Tu (Map of Locations of South China Sea Islands)—was intended
to indicate the “traditional boundary of China’s territory in the South China Sea.”114
Additionally, in February 1948, the Ministry of the Interior approved and published the Republic
of China Administrative Region Map, which also depicted China’s 11‐dash line claim in the
South China Sea.115 The rights conveyed by the line included “sovereignty over the islands in the
South China Sea and…water resource development and jurisdiction, namely fishing rights.”116
− Ancient Chinese coins discovered in the Paracels by Japanese fishermen in 1920 and Professor Wang
Guangwei of Zhongshan University in 1947.
− Ancient Chinese coins discovered by Fang Jun, Director of the Radio Station in the Pratas Islands, in 1935.
− Between 1974 and 1975, archaeologists of Guangdong Province uncovered thousands of pieces of
historical relics on the Paracel Islands, including pottery and porcelain items dating from the Southern
Dynasty (420‐589), the Sui Dynasty (581‐618), the Tang Dynasty (618‐907), the Song Dynasty (960‐1279),
the Yuan Dynasty (1206‐1368), the Ming Dynasty (1368‐1644), the Qing Dynasty (1644‐1911), and modem
times (1912‐).
− Between May and June 1991, a group of experts led by Professor Wang Hengjie uncovered historical
Chinese relics in the Paracel Islands, including pottery and stoneware made in the primitive era (pre‐21st
century B.C.), the Spring and Autumn Period (770‐476 B.C.), the Warring States Period (476‐221), the Qin
Dynasty (221‐206 B.C.), the Han Dynasty (206 B.C.‐220 A.D.), the Tang Dynasty (618‐907), the Song
Dynasty (960‐1279), the Yuan Dynasty (1279‐1368), the Ming Dynasty (1368‐1644), and the Qing Dynasty
(1644‐1911).
− Archaeologists discovered residential houses of the Ming and Qing dynasties (1368‐1911) on the Paracel
Islands in 1995.
− Between April and May 1996, a research team discovered numerous stone sculptures, granite pillars,
beams and other items “in the middle west of the South China Sea, to the northeast of Shanhu Island of
the Xisha Islands, more than 200 nautical miles off the Chinese mainland,” including “a 300‐year‐old
headless stone sculpture of a man dressed as an ancient minister,” a “small sculpture of a stone lion” and
other sculptures, as well as “a great number of fragments of pottery and porcelain” from the Song (960‐
1279), Yuan (1271‐1368), Ming (1368‐1644) and Qing (1644‐1911) dynasties.
Id., at pp. 48‐50.
113
114
Shen II, at p. 129.
115
Xu Zhiliang, Li Lixin, Fan Hong, and Zhou Xin, note 104 supra. The 11‐dash line was reaffirmed by the newly
established government of the People’s Republic of China in 1949, but was subsequently replaced by a nine‐dash
line in 1953 after Zhou En‐lai authorized the elimination of two of the dashes in the Gulf of Tonkin. Li Jinming and
Li Dexia, The Dotted Line on the Chinese Map of the South China Sea: A Note, OCEAN DEVELOPMENT & INTERNATIONAL
LAW, 34:287‐295, 2003.
116
Id. Reference to the U‐shaped line was also included in China’s 2009 protest to the UN regarding Vietnam’s and
Malaysia’s submissions to the Commission on the Limits of the Continental Shelf (CLCS), which claimed extended
continental shelves in the South China Sea. In both of these demarches, Beijing re‐affirms that it has “indisputable
sovereignty over the islands in the South China Sea and the adjacent waters, and enjoys sovereign rights and
jurisdiction over the relevant waters as well as the seabed and subsoil thereof [as depicted on the U‐shaped
map].” The executive summary of Vietnam’s submission to the Commission on the Limits of the Continental Shelf
is available at http://www.un.org/Depts/los/clcs_new/submissions_files/vnm37_09/vnm_clcs37_2009e.pdf. The
17
Then, in March 1948, over 100 ROC marines were deployed to the Paracels, Spratlys, and
Macclesfield Bank to relieve previously stationed troops.117
After the People’s Republic of China was founded in 1949, the government adopted the
U‐shaped line in all official Chinese maps depicting the South China Sea.118 Within this line,
Beijing claims that it has “indisputable sovereignty over the islands in the South China Sea and
the adjacent waters, and enjoys sovereign rights and jurisdiction over the relevant waters as
well as the seabed and subsoil thereof [as depicted on the U‐shaped map].”119 All of the South
China Sea islands—the Spratly, Paracel, and Pratas Islands, Macclesfield Bank, and Scarborough
Shoal—are contained within the line.
In April‐May 1950, Taiwan withdrew all of its forces from the South China Sea islands,
including Woody Island and Itu Aba Island, after Chinese Communist forces landed on Hainan
Island.120 Communist forces, however, did not occupy Woody or Itu Aba Islands after they were
abandoned by the Nationalists. French garrisons maintained control of a number of the islands
in the Crescent Group of the Paracels, but they too failed to occupy Itu Aba or Woody Islands
following the departure of the Chinese Nationalist troops.121
Chinese scholars maintain that the intensity of the Chinese Civil War during the late
1940s and the harsh conditions prevalent in the South China Sea islands prevented China from
“pursuing a more active program for the development and administration of the South China
Sea Islands.”122 These scholars argue that Taiwan’s withdrawal from the region should not be
viewed as an abandonment of China’s sovereignty over the South China Sea islands for several
reasons. First, even if Taiwanese authorities had “intended to ‘abandon’ the South China Sea
islands, they could have done so only on behalf of their own political forces, not on behalf of
China as a country, for the new Government in Beijing had replaced the Nationalists as the sole
legitimate Government of China.”123 Second, Taiwan’s withdrawal “was in fact based solely on
military and political considerations”—fear of a Chinese Communist invasion of the islands—
and that Taiwan “had no intention of abandoning the islands on behalf of China.”124
executive summary of the joint Vietnam/Malaysia submission to the Commission on the Limits of the Continental
Shelf is available at
http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/mysvnm_clcs33_2009e.pdf. Copies of
China’s protests to the Vietnamese and the Malaysian submissions are available at
http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/chn_2009re_mys_vnm_e.pdf and
http://www.un.org/Depts/los/clcs_new/submissions_files/vnm37_09/chn_2009re_vnm.pdf.
117
Shen I, at p. 45.
118
Id.
119
Note Verbale, Permanent Mission of the People’s Republic of China, CML/17/2009 and CML/18/2009, May 7,
2009, available at http://www.un.org/depts/los/clcs_new/commission_submissions.htm.
120
Martin H. Katchen, The Spratly Islands and the Law of the Sea: “Dangerous Ground” for Asian Peace, ASIAN
SURVEY, Vol. 17, No. 12 (Dec. 1977), pp. 1167‐1181, at p. 1178; M. Bennett, note 14 supra, at p. 438; M. Chemillier‐
Gendreau, note 15 supra, at p. 116.
121
122
Shen I, at p. 45.
123
Id., at p. 46.
124
Id.
18
Taiwanese forces returned to Itu Aba in 1956, after Tomas Cloma125 claimed a portion of
the Spratly Islands, and have maintained a presence on the island ever since—“the longest
continuous occupation of any of the Spratlys since the dispute over the islands began.”126 PRC
forces occupied Woody Island around the same time.127 Taiwan also purportedly continued to
periodically inspect and survey the Spratly archipelago during this period. In October 1963, for
example, the Ministry of National Defense, the Ministry of Internal Affairs, and the Naval
General Headquarters conducted a joint inspection of Itu Aba Island, Spratly Island, Amboyna
Cay, Thitu Island, Southwest Cay, Northeast Cay, West York Island, Loaita Island, Sandy Cay, and
Namyit Island.128 Three years later, a naval contingent deployed to Southwest Cay, Northeast
Cay, Thitu Island, and Namyit Island to “re‐erect Chinese national boundary tablets.”129
Notwithstanding continued opposition to its claims, the Chinese government subsequently
incorporated the Spratlys into Guangdong Province and Hainan Province. According to the MFA,
China has continued to take effective actions to maintain its sovereignty over the islands.
c. Persistent Objector
Chinese scholars additionally point to China’s persistent and resolute objections to all
foreign claims to the South China Sea islands as evidence of Beijing’s effective administration of
the two island groups.130 The first case cited by China is an 1883 incident involving a German
survey vessel. After learning that Germans were conducting surveys in the Spratlys and Paracels
without China’s consent, the Qing government “lodged strong protests” with Berlin and the
Germans terminated the survey.131
Chinese scholars claim that China similarly protested French efforts to occupy the
Paracel and Spratly Islands in the 1930s. Following France’s attempt to occupy the Paracels in
December 1931, China lodged a diplomatic protest with the French Foreign Ministry on July 27,
1932, denying France’s claims to the archipelago.132 Two months later, on September 29th,
China delivered a diplomatic note to the French government citing the 1887 Sino‐French Treaty,
highlighting long‐time use of the islets by Chinese fishermen and indicating:
125
Tomas Cloma was a Filipino lawyer and businessman who conducted a private expedition to the South China
Sea and claimed a number of islands in his own name as “Freedomland.” Id., at p. 1179. See also M. Bennett, note
14 supra, at p. 438.
126
B. Murphy, note 29 supra, at p. 193; see also M. Katchen, note 120 supra, at pp. 1179‐1180; S. Tønnesson, note
55 supra, at p. 11.
127
S. Tønnesson, note 55 supra, at p. 14 and note 28 (“On 21 February 1956, the French warship Francis Garnier
went near Woody Island and spotted the presence of ‘elements’ hosting the PRC flag, around thirty people, four
engines, three barracks under construction and…a small ship with the PRC flag.”).
128
H. Chiu and C. Park, note 42 supra, at p. 16.
129
Id.
130
Shen II, at pp. 134 and 140‐152. It is important to note, however, that neither the MFA nor Chinese scholars cite
any reference to Chinese protests of Vietnamese economic exploitation of the Paracels and Spratlys in the 17th,
18th, and 19th centuries. Such an omission clearly undercuts China’s argument that it was a persistent objector.
131
Shen II, at p. 140; see also Su Hao, note 28 supra; Shen I, at p. 35; H. Chiu and C. Park, note 42 supra, at p. 11.
132
French claims were purportedly “based on the alleged 1816 occupation of the…[Paracels] by the emperor of
Vietnam and his alleged construction of temples and monuments there in 1835.” Shen I, at p. 40. See also Tao
Cheng, note 31 supra, at p. 268; H. Chiu and C. Park, note 42 supra, at p. 12.
19
…that the Guangdong Provincial Government of China had granted applications to
Chinese nationals to develop and exploit natural resources in the Xisha Islands, that
China had long exercised sovereignty over these islands, that the Chinese Government
was skeptical about the alleged Vietnamese activities in the Xisha Islands in 1816 and
1835, and that the Chinese Government would require the French to provide
confirmation of the locations of the alleged Vietnamese‐built monuments and
temples.133
French efforts to resolve the matter diplomatically failed.134 A subsequent Chinese diplomatic
exchange claimed that it would have been impossible for Vietnam to annex the Paracels in 1816
because, at the time, Vietnam was a Chinese vassal state:
…Based on our research and investigation, in 1816, An’nam was subject to China.
Whether in terms of might or in terms of reason, it was impossible for An’nam to invade
China’s territory. What’s more, in the history and books of China, there is no recordation
whatsoever that the Xisha Islands were once occupied by [China’s] vassal State An’nam.
The records of the Vietnamese history must have been inconsistent with the facts. …135
China likewise protested France’s subsequent occupation of the Paracel Islands on July
3, 1938. According to Chinese scholars, China’s ambassador in Paris, William Koo, delivered a
diplomatic note (dated July 18, 1938) to the French government objecting to the French
invasion of the islands.136
China repeated its objections after France renewed its claims to the South China Sea
islands at the conclusion of the Second World War. On January 19, 1947, the Chinese Embassy
in Paris “issued a public notice stating that the Xisha [Paracel] Islands are Chinese territory”
after France reasserted its claims to the archipelago and landed troops on Pattle Island.137 Two
days later, the Ministry of Foreign Affairs “delivered a diplomatic note to the French Embassy in
Nanjing to reject the French claims, stating that the Xisha Islands belong to China.”138 A week
later, on January 28, the Foreign Ministry “delivered another diplomatic note to the French
Embassy…” protesting France’s occupation of Pattle (Shanhu) Island in the Paracels.139 Talks
aimed at resolving the dispute were held in Paris between February 25 and July 4, 1947;
133
Shen I, at p. 40; H. Chiu and C. Park, note 42 supra, at p. 12; M. Bennett, note 14 supra, at p. 437; Todd C. Kelly,
Vietnamese Claims to the Truong Sa Archipelago [Ed. Spratly Islands], EXPLORATIONS IN SOUTHEAST ASIAN STUDIES, Vol. 3
(Fall 1999), University of Hawaii Manoa, available at http://www.hawaii.edu/cseas/pubs/explore/todd.html.
134
T. Kelly, note 133 supra.
135
Shen I, at pp. 41 and 58. France purportedly did not respond to this note for more than a year. H. Chiu and C.
Park, note 42 supra, at p. 12. See also M. Chemillier‐Gendreau, note 15 supra, Annex 10 (Note of 29 September
1932 from the Legation of the Chinese Republic in France to the Ministry of Foreign Affairs, Paris) (“…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.”).
136
Shen I, at p. 43.
137
Shen II, at p. 145; see also Shen I, at p. 45; Tao Cheng, note 31 supra, at pp. 269‐270, 276; M. Chemillier‐
138
Id.
139
Id.
20
however, China rejected France’s suggestion that the issue be resolved by an arbitral
tribunal.140
The MFA claims that China also protested France’s occupation of nine of the Spratly
Islands in 1933.141 According to Chinese scholars, China’s protests were widely reported in the
Chinese media. On July 26, 1933, Shen Bao reported that the Chinese Foreign Ministry had
protested France’s formal occupation of the Spratly Islands:
The…[Spratly] islands…have been inhabited by Chinese fishermen only, and have been
recognized by the international community as China’s territories. We are shocked to
have received the official French journal announcing France’s formal occupation. …The
Foreign Ministry…will put forward serious protests over the French actions.142
A week later, on the 2nd of August, the newspaper reported that a similar protest was filed by
the Guangdong provincial government:
The Southwest Commissioner is seriously concerned with the incidents of France

occupying the…[Spratly] islands, and will do everything he can to preserve China’s
sovereignty over these island groups. …the Yue [Guangdong] Provincial
Government…has already lodged protests to the French authorities. …143
Two days later the Chinese government delivered a diplomatic note to French
authorities reserving its position on China’s rights to the Spratlys pending an investigation of
the French actions:
The Chinese Government is very much concerned with…[the French‐declared

occupation of and sovereignty over nine islands in the South China Sea]. She hereby
requests…the Minister of the French Legation to inquire into and ascertain the name,
the exact location and the longitude and latitude of each island and report the same to
the Chinese Government. Pending such investigation…, the Chinese Government
reserves her titles vis‐à‐vis the…declaration of the French Government.144
After confirming that the islands in question were in fact part of the Spratlys, the Chinese
Ambassador to France—Wellington Koo (Gu Weijun)—protested France’s occupation, “stating
that those islands and the entire Spratly Islands (Nansha Islands) were the territory of the
140
M. Chemillier‐Gendreau, note 15 supra, at p. 40 and Annex 35 (Telegram from Ministry of Foreign Affairs,
Nanking, 8 March 1947).
141
The nine features occupied by France were: Amboyna Cay, Spratly Island, Itu Aba Island, Loaita Island, Thitu
Island, Northeast Cay, Southwest Cay, Namyit Island, and West York Island.
142
Shen II, at p. 143; see also H. Chiu and C. Park, note 42 supra, at p. 18; B. Murphy, note 29 supra, at pp. 191,
203.
143
144
Id., at p. 144; see also Shen I, at p. 41.
21
Republic of China.”145 The MFA additionally argues that “it is a basic norm of international law
that invasion does not entail sovereignty.”146
The MFA claims that, since 1949, the PRC has maintained its position as a persistent
objector, challenging “each and every foreign claim to and invasion of…the South China Sea
Islands….”147 For example, in April 1956, after South Vietnamese troops relieved the French
forces on Pattle Island in the Paracels, China responded by deploying troops to the eastern part
of the archipelago (Amphitrites Group).148 Then in May 1956, the Chinese government
protested the Philippine claim to seven of the Spratly Islands, reiterating that these “…islands
have always been a part of Chinese territory” and that China “…has indisputable, legitimate
sovereignty over these islands.”149 Later that month, on May 29th, the Chinese Foreign Ministry
issued a Declaration of Sovereignty over the Nansha (Spratly) Islands, emphasizing that “China's
legitimate sovereignty over the Nansha Islands shall under no circumstances be violated by any
country on any ground or by any means.”150 Without going into detail, the MFA claims that
145
Shen II, at p. 144; see also Shen I, at p. 42; H. Chiu and C. Park, note 42 supra, at p. 13.
146
Chinese Foreign Ministry’s Memorandum on Question of Xisha and Nansha Islands, XINHUA GEN. OVERSEAS NEWS
SERV., May 12, 1988, quoted in M. Bennett, note 14 supra, at notes 15 and 93.
147
148
149
Shen I, at p. 66; see also Jeanette Greenfield, China and the Law of the Sea, in THE LAW OF THE SEA IN THE ASEAN
PACIFIC REGION 22 (James Crawford & Donald R. Rothwell eds., Martinus Nijhoff Publishers 1994), at p. 33; Xu
Zhiliang, Li Lixin, Fan Hong, and Zhou Xin, note 104 supra; H. Chiu and C. Park, note 42 supra, at p. 135; B. Murphy,
note 29 supra, at p. 193.
150
Similar protests were made in January and February 1974 against South Vietnam’s claims to Taiping (Itu Aba)
Island, Nanwei (Spratly) Island, and other islands in the Spratlys: “The Nansha Islands, Xisha Islands, Zhongsha
Islands and Dongsha Islands, are all part of Chinese territory. The People's Republic of China has indisputable
sovereignty over these islands and their surrounding sea area.” Shen I, at pp. 66‐67. In April 1984, China protested
Vietnam’s “illegal occupation” of some of the Spratly Islands and “requested the Vietnamese to withdraw from all
islands which it had occupied illegally.” Id., at p. 69. Similarly, in November 1982 and May 1995, China protested
Malaysia’s occupation of Swallow Reef (Danwan Jiao). Id., at pp. 69, 71. See also M. Bennett, note 14 supra, at p.
439; M. Chemillier‐Gendreau, note 15 supra, at p. 43. Other examples of claimed Chinese administrative control
over the South China Sea islands include:
− In 1958, the Hainan Special Administrative Prefecture established an “Administrative Bureau of the Xisha,
Nansha and Zhongsha Islands” with its headquarters stationed on the island of Yongxing, one of the Xisha
Islands, the largest island in the South China Sea.
− In February and April 1959, China protested South Vietnam’s maltreatment of Chinese fishermen in the
vicinity of Chenhang (Duncan) Island and Jinqing (Drummond) Island, reiterating that “the Xisha Islands
are China's territory.”
− In March 1969, the Administrative Bureau of the Zhongsha, Xisha and Nansha Islands was renamed “The
Revolutionary Committee of the Xisha, Zhongsha and Nansha Islands of Guangdong Province.” At the
same time, a People's Armed Forces Department and a local Public Security Station were set up on
Yongxing Island.
− In 1979, “The Revolutionary Committee of the Xisha, Zhongsha and Nansha Islands of Guangdong
Province" was renamed “The Committee of Guangdong Province on the Affairs of the Xisha, Nansha and
Zhongsha Islands,” placing these islands under the direct jurisdiction of Guangdong Province.
− In April 1988, upon the establishment of Hainan Province, the administrative organ for the South China
Sea islands was renamed “The Committee of Hainan Province on the Affairs of the Xisha, Nansha and
Zhongsha Islands,” transferring the jurisdiction over these islands from Guangdong Province to Hainan
Province.
22
China has continued to assert indisputable sovereignty over the two archipelagoes into the 21st
century.
d. Reaffirming Sovereignty
Following the Republic of Vietnam’s occupation of Spratly Island in 1956 and Robert,
Pattle, and Money Islands in the Paracel archipelago in 1957, China reaffirmed its claim of
sovereignty over all of the South China Sea islands when it declared a 12‐nautical mile territorial
sea in 1958.151 Similar assertions were made in Article 2 of the 1992 territorial sea law,152 in
China’s declaration upon ratifying UNCLOS in 1996,153 in Article 2 of the 1996 straight baseline
law,154 and in the 2009 Law of the People’s Republic of China on Island Protection.155
China additionally reaffirmed its sovereignty over all of the South China Sea islands and
their adjacent waters and continental shelves in a demarche filed with the United Nations in
2009. The demarche protested the enactment of Republic Act 9522, which defines the new
Philippine archipelagic baselines and re‐asserts Filipino sovereignty over the Kalayaan Island
Group (KIG) and Scarborough Shoal (Huangyan Island) in the South China Sea.156 Specifically,
Beijing asserted that the new Philippine law “illegally claims Huangyan Island…and some islands
and reefs of Nansha Islands…of China as areas over which the Philippines…exercises sovereignty
and jurisdiction.”157 Beijing then reiterated that “Huangyan Island and Nansha [Spratly] Islands
− In August 1988, an Oceanic Meteorological Observation Station was set up on the Yongshu Reef in the
Nansha Islands.
Shen I, at pp. 47‐48, 65‐71.
151
The Government of the People's Republic of China declares:
1. The breadth of the territorial sea of the People's Republic of China shall be twelve nautical miles. This
provision applies to all territories of the People's Republic of China including the Chinese mainland and its
coastal islands, as well as Taiwan and its surrounding islands, the Penghu Islands, the Dongsha Islands, the
Xisha Islands, the Zhongsha Islands, the Nansha Islands and all other islands belonging to China which are
separated from the mainland and its coastal islands by the high seas.
Declaration of the Government of the People’s Republic of China on China’s Territorial Sea (Sept. 4, 1958), reprinted
in U.S. DEPT. OF STATE LIMITS IN THE SEA NO. 43, Straight Baselines: People’s Republic of China, July 1, 1972. The
Republic of Vietnam allegedly did not protest the declaration. H. Chiu and C. Park, note 42 supra, at p. 15. Other
examples of Chinese protests of foreign incursions into the Paracel and Spratly Islands include the arrest of 82
Chinese fishermen on Duncan Island in the Paracels by the Republic of Vietnam Navy in 1959 and U.S.
reconnaissance activities in the territorial sea and airspace of the Paracels between 1960 and 1971. Id., at p. 15‐16.
152
Law of the Territorial Sea and the Contiguous Zone of 25 Feb. 1992.
153
Declaration of the People’s Republic of China upon ratifying UNCLOS, Jun. 7, 1996, available at
http://www.un.org/depts/los/convention_agreements/convention_declarations.htm#China Upon ratification.
China’s declaration is consistent with its position on the disputed islands during the negotiations of UNCLOS. On
July 2, 1974, the head of the Chinese delegation (Cai Shupan) stated: “The Xisha Islands and Nansha Islands in the
South China Sea have always been an inalienable part of Chinese territory. The Chinese government and the
Chinese people shall under no circumstances allow the Saigon Authorities to violate China's territorial
sovereignty.” Shen I, at p. 67.
154
Statement of the Chinese Government on the Baseline of the Territorial Sea of the People’s Republic of China,
May 15, 1996, available at http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/STATEFILES/CHN.htm.
155
Law of the People’s Republic of China on Island Protection, Dec. 26, 2009, available at
http://www.procedurallaw.cn/english/law/201001/t20100110_300174.html.
156
REPUBLIC ACT NO. 9522, Mar. 10, 2009, An Act to Amend Certain Provisions of Republic Act No. 3046, as Amended
by Republic Act No. 5446, to Define the Archipelagic Baselines of the Philippines and for Other Purposes.
157
The Permanent Mission of the People’s Republic of China to the UN, Note CML/12/2009, 13 April 2009.
23
have been part of the territory of China since ancient time” and that China has “indisputable
sovereignty” over the islands.158
Reference to the China’s South China Sea claims also appears in a 2009 protest to the
United Nations regarding Vietnam’s and Malaysia’s submissions to the Commission on the
Limits of the Continental Shelf (CLCS) claiming extended continental shelves in the South China
Sea.159 In both of these demarches, Beijing re‐affirms that it has “indisputable sovereignty over
the islands in the South China Sea and the adjacent waters, and enjoys sovereign rights and
jurisdiction over the relevant waters as well as the seabed and subsoil thereof [as depicted on
the U‐shaped map].”160
In June 2012, Beijing established a new prefecture‐level city—Sansha City (the “city of
three sands”) to administer the Paracels (Xisha), Macclesfield Bank (Zhongsha), and the Spratlys
(Nansha). The seat of government for the new city is on Woody Island (Yongxing) in the
Paracels.161 Then, on November 29, 2013, the 5th Meeting of the Standing Committee of the 5th
Hainan People’s Congress adopted the Hainan Province’s Measures to Implement the Fisheries
Law of the PRC.162 These new regulation, which took effect on January 1, 2014, require foreign
fishing vessels to obtain prior approval from Chinese authorities to operate in the sea area
administered by Hainan Province—an area that includes over 2 million square kilometers of
ocean space in the South China Sea (i.e., the waters contained within China’s “nine‐dash
line”).163 Ships that fail to comply with the new regulations will be forced out of the area, will
have their catch and equipment confiscated, and can be fined up to ¥500,000 (about $82,000);
in more serious cases, the vessel may also be confiscated.164
e. Military Intervention
When deemed necessary and strategically opportune, China has also used military force
to advance its sovereignty claims in the South China Sea. On January 20, 1974, Chinese forces
expelled the South Vietnamese garrison from Pattle Island after a brief naval and land
158
Id.
159
The executive summary of Vietnam’s submission to the Commission on the Limits of the Continental Shelf is
available at http://www.un.org/Depts/los/clcs_new/submissions_files/vnm37_09/vnm_clcs37_2009e.pdf; The
executive summary of the joint Vietnam/Malaysia submission to the Commission on the Limits of the Continental
Shelf is available at
http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/mysvnm_clcs33_2009e.pdf.
160
Copies of China’s protests to the Vietnamese and Malaysian submissions are available at
http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/chn_2009re_mys_vnm_e.pdf and
http://www.un.org/Depts/los/clcs_new/submissions_files/vnm37_09/chn_2009re_vnm.pdf.
161
Pia Lee‐Brago, China Tightening Grip on Spratlys, THE PHILIPPINE STAR, June 23, 2012.
162
Xinhua Wang, PRC Approves Measures Requiring Approval of Foreign Fishing in Hainan‐Administered Waters,
December 1, 2013, cited in CRAIG MURRAY & KIMBERLY HSU, U.S.‐CHINA ECONOMIC AND SECURITY REVIEW COMMISSION STAFF
REPORT, CHINA’S NEW FISHING REGULATIONS SEEK TO JUSTIFY AND CONSOLIDATE CONTROL IN THE SOUTH CHINA SEA 1 n.1 (Jan. 27,
2014).
163
Fisheries Law of the People’s Republic of China (2004 Amendment) (promulgated by the Standing Comm. Nat’l
People’s Cong. by Order No. 34 of theh President of the People’s Republic of China, Jan. 20, 1986; Amended for the
second time by the Standing Comm. Nat’l People’s Cong., Aug. 28, 2004), art. 35, available at
http://www.lawinfochina.com/display.aspx?id=3663&lib=law.
164
Id., art. 46.
24
engagement.165 A second clash between Chinese and Vietnamese naval forces occurred on
March 14, 1988, in the vicinity of Johnson South Reef.166 The skirmish resulted in the sinking of
several Vietnamese ships and the death of over 70 Vietnamese sailors.167 Following the
engagement, China occupied a number of key islets in the Spratly archipelago—Cuarteron Reef
(Huayang Reef), Eastern Gate Shoal (Dongmen Reef), Fiery Cross Reef (Yongshu Reef), Gaven
Reefs (Nanxun Reef and Xinan Reef), Johnson South Reef (Chigua Reef), and Subi Reef (Zhubi
Reef).168
In 1995, China occupied Mischief Reef (Meiji Reef), which is claimed by Vietnam and the
Philippines, and constructed a series of structures, purportedly to provide shelter for Chinese
fishermen.169 China has continued to build up the reef since the mid 1990s, including the
installation of military radars and other monitoring equipment. Photographs taken in June
2012 reveal several new structures on the reef, including “a windmill, solar panels, a concrete
platform suitable for use as a helipad and a basketball court.”170 There is also evidence that
China is improving its facilities at Johnson South Reef. Intelligence photographs released by the
Philippines in May 2014 show “different stages of reclamation work being done by the Chinese
on…[the] reef, apparently in preparation for the construction of an airstrip.”171
4. International Recognition
The MFA and Chinese scholars cite a number of events, beginning in the 19th century, to
support China’s position that the international community recognizes its sovereignty claims to
the South China Sea islands. China additionally relies on a number of World War II and post‐war
documents, statements, and publications to substantiate its position that it has indisputable
sovereignty over the two island groups.
a. The Sino‐French Treaty of 1887

Chinese scholars argue that France relinquished any claims it might have had to the
Paracel and Spratly Islands when it signed the Sino‐French Treaty of 1887, which delimited the
border between China and Tonkin (northern Vietnam).172 The demarcation commission
established by the 1885 Sino‐French Treaty of Peace, which was responsible for delineating the
frontier between China and Tonkin, was unable to agree on all points along the line of
demarcation. Accordingly, pursuant to Article 3 of the Treaty, the matter was referred back to
the respective governments—France and China—to resolve the differences.
165
166
Id., at p. 149; see also B. Murphy, note 29 supra, at pp. 195 and 202; M. Bennett, note 14 supra, at p. 440;
Christopher C. Joyner, The Spratly Islands Dispute in the South China Sea: Problems, Policies, and Prospects for
Diplomatic Accommodation, at pp. 71‐72, available at http://www.southchinasea.org/online‐publications/32‐2/; S.
Tønnesson, note 55 supra, at p. 18; T. Kelly, note 133 supra.
167
168
Id.; see also T. Kelly, note 133 supra.
169
China Expanding Mischief Structures, THE PHILIPPINE STAR, Sept. 3, 2012.
170
Id.; see also C. Joyner, note 166 supra, at p. 73.
171
Pia Lee‐Brago,Photos reveal stages of China reclamation at reef , THE PHILIPPINE STAR, May 16, 2014, available at
http://www.philstar.com/headlines/2014/05/16/1323659/photos‐reveal‐stages‐china‐reclamation‐reef.
172
Convention Concerning the Delimitation of the Border between China and Tonkin, signed at Beijing, June 26,
1887, available at http://www.chinaforeignrelations.net/node/167.
25
To that end, paragraph 2 of the 1887 Treaty (French text) provides, in part, that
...The isles which are to the east of the meridian of 105° 43' longitude east of Paris [i.e.,
the meridian of 108°03'08" east of the Greenwich meridian], which is to say of the
north‐south line passing through the eastern point of the island of Tch’a‐Kou or Quan‐
chan (Tra‐co) [Chagu] and forming the border, are similarly assigned to China. The Go‐
tho [Jiutou] islands and other islands which are to the west of this meridian belong to
Annam. …173
The translation of the Chinese text is somewhat different, providing, in part, that
As far as the islands in the sea are concerned, the red line drawn by the officials of the
two countries responsible for delineating the boundary shall be extended southward
from the eastern hill‐top of Chagushe [or Wangzhu…] and constitutes the dividing line.
The islands lying east of this line shall belong to China. The islands of Jiutousan [Gotho…]
and other small islands west of this line shall belong to Vietnam.174
Based on the Treaty, Chinese officials and scholars argue that all of the South China Sea
islands lie east of 108°03'08" east longitude and that France, therefore, ceded the islands to
China. Accordingly, they argue that Vietnam may not claim sovereignty over the islands as the
successor state to France.175
b. French Recognition before World War II

According to some Chinese scholars, France recognized China’s sovereignty over the
Paracels in 1921. On May 21st of that year, French Prime Minister Aristide Briand purportedly
stated that “since the Chinese Government has established her sovereignty since 1909, it is
impossible for us now to lay a claim on these islands.”176 These scholars cite the Chinese Journal
of Diplomatic Review (No. 4, 1934) to support their position. China claims that the French
Governor‐General of Indochina also acknowledged that the Paracels belonged to China in the
1920s and that a French navigator made a similar statement in the early 1930s, indicating that
Annam (Vietnam) did not have any relationship with the Paracels.177
Additionally, Captain Rémy, the Commander of the Navy in Saigon, disclaimed French
sovereignty over the Paracels in 1920. On September 20, 1920, the Japanese shipping company
Mitsui Bussan Kaisha sent a letter to Captain Rémy indicating that it had discovered a
phosphate deposit on the islands that it intended to exploit and asking whether the Paracels
were French possessions. Captain Rémy responded on September 24th indicating that
173
Id.
174
Zou Keyuan, Maritime Boundary Delimitation in the Gulf of Tonkin, 30 OCEAN DEV. & INT’L LAW 235‐254 (1999), at
p. 238.
175
Id., at p. 240; see also Shen I, supra, at p. 35; Tao Cheng, note 31 supra, at p. 275; H. Chiu and C. Park, note 42
supra, at pp. 18‐19; B. Dubner, note 29 supra, at p. 309; M. Bennett, note 14 supra, at pp. 446‐447; M. Chemillier‐
Gendreau, note 15 supra, at p. 83, Annex 10 (Note of 29 September 1932 from the Legation of the Chinese Republic
in France to the Ministry of Foreign Affairs, Paris).
176
Shen I, at p. 40.
177
26
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.178
Three months later, an article reporting on the exchange between Captain Rémy and
the Japanese company appeared in the January 2, 1921, edition of the Paris newspaper
L'Europe Nouvelle:
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?179
China points out that French ownership of the Paracels had been the subject of
discussion between Paris and colonial authorities in Indochina earlier in the century. In 1909,
the French Consul in Canton (Guangzhou)—Jean‐Joseph Beauvais—wrote a letter to the
Minister of Foreign Affairs in Paris to discuss possible French claims to the Paracels. Although
Beauvais indicated that France may have a valid claim to the islands, he warned that claiming
sovereignty over the Paracels may not be in best interests of France because it could fuel
Chinese nationalism, which could be “more damaging to us than the possession of the Paracel
Islands would be useful.”180
China additionally asserts that, by 1921, some French officials were suggesting that
France abandon its claims to the islands in exchange for other French interests in China. On
March 30, 1921, the Governor of Kwangtung announced (Order No. 831 dated March 30, 1921,
and published in the Official Gazette of Kwantung (No. 2619 of April 2, 1921)) that the “military
Government of the south had decided to incorporate the Paracels into the sub‐prefecture of Yai
Hien, Hainan Island.”181 Two weeks later, the Minister for the Colonies sent a letter to the
President du Conseil, Minister for Foreign Affairs, suggesting that “[i]t 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.”182 Several weeks later, an official from the Directorate for
Political and Indigenous Affairs indicated in a note dated May 6, 1921, that a French concession
178
M. Chemillier‐Gendreau, note 15 supra, at p. 105, Annex 12 (Note dated 6 May 1921, from Directorate for
Political and Indigenous Affairs, Government General of Indochina, Hanoi).
179
Id., at p. 106, Annex 12 (Note dated 6 May 1921, from the Directorate for Political and Indigenous Affairs,
Government General of Indochina, Hanoi).
180
Id.; see also S. Tønnesson, note 55 supra, at p.7.
181
M. Chemillier‐Gendreau, note 15 supra, at Annex 12 (Note dated 6 May 1921, from Directorate for Political and
Indigenous Affairs, Government General of Indochina, Hanoi).
182
Id., at Annex 16 (Note of 18 April 1921 from the Minister for the Colonies to the President du Conseil, Minister
for Foreign Affairs).
27
on the Paracels could “…make it easier to settle the matter of compensation for the Tunnam
railway” and that “in such a situation, the abandonment by France of all rights to ownership of
the Paracels might seem like the compensation demanded” by the Chinese.183
Despite France’s continued interests in the Paracels, the Kwangtung Provisional Council
adopted a resolution to mine guano deposits in the Paracels on February 14, 1930. Two months
later, Chinese officials and scholars assert that France implicitly recognized Chinese sovereignty
over the Paracels at the 1930 Hong Kong Far Eastern Meteorological Conference. A resolution
adopted during the conference provided that
The Conference recognizes the great importance to the Meteorology of the China Seas
of the Meteorological Station established at Pratas by the Government of China. It
expresses the hope and voices the desire that similar stations be established in zones
not yet represented, especially on the Macclesfield Bank and the Paracels.184
There is no evidence that the French‐Indochina representative who attended the conference,
Monsieur Bruzon, objected to the proposal. Accordingly, China argues that this request “proves
that not only are the Paracel Islands internationally recognized as belonging to China, but that
the French themselves share this view.”185 The following year, China announced that it was
inviting bids from foreign companies to exploit the phosphate deposits in the Paracels and, in
early 1932, publicly called for bids.186
c. French Recognition after World War II

Some Chinese and foreign scholars maintain that France tacitly acknowledged Chinese
sovereignty over the South China Sea islands after World War II. Pursuant to General Order No.
1, Japanese forces in Vietnam north of 16° north latitude were instructed to surrender to
Chinese Nationalist forces. The northern part of Vietnam was subsequently placed under
Chinese occupation until March 1946, when Nationalist forces returned the occupied portion of
Vietnam to France. Pursuant to an exchange of notes, China and France agreed that French
forces would relieve Chinese troops stationed in Indochina north of the 16th degree of latitude
(which included the Paracel and Spratly Islands) no later than March 31, 1946.187 At the time,
France allegedly did not inquire into the status of the Paracels or Spratlys; nor did France or
Vietnam file a diplomatic protest when Nationalist forces remained on Woody Island and
returned to Itu Aba Island in 1946. Similarly, France did not object when the Republic of China
183
Id., at Annex 12 (Note dated 6 May 1921, from Directorate for Political and Indigenous Affairs, Government
General of Indochina, Hanoi).
184
Resolution 4, CONFERENCE OF DIRECTORS OF FAR EASTERN WEATHER SERVICES, HONG KONG, 1930, at p. 58, available at
http://www.hko.gov.hk/mwg‐internal/de5fs23hu73ds/progress?id=7sEupYOYvs. See also H. Chiu and C. Park, note
42 supra, at p. 12.
185
M. Chemillier‐Gendreau, note 15 supra, Annex 10 (Note of 29 September 1932 from the Legation of the Chinese
Republic in France to the Ministry of Foreign Affairs, Paris).
186
White Paper On the Hoang Sa (Paracel) & Truong Sa (Spratly) Islands, Republic of Vietnam, Ministry of Foreign
Affairs, Saigon (1974) [hereinafter MFA White Paper (1974)].
187
Exchange of Letters between China and France Relating to the Relief of Chinese Troops by French Troops in
North Indochina, Chungking, Feb. 28, 1946, U.N.T.S. Vol. 14, 1948, at p. 151. See also M. Chemillier‐Gendreau, note
15 supra, at p. 40.
28
renamed the South China Sea islands in 1947 “and included them in the 1952 ROC‐Japan
bilateral peace treaty.”188 Moreover, neither France nor Vietnam attempted to establish control
over the Spratlys during the absence of Taiwanese forces from 1950 to 1956. Accordingly, even
if France validly occupied the Spratlys in 1933, China maintains that France “relinquished its
sovereignty over them after 1945” and, as the successor state to French rights in Vietnam, the
Republic of Vietnam “clearly cannot invoke what was previously relinquished by its
predecessor.”189
d. Japanese Recognition
Chinese scholars argue that Japan also recognized China’s sovereignty over the Paracels
in 1938 by declaring that French claims to the archipelago were “unjustifiable…given the fact
that both France and the United Kingdom had previously recognized the Xisha [Paracel] Islands
as part of China’s Hainan Administrative Prefecture.”190 Japan also protested France’s
occupation of the Spratlys in 1933.
Some scholars additionally maintain that Japan intended to return the two
archipelagoes to China at the end of World War II, citing the separate agreements formally
ending hostilities between the two Chinas and Japan—the 1952 Treaty of Peace between the
Republic of China and Japan and the 1972 Joint Communiqué of the Government of Japan and
the Government of the People’s Republic of China. Article 2 of the 1952 Peace Treaty provides
that
It is recognized that under Article 2 of the Treaty of Peace with Japan signed at the city
of San Francisco on 8 September 1951…, Japan has renounced all right, title, and claim
to Taiwan (Formosa) and Penghu (the Pescadores) as well as the Spratly Islands and
Paracel Islands.191
Chinese scholars argue that this provision, and a Japanese map published in 1952 and
endorsed by Foreign Minister Cats Okazaki, clearly reflects Japan’s intention to return the
Spratlys and Paracels to China under both the 1951 San Francisco Peace Treaty and 1952
Treaty. The Map of Southeast Asia of the Standard World Atlas—“the first Japanese official
world atlas after the 1951 San Francisco Peace Treaty”—clearly indicates that the Paracel and
Spratly Islands were part of China.192
The 1972 Joint Communiqué reaffirms the terms of the Potsdam Proclamation:
188
H. Chiu and C. Park, note 42 supra, at pp. 17‐19; see also B. Murphy, note 29 supra, at p. 204; M. Bennett, note
14 supra, at pp. 437.
189
Id.; see also C. Joyner, note 166 supra, at p. 61 (“The French…made no subsequent efforts to perfect title to the
Spratlys by occupation. Nor did the French act by returning after Japan’s departure following World War II, or by
acting after Japan formally relinquished all title and future claims to the islands at the San Francisco Conference of
1951. Consequently, France possessed no lawful title to the Spratly group to which Vietnam could succeed.”).
190
Shen II, at p. 138; see also Shen I, at p. 43.
191
Treaty of Peace between the Republic of China and Japan, Apr. 28, 1952, entered into force Aug. 5, 1952,
available at http://www.taiwandocuments.org/doc_all.htm.
192
Shen II, at pp. 139‐140; see also H. Chiu and C. Park, note 42 supra, at p. 14; B. Dubner, note 29 supra, at p. 310.
29
The Government of the People’s Republic of China reiterates that Taiwan is an
inalienable part of the territory of the People’s Republic of China. The Government of
Japan full understands and respects this stand of the Government of the People’s
Republic of China, and it firmly maintains its stand under Article 8 of the Potsdam
Proclamation.193
As discussed below, the Potsdam Proclamation states that “the terms of the Cairo Declaration
shall be carried out….”194 In turn, the Cairo Declaration provides that Manchuria, Formosa
(Taiwan), and the Pescadores (Penghu Islands) would be returned to China and that Japan
would also be expelled from “other territories” that it had acquired by violence, but it does not
indicate that these “other territories” would be returned to China.195
e. World War II Documents

Japan invaded and occupied the Paracels and Spratlys, ousting the French garrisons on
the islands at the beginning of World War II. In 1943, China, the United States and the United
Kingdom agreed in Cairo:
…Japan shall be stripped of all the islands in the Pacific which she has seized or occupied
since the beginning of the First World War in 1914, and that all the territories Japan has
stolen from the Chinese, such as Manchuria, Formosa [Taiwan], and the Pescadores
[Penghu], shall be restored to the Republic of China. Japan will also be expelled from all
other territories, which she has taken by violence and greed. …196
The MFA notes that “at that time, Japan put the Nansha [Spratly] Islands under the jurisdiction
of Taiwan” and that “the territories to be restored to China as identified in the Cairo
Declaration naturally included the Nansha Islands.”197 The MFA further asserts that the 1945
Potsdam Proclamation reinforces that all territories taken from China by Japan should be
restored.
f. Post‐War Occupation
According to the MFA, China rightfully recovered the South China Sea islands in 1946.
“An official map of the Nansha [Spratly] Islands was drawn and printed, the Nansha Islands
were renamed…, and the earliest book of the physical and geography of the Nansha Islands was
also compiled and printed.”198 Additionally, the Chinese government “went through a series of
193
Joint Communiqué of the Government of Japan and the Government of the People’s Republic of China, Sept. 29,
1972, available at http://www.taiwandocuments.org/japan01.htm.
194
Potsdam Proclamation, July 26, 1945, para. 8, available at http://www.taiwandocuments.org/doc_all.htm.
195
Cairo Declaration, Nov. 1943, released Dec. 1, 1943, available at
http://www.taiwandocuments.org/doc_all.htm.
196
Cairo Declaration, Nov. 1943, released Dec. 1, 1943, available at
197
198
30
legal procedures and announced to the whole world that China had resumed the exercise of
sovereignty over the Nansha Islands.”199
Chinese scholars likewise emphasize that China was the only country to dispatch naval
forces and government officials to the Paracel and Spratly Islands “to formally accept the
Japanese surrender and withdrawal in the South China Sea areas….”200 Accordingly, “it was only
logical and natural for China as the legitimate title‐holder to recover the South China Sea
Islands from Japan” at the end of the Second World War.201 In 1946, Nationalist naval forces
were deployed to Itu Aba to build radio and meteorological stations and patrol neighboring
islands and sea areas. Officials from the Ministry of Internal Affairs were also dispatched to
conduct surveys and “engage in other administrative functions with regard to major islands and
reefs of the Xisha and Nansha Islands.”202
g. San Francisco Peace Conference

The MFA additionally claims that Chinese sovereignty over the South China Sea islands
was recognized during the drafting of the 1951 Treaty of Peace with Japan, citing a statement
by the Head of the Delegation of the Soviet Union, Andrei Gromyko. In that statement, Deputy
Minister Gromyko criticized the American‐British draft of the treaty, indicating, in part, that
it is an indisputable fact original Chinese territories which were severed from…[China],

such as Taiwan (Formosa), the Pescadores [Penghu Islands], the Paracel Islands and
other Chinese territories, should be returned to the Chinese People’s Republic. …The
draft contains only a reference to the renunciation by Japan of its rights to these
territories but intentionally omits any mention of the further fate of these territories.203
199
Id.
200
Shen II, at p. 138. See also Shen I, at pp. 44‐45 (“Japanese forces withdrew from the Xisha and Nansha Islands
on August 26, 1945. From October through November 1946, the…Republic of China formally retook the Xisha,
Nansha and other islands in the South China Sea, thus…reiterating China’s territorial sovereignty.”); Tao Cheng,
note 31 supra, at pp. 269, 275 (“At the end of the Pacific War in 1946, the Japanese forces in both groups of islands
formally surrendered to the representatives of China.”); M. Katchen, note 120 supra, at p. 1178.
201
Shen II, at p. 138.
202
Shen I, at pp. 44‐45. See also H. Chiu and C. Park, note 42 supra, at pp. 13‐14 (“In November 1946, the ROC
government sent a naval contingent, with officials from the Ministry of Internal Affairs…, to take over the islets.
…Garrison forces were subsequently stationed on several islets…and…Chinese territorial stone tablets were
erected on…Woody and…Itu Aba. A weather station and a radio station were also built on these two islets.”); M.
Katchen, note 120 supra, at p. 1178 (“…after the Japanese surrender, …the Republic of China sent a naval
contingent with officials from the Ministry of Internal Affairs and the Kwangtung Provincial government to take
over the islands.”); M. Bennett, note 14 supra, at pp. 437‐438 (“In November 1946, the Chinese…government sent
a naval contingent to retake the islands. During the following three years, the Guomindang government tried to
develop the chain as its southernmost territory. It garrisoned troops on Taiping Island. The navy built a small
weather station. Officials also made a comprehensive survey of the area, and in 1947, the Ministry of Internal
Affairs published new names for many of the islands in the chain.”); S. Tønnesson, note 55 supra, at p. 11 (“…the
Republic of China…sent naval expeditions both to the Paracels and the Spratlys in 1946‐47, set up sovereignty
markers, and established a permanent presence on Itu Aba and Woody Island….”).
203
Statement of the First Deputy Minister of Foreign Affairs of the USSR, A. A. Gromyko, at the San Francisco
Conference of 1951, Sept. 8, 1951; see also T. Kelly, note 133 supra; SOUTH CHINA SEA STUDIES (2012), at p. 3; Nguyen
Ba Dien, Vietnam Continuously Exercises Its Sovereignty Over Hoang Sa, Truong Sa Archipelagos, BienDong.Net,
Aug. 9, 2012, available at http://www.southchinasea.org/documents/studies/note 203; Historical documents on
31
Gromyko then demanded that the Conference vote on his proposed amendments to the Treaty,
which would have required Japan to, inter alia, renounce its rights to Taiwan, the Penghu
Islands, Macclesfield Bank, and the Spratly and Paracel Islands in favor of China.204
At the same time, China downplays the importance of Vietnam’s statement during the
seventh plenary session of the Conference, which reaffirmed Vietnamese rights to the South
China Sea islands. On September 7, 1951, the head of the Vietnamese delegation to the
Conference, Prime Minister Tran Van Huu, stated “…as we must frankly profit from all the
opportunities offered to us to stifle the germs of discord, we affirm our right to the Spratly and
Paracel Islands, which have always belonged to Vietnam.”205 None of the 51 nations
represented at the Conference objected to this statement.206 China correctly points out,
however, that neither the People’s Republic of China nor the Republic of China was invited to
participate in the San Francisco Peace Conference.207 Therefore, the two Chinas were not in a
position to object to the Vietnamese statement at the Conference.
Nonetheless, Chinese Premier Zhou En‐lai issued a lengthy statement criticizing the U.S.‐
UK draft on August 15, 1951. With regard to the South China Sea islands, in particular, Zhou
reiterated China’s claims, stating:
[The Paracel Islands and Spratly Islands] have always been China’s territory. …Although
they [had] been occupied by Japan for some time during the war of aggression…they
were all taken over by the then Chinese government following Japan’s surrender. …
Whether or not the U.S.‐British Draft Treaty contains provisions on this subject and no
Vietnam’s sovereignty over Paracel and Spratly Islands, June 24, 2011, available at
http://english.vietnamnet.vn/fms/special‐reports/; NATIONAL COMMITTEE OF BORDER AFFAIRS White Paper.
204
The Soviet amendment read as follows: “1. To Article 2.
(a) To include, instead of paragraphs (b) and (f), a paragraph reading follows: Japan recognizes full sovereignty of
the Chinese People's Republic over Manchuria, the Island of Taiwan (Formosa) with all the islands adjacent to it,
the Penlinletao Islands (the Pescadores), the Tunshatsuntao Islands (the Pratas Islands), as well as over the Islands
of Sishatsuntao and Chunshatsuntao (the Paracel Islands, the group of Amphitrites, the shoal of Maxfield) and
Nanshatsuntao Islands including the Spratly, and renounces all right, title and claim to the territories named here
in.” MFA White Paper (1974). See also Hong Thao Nguyen, Vietnam’s Position on the Sovereignty over the Paracels
& Spratlys: Its Maritime Claims, J. EAST ASIA INT’L L., V JEAIL (1) 2012, May 4, 2012, at p. 187; Nguyen Ba Dien, note
203 supra; Historical documents on Vietnam’s sovereignty over Paracel and Spratly Islands, note 203 supra;
NATIONAL COMMITTEE OF BORDER AFFAIRS White Paper; M. Chemillier‐Gendreau, note 15 supra, at pp. 41 and 121.
205
MFA White Paper (1974); see also H. Chiu and C. Park, note 42 supra, at p. 8; SOUTH CHINA SEA STUDIES (2012), at
p. 3; T. Kelly, note 133 supra; Nguyen Ba Dien, note 203 supra; H. Nguyen, note 204 supra, at p. 187; Historical
documents on Vietnam’s sovereignty over Paracel and Spratly Islands, note 203 supra; NATIONAL COMMITTEE OF
BORDER AFFAIRS White Paper; M. Chemillier‐Gendreau, note 15 supra, at p. 41.
206
H. Chiu and C. Park, note 42 supra, at pp. 8 and 14; see also B. Murphy, note 29 supra, at pp. 192‐193, 201; T.
Kelly, note 133 supra; SOUTH CHINA SEA STUDIES (2012), at p. 3; Nguyen Ba Dien, note 203 supra; H. Nguyen, note 204
supra, at p. 187; Historical documents on Vietnam’s sovereignty over Paracel and Spratly Islands, note 203 supra;
NATIONAL COMMITTEE OF BORDER AFFAIRS White Paper; M. Chemillier‐Gendreau, note 15 supra, at p. 41.
207
Chinese scholars point out that Japan’s renunciation of claims in the San Francisco Peace Treaty occur in “two
different ways in terms of their recipients…: (1) in the case of Korea and the League Mandate territory the
recipients are specifically mentioned; and (2) in the case of those territories acquired by Japan from Russia and
China the names of the recipients are left open. This was understandable in view of the cold‐war situation in which
the Treaty was made.” Tao Cheng, note 31 supra, at p. 276.
32
matter how these provisions are worked, the inviolate sovereignty of the People’s
Republic of China over Nanwei Islands [Spratly Islands] and Hsisha Islands [Paracel
Islands] will not be in any way affected.208
Chinese scholars additionally argue that, despite Vietnam’s statement at the Peace
Conference, the fact that the Peace Treaty fails to
identify [to] whom the South China Sea islands should be returned is itself a rejection of
Vietnam’s claims. …The Treaty’s silence on the post‐war status of the Xisha and Nansha
Islands should not be interpreted as having left the issue of ownership open. Rather, it
should be interpreted against recognizing any conflicting and ungrounded claims such as
those advanced by the Vietnamese.209
A similar argument has been advanced by China regarding France’s claims—as one of the major
powers at the Peace Conference, France “would not have allowed the…Treaty to fail to
specifically mention France as the recipient of the Paracels and Spratlys.”210
h. International Civil Aviation Organization (ICAO) Conference

The MFA also believes that action taken at the first ICAO Conference on Asia‐Pacific
Regional Aviation in October 1955 supports China’s sovereignty claims to the South China Sea
islands. The Conference was held in Manila and was attended by 15 nations, including South
Vietnam and Taiwan.211 According to the MFA, the conference determined that the Spratly,
Paracel, and Pratas Islands “were located at the communication hub of the Pacific and
therefore the meteorological reports of these islands were vital to world civil aviation
service.”212 Accordingly, the conference unanimously adopted Resolution No. 24, asking Taiwan
“to improve meteorological observation on the Spratly Islands four times a day.”213 According
to Chinese sources, none of the delegations present at the conference objected to the
resolution.214
208
Shen I, at p. 50; see also Shen II, at pp. 138, 145‐146; J. Greenfield, note 149 supra, at p. 30; Xu Zhiliang, Li Lixin,
Fan Hong, and Zhou Xin, note 104 supra; H. Chiu and C. Park, note 42 supra, at p. 14; B. Murphy, note 29 supra, at
p. 201; M. Katchen, note 120 supra, at p. 1179; M. Bennett, note 14 supra, at pp. 447‐448; H. Harry L. Roque, Jr.,
China’s Claim to the Spratly Islands under International Law, 15 J. ENERGY & NAT. RESOURCES L. 189, 1997, at p. 196;
M. Chemillier‐Gendreau, note 15 supra, at pp. 41, 122.
209
Shen I, at pp. 51, 58‐59.
210
Id., at p. 58; see also Tao Cheng, note 31 supra, at pp. 275‐276; B. Murphy, note 29 supra, at p. 192.
211
Other nations attending included: Australia, Canada, Chile, Dominica, France, Laos, Japan, New Zealand, the
Philippines, the Republic of Korea, Thailand, the United Kingdom, and the United States. MFA, The Issue of South
China Sea.
212
Id.
213
Id.; Taiwan similarly asserted its sovereignty over the Paracel and Spratly Islands at two sessions of the United
Nations Cartographic Conference for Asia and the Far East—Manila (1964) and Teheran (1970). H. Chiu and C. Park,
note 42 supra, at p. 16 and note 88.
214
33
i. North Vietnamese Indifference
China additionally relies on statements and activities by North Vietnamese officials
beginning in the mid 1950s to support its claim of sovereignty over the South China Sea islands.
According to the MFA, on June 15, 1956, North Vietnamese Deputy Minister of Foreign Affairs
Ung Van Khiem reportedly informed Mr. Li Zhi‐ming, Chargé d'Affaires ad Interim of the
Chinese Embassy in Vietnam, that “according to Vietnamese data, the Xisha and Nansha Islands
are historically part of Chinese territory.”215 Mr. Li Lu, Deputy Director of the Asia Division of
the Vietnamese Foreign Ministry, who was present at the meeting, added that “judging from
history, these islands were already part of China at the time of the Song Dynasty.”216
China also points to a 1958 letter from the North Vietnamese Prime Minister to China’s
Premier that ostensibly supports China’s claims to the Spratly and Paracel Islands. On
September 4, 1958, China issued a declaration extending the breadth of its territorial sea from
3 to 12 nautical miles (nm). The declaration provided, in part, that
1) The breadth of the territorial sea of the People's Republic of China shall be twelve
nautical miles. This provision applies to all territories of the People's Republic of China,
including the Chinese mainland and its coastal islands, as well as Taiwan and its
surrounding islands, the Penghu Islands and all other islands belonging to China which
are separated from the mainland and its coastal islands by the high seas.
***
4) The principles provided in paragraphs 2) and 3) likewise apply to Taiwan and its
surrounding islands, the Penghu Islands, the Dongsha Islands, and Xisha Islands, the
Zhongsha Islands, the Nansha Islands, and all other islands belonging to China.217
Ten days later, Prime Minister Pham Van Dong sent a letter to Premier Zhou En‐lai expressing
support for China’s territorial sea extension:
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. We would like to send our sincere regards.218
215
Shen I, at p. 53; see also T. Kelly, note 133 supra.
216
Shen I, at p. 54.
217
Declaration of the Government of the People’s Republic of China on China’s Territorial Sea (Sept. 4, 1958),
reprinted in U.S. DEPT. OF STATE LIMITS IN THE SEA NO. 43, Straight Baselines: People’s Republic of China, July 1, 1972.
218
Letter from Prime Minister Pham Van Dong to Premier Zhou En‐lai, Sept. 14, 1958, M. Chemillier‐Gendreau,
note 15 supra, at pp. 43, 129. See also Shen I, at p. 54; B. Murphy, note 29 supra, at pp. 193, 204; B. Dubner, note
29 supra, at p. 309; SOUTH CHINA SEA STUDIES (2012), at p. 5; T. Kelly, note 133 supra; H. Nguyen, note 204 supra, at
p. 190.
34
Chinese scholars also cite a statement issued by the North Vietnamese government on
May 9, 1965, regarding the U.S. declared war zone for Vietnam and its adjacent waters, to
support its position that Vietnam had previously recognized China’s sovereignty over the
Paracel Islands. The Vietnamese declaration indicated that “President Johnson of the United
States has designated as the combat area the entire Vietnam and the water areas near it—an
area about 100 nautical miles away from the Vietnamese coast and part of the territorial sea of
the Xisha Islands of the People's Republic of China.”219 In addition, Chinese sources claim that,
on May 31, 1969, the Vietnamese daily Nhan Dan published a story that recognized Chinese
sovereignty over the Paracels: “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.”220
Based on Vietnam’s purported recognition of China’s claims prior to 1975, some
scholars contend that the principle of estoppel precludes Vietnam from taking a position
contrary to its earlier stance regarding China’s sovereignty over the South China Sea islands and
that China’s claim is therefore superior to that of Vietnam.221
j. Other Supporting Publications

The MFA cites a number of foreign publications in support of its position that the
international community recognizes China’s claims to the South China Sea islands. These
publications include:
 The China Sea Directory, published in Great Britain in 1867, describes the life of
Chinese fishermen living in the Spratly Islands.222
 China Sea Pilot, compiled and printed by the Hydrography Department of the Royal
Navy of the United Kingdom in 1912, has accounts of the activities of the Chinese
people on the Nansha Islands in a number of places.223
219
Shen I, at p. 54. The U.S. declared War Zone was defined as: Vietnam and contiguous waters, as used herein, is
defined as an area which includes Vietnam and the water adjacent thereto within the following specified limits:
From a point on the East Coast of Vietnam at the juncture of Vietnam with China southeastward to 21 N. Latitude,
108° 15'E. Longitude; thence, southward to 18° N. Latitude, 108° 15'E. Longitude; thence southeastward to 17°
30'N. Latitude, 111° E. Longitude; thence southward to 11° N. Latitude; 111° E. Longitude, thence southwestward
to 7° N. Latitude, 105° E. Longitude; thence westward to 7° N. Latitude, 103° E. longitude, thence northward to 9°
30'N. Latitude, 103° E. Longitude, thence northeastward to 10° 15'N. Latitude, 104° 27'E. Longitude, thence
northward to a point on the West Coast of Vietnam at the juncture of Vietnam with Cambodia. Executive Order
11216‐‐Designation of Vietnam and waters adjacent thereto as a combat zone for the purposes of section 112 of
the Internal Revenue Code of 1954, Apr. 24, 1965, available at http://www.presidency.ucsb.edu/ws/?pid=59147.
See also SOUTH CHINA SEA STUDIES (2012), at pp. 5‐6; M. Chemillier‐Gendreau, note 15 supra, at pp. 44, 129.
220
221
Shen I, at p. 57; see also H. Roque, note 208 supra, at pp. 204‐205; B. Murphy, note 29 supra, at p. 205.
222
Su Hao, note 28 supra.
223
“Hainan fishermen, who subsist by collecting trepang and tortoise shells, were found upon most of these
islands; some of them remain for years amongst the reefs. Junks from Hainan annually visit the [Spratly] islands
and reefs with supplies of rice and other necessaries, for which the fishermen give trepang and other articles in
exchange.” H. Chiu and C. Park, note 42 supra, at p. 10. But see François‐Xavier Bonnet, Geopolitics of Scarborough
Shoal, IRASEC’S DISCUSSION PAPER #14, RESEARCH INSTITUTE ON CONTEMPORARY SOUTHEAST ASIA, Nov. 2012, at p. 17 (A
secret report prepared by the Chinese Military Council in September 1933 provides that the: “China Sea
35
 The Far Eastern Economic Review (Hong Kong) contained an article on December 31,
1973, which quotes the British High Commissioner to Singapore as having said in
1970: “Spratly Island (Nanwei Island in Chinese) was a Chinese dependency, part of
Kwangtung Province… and was returned to China after the war. We cannot find any
indication of its having been acquired by any other country and so can only conclude
it is still held by communist China.”224
 Le Monde Colonial Illustre acknowledged the presence of Chinese people on the
Spratly Islands (Nanwei Island, Nanzi Reef, Zhongye Island, and Nanwei Island), as
well as thatched houses, water wells, and holy statues left by Chinese on Nanyue
Island and a signboard with Chinese characters marking a grain storage on Spratly
(Taiping) Island in its September 1933 issue.
 Atlas International Larousse, published in 1965 in France, marks the Paracel (Xisha),
Spratly (Nansha) and Pratas (Dongsha) Islands by their Chinese names and gives
clear indication of their ownership by China in brackets.
 Yearbook of New China, published in Japan in 1966, describes the coastline of China
as 11 thousand kilometers long from Liaodong Peninsula in the north to the Spratly
(Nansha) Islands in the south, or 20 thousand kilometers if including the coastlines
of all the islands along its coast.
 Yearbook of the World, published in Japan in 1972, indicates that Chinese territory
includes not only the mainland, but also Hainan Island, Taiwan, Penghu Islands as
well as the Pratas (Dongsha), Paracel (Xisha), and Spratly (Nansha) Islands, and
Macclesfield Bank (Zhongsha) in the South China Sea.
 Columbia Lippincott World Toponymic Dictionary, published in the United States in
1961, states that the Spratly (Nansha) Islands in the South China Sea are part of
Guangdong Province and belong to China.
 The Worldmark Encyclopedia of the Nations, published in the United States in 1963,
indicates that the islands of the People's Republic of China extend southward to
include those isles and coral reefs in the South China Sea at the north latitude 4°.
 World Administrative Divisions Encyclopaedia, published in the United States in
1971, indicates that the People's Republic of China has a number of archipelagoes,
including Hainan Island near the South China Sea, which is the largest, and a few
others on the South China Sea extending to as far as the north latitude 4°, such as
Pilot…does not say to whom these islands belong and does not give any evidence of any Chinese administration,
the presence of an official representative of China, or Chinese equipment and infrastructure. In conclusion, we
have only one piece of evidence, our fishermen from Hainan, and we have never done anything on these islands.”).
See also SOUTH CHINA SEA STUDIES (2012) (“…Chinese fishermen’s early presence was merely private/individual
activities and thus cannot constitute effective occupation by a State as required by international law.”); H. Nguyen,
note 204 supra, at p. 169 (“Occupation by private individuals will not create a title for their country.”).
224
This alleged statement is inconsistent with Britain’s official position regarding French overseas possessions
during World War II, which provided that the French were “highly sensitive about the restoration of all parts of
their colonial empire to the status quo ante [which would arguably include the Spratlys and Paracels] and that the
British Government will firmly support the French position in view of its desire for the closest possible relations
with France.” Memorandum by the Deputy Director of the Office of European Affairs (H. Freeman Matthews), Nov.
2, 1944, THE PENTAGON PAPERS, UNITED STATES‐VIETNAM RELATIONS (1945‐1967), Part V.B.1., at pp. 37‐38, available at
http://www.archives.gov/research/pentagon‐papers/.
36
the Pratas (Dongsha), Paracel (Xisha), and Spratly (Nansha) Islands, and Macclesfield
Bank (Zhongsha)
 A standard Vietnamese textbook on geography published in 1974 indicates that the
islands from the Spratly (Nansha) and Paracel (Xisha) Islands to Hainan Island and
Taiwan constitute a great wall for the defense of the mainland of China.225
IV. VIETNAM
A. Vietnam Claims
Vietnam’s official position regarding its sovereignty claims to the South China Sea
islands was first set out in a White Paper published by the Ministry of Foreign Affairs (MFA) in
1974. Like China, Vietnam claims sovereignty over all of the Hoang Sa (Paracel) and Truong Sa
(Spratly) archipelagoes based on several factors, including historical evidence, economic
development, effective administration, and international recognition.
1. Historical Evidence
Vietnam traces its initial presence in the Paracels to the 17th century. According to the
MFA, evidence of Vietnamese sovereignty over the Paracel Islands can be found in the works of
Do Ba in a series of maps of Vietnam in the third part of the Hong Duc Atlas. Notes
accompanying the maps “indicate that as far back as the early 17th century, Vietnamese
authorities had been sending…ships and men…” to the Paracels on a regular basis.226 The 17th‐
century atlas—Toan Tap Thien Nam Tu Chi Lo Do Thu (Route Map from the Capital to the Four
225
The MFA similarly cites a number of foreign maps that mark the South China Sea islands as part of Chinese
territory, including:
 The Welt‐Atlas published by the Federal Republic of Germany in 1954, 1961 and 1970;
 World Atlas published by the Soviet Union in 1954 and 1967;
 World Atlas published by Romania in 1957;
 Oxford Australian Atlas and Philips Record Atlas published by Britain in 1957;
 Encyclopaedia Britannica World Atlas published by Britain in 1958;
 World Atlas printed by the mapping unit of the Headquarters of the General Staff of the People's Army of
Viet Nam in 1960;
 Haack Welt Atlas published by German Democratic in 1968;
 Daily Telegraph World Atlas published by Britain in 1968;
 Atlas International Larousse published by France in 1968 and 1969, respectively;
 World Map Ordinary published by the Institut Geographique National of France in 1968;
 World Atlas published by the Surveying and Mapping Bureau of the Prime Minister's Office of Viet Nam in
1972; and
 China Atlas published by Neibonsya of Japan in 1973.
MFA, The Issue of South China Sea; see also Shen I, at pp. 54‐55.
226
MFA White Paper (1974); see also C. Joyner, note 166 supra, at p. 60; T. Kelly, note 133 supra; SOUTH CHINA SEA
STUDIES (2012), at p. 2; Nguyen Ba Dien, note 203 supra; Historical documents on Vietnam’s sovereignty over
Paracel and Spratly Islands, note 203 supra; NATIONAL COMMITTEE OF BORDER AFFAIRS White Paper.
37
Directions)—likewise indicates that the Paracel and Spratly Islands were under the control of
the Nguyen family.227
Other maps, documents, and publications cited by Vietnam in support of its sovereignty
claims over the two archipelagoes include: Đại Nam thực lục tiền biên (1600–1775) (The Early
Chapter of The Chronicles of Đại Nam); Đại Nam Thuc Luc Chinh Bien (relating to the
subsequent period); Toản tập Thiên Nam tứ chí lộ đồ thư (1630–1653) (The Collection of the
South’s Road Map); Giap Ngo Binh Nam Do (1774) (The Map for the Pacification of the South in
the Giap Ngo Year); Phủ biên tạp lục (1776) (Miscellany on the Pacification at the Frontier); Lich
trieu hien chuong loai chi (1821) (Classified Rules of the Dynasties); The Authentic Writings on
Đại Nam (compiled between 1821 and 1844); Đại Nam Nhat Thong Toan Do (1838) (The
Complete Map of the Unified Đại Nam); Kham Dinh Đại Nam Hoi Dien Su Le (1843‐1851) (The
Đại Nam Administrative Repertory); Đại Nam thực lục chính biên (1848) (The Main Chapter of
The Chronicles of Đại Nam); Đại Nam nhất thống chí–the geography and history of Đại Nam
(The Record of The Unified Đại Nam) edited 1865‐1882; Hoàng Việt dư địa chí (1833)
(Geography of The Viet Empire); Việt sử thông giám cương mục khảo lược (1876) (Outline of
The Chronicles of The Viet History); and other official documents of the Nguyen Dynasty on
petitions and imperial decrees, as well as maps and documents made by other countries during
the 17th, 18th, and 19th centuries.228
Some Vietnamese and Western scholars assert that Western writings dating back to the
th
17 century give some credence to Vietnam’s historical claims. Portuguese and Dutch maps
from the early 17th century purportedly identify the Paracels as Vietnamese territory.229
Additionally, in 1701, a Western missionary on board the French ship Amphitrite recorded in
Mystere des atolls—Journal de voyage aux Paracels (Mystery of the atolls—Journal of the
voyage to the Paracel Islands) that “the Paracel is an archipelago belonging to the Kingdom of
An Nam.”230
Western writings from the 19th century likewise support Vietnam’s historical evidence. A
book published in 1837 by a French missionary in Cochinchina, Monseigneur Jean‐Louis Taberd,
entitled Note on the Geography of Cochinchina, described the Paracel Islands as part of
Cochinchina and said that Cochinchines referred to the Paracels as “Cat Vang.”231 A second
book published by Monseigneur Taberd in 1838—History and Description of the Religion,
Customs, and Morals of All Peoples—similarly recorded that the Paracels had been a
dependency of Cochinchina for 34 years.232 A depiction of the Paracels additionally appears in
227
M. Bennett, note 14 supra, at p. 434; see also T. Kelly, note 133 supra; SOUTH CHINA SEA STUDIES (2012), at p. 2.
(This is “the first Vietnamese documentation of formal exercise of authority over the Truong Sa.”).
228
SOUTH CHINA SEA STUDIES (2012), at p. 2; Nguyen Ba Dien, note 203 supra; Historical documents on Vietnam’s
sovereignty over Paracel and Spratly Islands, note 203 supra; M. Chemillier‐Gendreau, note 15 supra, at pp. 66‐67;
NATIONAL COMMITTEE OF BORDER AFFAIRS White Paper; H. Nguyen, note 204 supra, at p. 174.
229
T. Kelly, note 133 supra; see also SOUTH CHINA SEA STUDIES (2012), at p. 2.
230
Historical documents on Vietnam’s sovereignty over the Paracel and Spratly Islands, note 203 supra; NATIONAL
COMMITTEE OF BORDER AFFAIRS White Paper.
231
Nguyen Ba Dien, note 203 supra; Historical documents on Vietnam’s sovereignty over Paracel and Spratly
Islands, note 203 supra; NATIONAL COMMITTEE OF BORDER AFFAIRS White Paper; H. Nguyen, note 204 supra, at p. 177.
232
38
Taberd’s 1838 An Nam Dai Quoc Hoa Do (Tabula geographica imperia Anamitici—The Map of
the An nam Empire).233
Jean‐Baptiste Chaigneau’s memoires (Memoires sur la Cochinchina) also refer to
Emperor Gia Long’s annexation of the Paracels in 1816:
Cochinchina, the sovereign of which has today the title of Emperor, is composed of
Cochinchina proper, Tonquin, a part of the Kingdom of Cambodia, some uninhabited
islands not far from the coast and the Paracels archipelago, composed of uninhabited
reefs and rocks. It is only in 1816 that the present Emperor took possession of this
archipelago.234
Chaigneau was a French naval officer who played a leading role in Vietnam during the 19th
century.
A reference to the Paracels as Vietnamese territory can also be found in Japon, Indo‐
Chine, Empire Birman (ou Ava), Siam, Annam (ou Cochinchine), Pèninsule Malaise, etc., Ceylan
by French explorer and author Adolphe Philibert Dubois de Jancigny.235 Additionally, in his 1849
article Geography of the Cochinchinese Empire, German missionary Karl Gützlaff “defined the
Paracels as part of Vietnam’s territory and noted the islands with the Vietnamese name ‘Cat
Vang’.”236 Gützlaff additionally noted:
We should…mention here the Paracels. …From time immemorial, junks in large number
from Hainan, have annually visited these shoals, and proceeded in their excursions as
far as the coast of Borneo. …The Annam government, perceiving the advantages which
it might derive if a toll were raised, keeps revenue cutters and a small garrison on the
spot to collect the duty on all visitors, and to ensure protection of its own fishermen.237
Aldriano Balbi’s The Italian Compendium of Geography (1850) similarly includes the Paracel,
Pirate (Hà Tiên), and Puolo Condor (Côn Sơn) Islands within the Kingdom of Annam.238
A letter from the Chief Resident of Annam (Le Fol) to the Governor General of
Indochina, dated January 22, 1929, likewise confirms that Vietnam effectively administered the
Paracels from the early 18th century onwards:
…The Paracel archipelago…seems to have remained res nullius until the beginning of the
last century. …Monsignor Jean Louis Taberd…reports the occupation of the Paracels…in
233
Islands, note 203 supra; NATIONAL COMMITTEE OF BORDER AFFAIRS White Paper.
234
H. Chiu and C. Park, note 42 supra, at p. 7; see also Nguyen Ba Dien, note 203 supra; Historical documents on
Vietnam’s sovereignty over Paracel and Spratly Islands, note 203 supra; NATIONAL COMMITTEE OF BORDER AFFAIRS
White Paper; H. Nguyen, note 204 supra, at p. 183; M. Chemillier‐Gendreau, note 15 supra, at p. 69.
235
H. Nguyen, note 204 supra, at p. 177.
236
237
238
The Paracels and Spratlys are not mentioned in the Chinese section of the same book. Id., at p. 183.
39
1816 by Emperor Gia Long…. Although doubts may be cast on the authenticity of the
formal taking of possession by Gia Long himself, the occupation was nonetheless
effective….239
Le Fol goes on to describe the detailed “information on the administration of the islands by
former dynasties from the early years of the 19th century onwards.”240
Vietnamese and Western scholars also claim that Chinese writings and geographical
documents confirm the accuracy of the aforementioned Western writings. For example, in
1730, Hai Lu wrote in Hai Quoc Do Chi that “…Truong Sa…forms a rampart on the periphery of
the Kingdom of Annam (Vietnam).”241 A map of Kwangtung (Guangdong) Province and a
description of the Quiongzhou Prefecture published in 1731 do not mention either the Paracels
or the Spratlys as part of China.242 This omission was confirmed in Hoang Chao’s 1894 Map of
the Unified Empire, which depicts Chinese territory as extending only as far south as Hainan
Island. Likewise, the 1906 Zhongguo Dilixue Jiaokeshu (Manual of Geography of China) states in
the Generalities chapter “that the Chinese territory is bound in the South at North latitude
18°13', the terminus being the coast of Yazhou, island of Hainan.”243 A similar report is found in
Li Hanzhung’s Geography of Guandong, published in 1909—“Today the maritime frontiers are
limited in the South by the island of Hainan….”244
The MFA asserts that systematic exploitation of the Paracels’ resources started as early
as the 15th century, but certainly no later than 1653.245 Economic exploitation of the islands
gradually evolved from the 15th century onward, leading to the establishment of the Hoang Sa
Company by the Nguyen Dynasty “to ensure a rational exploitation of those islands.”246
According to the works of Do Ba, each year during the last month of winter, the Nguyen
rulers would send a flotilla of 18 junks to salvage foreign commercial ships that had wrecked on
the islands, obtaining large “quantities of gold, silver, coins, rifles and ammunitions.”247
Evidence of these salvage expeditions is recorded in the historical work of Le Qui Don248—Phu
Bien Tap Luc (Miscellaneous Records on the Pacification of the Frontiers):
239
M. Chemillier‐Gendreau, note 15 supra, at p. 65, Annex 8 (Letter of 22 January 1929, from the Chief Resident of
Annam, Hué, to the Governor General of Indochina, Hanoi).
240
Id.
241
Id., at p. 74; see also H. Nguyen, note 204 supra, at p. 171.
242
243
Id., at p. 75; see also H. Nguyen, note 204 supra, at p. 171.
244
245
MFA White Paper (1974); see also SOUTH CHINA SEA STUDIES (2012), at p. 2.
246
Id.; see also H. Roque, note 208 supra, at p. 192; T. Kelly, note 133 supra.
247
MFA White Paper (1974); see also B. Murphy, note 29 supra, at p. 203; H. Chiu and C. Park, note 42 supra, at
p. 7; Nguyen Ba Dien, note 203 supra; Historical documents on Vietnam’s sovereignty over Paracel and Spratly
Islands, note 203 supra; H. Nguyen, note 204 supra, at p. 174; NATIONAL COMMITTEE OF BORDER AFFAIRS White Paper.
248
Le Qui Don was a mandarin Chinese sent to Vietnam by the Chinese Court in order to serve as the Vice‐
Governor in the realm recently taken over by the Court from the Nguyen Lords. MFA White Paper (1974); see also
M. Chemillier‐Gendreau, note 15 supra, at pp. 64, 66, Annex 8 (Letter of 22 January 1929, from the Chief Resident
of Annam, Hué, to the Governor General of Indochina, Hanoi).
40
…the Nguyen had created a Hoang Sa Company of 70 men…. Every year they take turns
in going out to sea, setting out during the first month of the lunar calendar…. Each
man…is given six months’ worth of dry food. …[I]t takes them three days before they
reach the islands. They are free to collect anything they want, to catch…birds…and to
fish for food. They…find the wreckage of ships which yield such things as bronze swords
and copper horses, silver decorations and money, silver rings and other copper
products, tin ingots and lead, guns and ivory, golden bee‐hive tallow, felt blankets,
pottery, and so forth. They also collect turtle shells, sea urchins and striped conches in
huge quantities. The Hoang Sa Company does not come home until the eight[h] month
of the year. They go to Phu Xuan (present‐day Hue) to turn in the goods they have
collected in order to have them weighed and verified, then get an assessment before
they can proceed to sell their striped conches, sea turtles and urchins. Only then is the
Company issued a certificate which [indicates] they can go home. …249
Members of the Hoang Sa detachments were exempt from paying personal taxes and were
rewarded monetarily for their efforts.250 By the same token, “those who did not complete the
task were punished according to the gravity of their failure” or indiscretion.251
By the early 18th century, exploitation of the Paracels had become less profitable. Le
recorded that in 1702, “the Hoang Sa Company collected 30 silver ingots”; in 1704, “5,100
catties of tine [measures of pewter] were brought in”; in 1705, “126 ingots of silver were
collected”; and between 1709 and 1713, “the company managed to collect only a few catties of
tortoise shells and sea urchins.”252 As a result, the duration of the operation was reduced from
six to two months.253
The MFA claims that these expeditions demonstrate that by the 18th century the Nguyen
Lords were “concerned with the economic possibilities of the…Paracel Islands” and “the fact
that no counterclaims were made by any other nation is…proof that the Nguyen’s sovereign
rights over the islands were not challenged by any country.”254 In fact, the MFA claims that
249
MFA White Paper (1974); see also T. Kelly, note 133 supra; Nguyen Ba Dien, note 203 supra; Historical
BORDER AFFAIRS White Paper; H. Nguyen, note 204 supra, at pp. 175, 180‐181; M. Chemillier‐Gendreau, note 15
supra, at pp. 64‐65 (Le’s account accurately places the archipelagoes as lying three days’ and three nights’ journey
from the mainland).
250
H. Nguyen, note 204 supra, at p. 181; see also M. Chemillier‐Gendreau, note 15 supra, at pp. 67, 69.
251
Punishments ranged from floggings, to the death penalty. Id.
252
MFA White Paper (1974); M. Chemillier‐Gendreau, note 15 supra, at p. 65.
253
A geography book written by Phan Huy Chu in 1834—Hoang Viet Dia Du Chi—reflects that “the Hoang Sa
Company…was still composed of 70 men…. However, they receive dry food and…go out to sea in the third month
of the lunar calendar (rather than the first…). They begin their return journey in the six[th] month [rather than the
eighth].” MFA White Paper (1974); see also Nguyen Ba Dien, note 203 supra; Historical documents on Vietnam’s
sovereignty over Paracel and Spratly Islands, note 203 supra; NATIONAL COMMITTEE OF BORDER AFFAIRS White Paper.
254
MFA White Paper (1974); accord M. Chemillier‐Gendreau, note 15 supra, at p. 67 (At the very least, the
establishment and operation of the Hoang Sa Company by variouis Vietnamese dynasties for the purpose of
economically exploiting and exploring the South China Sea islands clearly reflect a “national policy with a concern
for maritime interests.”). See also Nguyen Ba Dien, note 203 supra; Historical documents on Vietnam’s sovereignty
over Paracel and Spratly Islands, note 203 supra; NATIONAL COMMITTEE OF BORDER AFFAIRS White Paper. But see B.
41
Vietnamese exploitation of the Paracels during this time was carried out openly and peacefully,
and was “acknowledged by the Chinese to be an exercise of legitimate rights over the
islands.”255
Like its predecessor, the Tay Son Dynasty (1778‐1802) continued to deploy the Hoang Sa
flotillas to the Paracels to exploit its resources. An order issued in 1786 by Mandarin Superior
Thuong Tuong Cong instructed the Commander of the Hoang Sa Flotilla, Hoi Duc Hau, to “lead
four fishing boats to sail directly towards Hoang Sa [Paracels] and other islands on the sea to
collect jewelries, copper items, guns of all size, sea turtles, and valuable fishes, and to return to
the Capital to hand over all of these items in accordance with the current rules.”256
The MFA points out that a British publication from the early 19th century confirms that
Vietnam was economically exploiting the Paracels. A book written by John Barrow in 1806—A
Voyage to Cochinchina—recorded the travels of Count George Macartney, the British Envoy to
the Chinese Court, in Cochinchina in 1793. The book contains a detailed description of the
“types of boats used by the Cochinchinese in order to reach…the Paracel Islands where they
collected trepang and swallow nests.”257
Economic exploitation of the phosphate deposits in the Paracels resumed in 1956 when
the Ministry of Economy granted a license to Le Van Cang, a Saigon businessman, to exploit
phosphate on Money, Roberts, and Pattle Islands.258 A license was subsequently granted to the
Vietnam Fertilizers Company in 1959 to extract and transport phosphate to a Singaporean
company (Yew Huatt)—the company exploited guano under this license until 1963.259 The
following year, commercial exploitation of the Paracels was awarded to the Vietnam Phosphate
Company. Between 1957 and 1962, over 24,000 metric tons of phosphate were extracted from
the islands. Production ceased for 10 years due to insufficient returns, but interest in exploiting
the islands resurfaced in 1973 after the Republic of Vietnam experienced a severe fertilizer
shortage. A joint feasibility study was conducted that same year by the Vietnam Fertilizer
Company and its Japanese partner—Marubeni Corporation of Tokyo.260 Following the study,
Vietnamese authorities granted concessions to foreign companies to exploit phosphate
deposits in the Paracels in July 1973.261 These concessions were abruptly terminated when
Chinese naval forces invaded and occupied the entire archipelago in 1974.
Following the unification of the country in 1975‐76, the new government also entered
into cooperative agreements with a number of countries, including Japan (July 1978) and the
Soviet Union (July 1980), to explore and exploit hydrocarbon reserves in and around the
Spratlys.262
Murphy, note 29 supra, at p. 203 (“The Vietnamese government presents no evidence to show that the ‘team’ set
up by the Nguyens in the seventeenth century ever left mainland Vietnam to administer and exploit the Spratlys.”).
255
MFA White Paper (1974).
256
257
258
Id.; see also Shen I, at p. 52; H. Nguyen, note 204 supra, at p. 188.
259
H. Nguyen, note 204 supra, at pp. 188‐189; see also M. Chemillier‐Gendreau, note 15 supra, at p. 18.
260
MFA White Paper (1974); see also Nguyen Ba Dien, note 203 supra; Historical documents on Vietnam’s
261
Shen I, at p. 53; see also SOUTH CHINA SEA STUDIES (2012), at p. 3.
262
42
3. Effective Administration
According to the MFA, beginning in 1802, Vietnam progressively asserted its rights over
the Paracel Islands. In 1815, Emperor Gia Long ordered Pham Quang Anh to survey and chart
the sea routes around the islands.263 The following year, Vietnam formally took possession of
the archipelago, following a formal flag raising ceremony.264 Legal experts from the French
Foreign Ministry determined that “this annexation, even without effective occupation, seems to
have been carried out in conformity with the international law of the time” and that “the
annexation therefore conferred legal title to Annam.”265
The 1816 flag planting ceremony is recorded in Reverend Jean‐Louis Taberd’s 1837 Note
on the Geography of Cochinchina (printed in the Journal of the Royal Asiatic Society of Bengal,
India)—“In 1816, [Emperor Gia Long]…went with solemnity to plant his flag and take formal
possession of these rocks, which it is not likely anybody will dispute with him.”266 A similar
report is contained in Jean‐Baptiste Chaigneau’s Notice sur la Cochinchine:
“Cochinchina…includes Cochinchina proper, Tonkin, a few scarcely inhabited islands not

far from the coastline and the Paracel archipelago…. It was in 1816 that…Emperor Gia
Long took possession of this archipelago.”267
The first map published by the kingdom in 1830 included the Paracels (presumably including
the Spratlys) as part of Vietnamese territory.268
Three years later, in 1833, Emperor Minh Mang ordered his Minister of Public Work to
plant trees on some of the Paracel Islands as aids to navigation to prevent ships from “being
wrecked in these not very deep waters.”269 According to the MFA, Vietnam executed this act to
meet its international responsibilities and enhance safety of navigation for the international
community.
The following year, Emperor Minh sent a naval detachment of 20 men under the
command of Garrison Commander Truong Phuc Si to the Paracels to make a map of the area.270
Subsequently, in 1835, the emperor directed the Elephant Garrison Detachment under the
command of Navy Commander Pham Van Nguyen to build a new temple on the island of Bach
263
Islands, note 203 supra; NATIONAL COMMITTEE OF BORDER AFFAIRS White Paper; H. Nguyen, note 204 supra, at p. 181;
264
MFA White Paper (1974) (“The progressive intensification of Vietnamese control over the Hoang Sa Islands
reached a decisive and irreversible point at the beginning of the 19th century, when the reigning Nguyen dynasty
developed a systematic policy toward complete integration of the archipelago into the national community.”); see
also H. Roque, note 208 supra, at p. 192; B. Dubner, note 29 supra, at p. 311; H. Chiu and C. Park, note 42 supra, at
p. 7; T. Kelly, note 133 supra; M. Chemillier‐Gendreau, note 15 supra, at p. 35.
265
M. Chemillier‐Gendreau, note 15 supra, Annex 38 (Notes from the Legal Department, Paris, 6 September 1946).
266
Reverend Taberd was the Bishop of Isauropolis at the time. Id.
267
Id., at p. 69, Annex 38 (Notes from the Legal Department, Paris, 6 September 1946).
268
H. Roque, note 208 supra, at p. 192.
269
sovereignty over Paracel and Spratly Islands, note 203 supra; NATIONAL COMMITTEE OF BORDER AFFAIRS White Paper; M.
Chemillier‐Gendreau, note 15 supra, at p. 68.
270
Id.
43
Sa (White‐Sand Island).271 The temple, which included a stone mark to its left and a brick screen
in front, was completed in 10 days and was located seven truong (approximately 28 meters)
distant from the old temple in the southwest part of the island.272 A temple dedicated to the
gods of Hoang Sa was also built on the beach of Quang Ngai in 1835.273
Because the islands were considered to be of great strategic importance, the Ministry of
Public Works recommended that survey missions be dispatched to the Paracels each year “to
explore the whole archipelago and to get accustomed to the sea routes there.”274 Accordingly,
beginning in 1836, Emperor Minh developed a plan to systematically survey the entire
archipelago:
Everything shall be noted and described in detail for submission to…The Emperor. As
soon as the junks reach any island or sandbank…, they shall…measure the length,
breadth, height, surface area and circumference of that island or sandbank, the depth of
the surrounding waters, identify any submerged 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.275
That same year, the emperor dispatched a naval team under the command of Navy
Commander Pham Huu Nhat to explore and map the entire Paracels. The team erected 10
sovereignty markers on several of the islands—on each marker was the inscription:
In the year Binh Than, 17th Year of the reign of Minh Mang, Navy Commander Pham Huu
Nhat, commissioned by the Emperor to Hoang Sa to conduct map surveyings, landed at
this place and planted this marker so to perpetuate the memory of the event.276
Data collected during the deployment was subsequently used to draw the Detailed Map of the
Dai Nam (1838), which clearly reflected that the Paracels and Spratlys were part of Vietnam.277
Thereafter, a naval detachment was dispatched to the Paracels each spring to improve
knowledge of the sea routes around the archipelago and “to levy taxes on the fishermen of the
region.”278 Reports were also periodically prepared by the Ministry of the Interior, describing
the expenditures and activities of the Hoang Sa Company.279
271
Id.
272
The old temple had a sign on it with the inscription “Van Ly Ba Binh.” There was also a well in the middle of the
island. Id.
273
Id.; H. Chiu and C. Park, note 42 supra, at p. 7.
274
MFA White Paper (1974); see also T. Kelly, note 133 supra.
275
276
sovereignty over Paracel and Spratly Islands, note 203 supra; NATIONAL COMMITTEE OF BORDER AFFAIRS White Paper; H.
Nguyen, note 204 supra, at pp. 176, 181‐182.
277
MFA White Paper (1974); see also H. Chiu and C. Park, note 42 supra, at p. 7; T. Kelly, note 133 supra. Compare
B. Dubner, note 29 supra, at p. 311 (“An inaccurate 1838 Vietnamese map substantiates this claim, depicting the
Spratlys as part of Vietnamese territory.”).
278
H. Nguyen, note 204 supra, at p. 176; M. Chemillier‐Gendreau, note 15 supra, at p. 36.
279
44
Vietnamese scholars additionally point to a number of search and rescue operations
conducted by the Nguyen Dynasty to support Vietnam’s claim of sovereignty over the Paracel
Islands. In this regard, assistance was provided to the Dutch ship Gootebrok in 1634 after the
vessel wrecked in the vicinity of the Paracels.280 Assistance was similarly provided in 1714 to
three Dutch vessels en route to Batavia from Japan after the vessels were caught by a severe
storm near the archipelago.281 A report of the Governor of Da Nang also documents assistance
provided by Vietnamese officials to a French merchant ship that sunk in the Paracels in 1830.282
Likewise, the crew of a British merchant vessel that shipwrecked near the Paracels in 1836 was
provided shelter, money, and food by Vietnamese officials from Bình Định Province before the
crew was repatriated.283
a. French Colonial Rule

Widespread persecution of French missionaries and onerous trade restrictions on
French traders prompted France to invade Vietnam in 1858. French naval forces captured the
cities of Tourane and Gia Dinh (Saigon) in 1858 and 1859, respectively. Two years later the
French gained control of the provinces surrounding Gia Dinh. As a result, Vietnam ceded three
provinces—Bien Hoa, Gia Dinh, and Dinh Tuong (later known as Cochinchina)—and the island of
Con Son (Poulo Condore), as well as three ports in Annam (Central Vietnam) and Tonkin
(Northern Vietnam), to France in the First Treaty of Saigon (1862).284 Cochinchina was formally
declared a French territory in 1864. A decade later, the French attacked Hanoi and, in March
1874, forced the emperor to sign the Second Treaty of Saigon, which recognized France’s “full
and entire sovereignty” over Cochinchina.285 The city of Huế fell to French forces in August 1883
and a Treaty of Protectorate was signed the same month at the 1883 Harmand Convention,
establishing a French protectorate over North (Tonkin) and Central Vietnam (Annam) and
formally ending Vietnam’s independence. The following year, in June 1884, Vietnamese officials
signed the Treaty of Huế, “which confirmed the Harmand Convention agreement.”286 At the
conclusion of the Sino‐French War (1884‐1885), France gained control over northern
Vietnam.287 French Indochina—modern‐day Vietnam (Tonkin, Annam, and Cochinchina) and
Cambodia—was subsequently established in 1887. Laos was added to the French colonial
empire in 1893, following the Franco‐Siamese War.288
According to the MFA, France (as the successor state to the Kingdom of Annam)
continued to exercise sovereignty over the Paracels until Vietnam regained its independence
after the Second World War. As early as 1898, there was already evidence that French colonial
authorities envisaged sovereignty over the islands—a memorandum from the Ministry of the
Colonies and the Government General of Indochina reported that:
280
281
Id.
282
Id., at pp. 182‐183.
283
Id., at p. 183.
284
LIBRARY OF CONGRESS, FEDERAL RESEARCH DIVISION, Country Studies: Vietnam, available at
lcweb2.loc.gov/frd/cs/vntoc.html.
285
Id.
286
Id.
287
Id.
288
Id.
45
A journalist, Mr Chabrier, had declared his intention of establishing in the Paracels
stores to sell provisions to fishermen. …Mr Doumer replied…that Mr Chabrier’s venture
had no chance of success but that…it might be opportune to build a lighthouse in the
archipelago in order to assert our [French] sovereignty. …289
A number of scientific studies of the islands were subsequently conducted by the

French, as well as a feasibility study for the construction of a lighthouse on one of the Paracel
Islands.290 French warships were also tasked with securing the sea lanes for maritime traffic and
conducting search and rescue operations for wrecked foreign ships in the Paracels.291 By 1920,
French customs officials in Indochina were making regular inspections to the islands to stem
illicit traffic in weapons, munitions, and opium—solid proof of government administration of
the islands.292 In fact, French control was so pervasive in the Paracels that a Japanese
company—the Mitsui Bussan Kaisha Company—requested permission from French authorities
in Indochina to exploit phosphate deposits on Woody and Robert Islands.293
French activities in the Paracel Islands continued unabated and unchallenged
throughout the 1920s and 1930s. Colonial institutions and private authors conducted a number
of scientific studies on the islands. In 1925, the vessel De Lanessan, with a number of scientists
from the Oceanographic Institute of Nha Trang, conducted a scientific mission to the Paracels
that “confirmed the existence of rich beds of phosphate, which became the object of many
detailed studies.”294 Scientific survey missions were also conducted by the French ships Alerte,
Astrobale, and Ingénieur‐en‐Chef Girod, and are recorded in:
 Krempf, La forme des recifs coralliens et le regime des vents alternants, Saigon 1927.
 J. Delacour and P. Jabouille, Oiseaux des iles Paracels, Nha‐trang, 1928.
289
290
Although the lighthouse project was supported by Indochina Governor General Paul Doumer, the plan was
abandoned for lack of funds. MFA White Paper (1974); see also M. Chemillier‐Gendreau, supra), at p. 37, 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) (“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.”); SOUTH CHINA SEA STUDIES (2012), at p. 2;
Nguyen Ba Dien, note 203 supra; Historical documents on Vietnam’s sovereignty over Paracel and Spratly Islands,
note 203 supra; NATIONAL COMMITTEE OF BORDER AFFAIRS White Paper, note 203 supra.
291
292
Id.; see also H. Chiu and C. Park, note 42 supra, at pp. 7‐8; T. Kelly, note 133 supra; SOUTH CHINA SEA STUDIES
(2012); M. Chemillier‐Gendreau, note 15 supra, at pp. 37, 101, 104; Nguyen Ba Dien, note 203 supra; Historical
BORDER AFFAIRS White Paper.
293
The Japanese would later abandon the mining enterprise. H. Chiu and C. Park, note 42 supra, at p. 8; see also M.
Chemillier‐Gendreau, note 15 supra, at pp. 18, 37 (Japanese companies mined phosphates on the islands between
1924 and 1926.).
294
MFA White Paper (1974); see also H. Chiu and C. Park, note 42 supra, at p. 8; M. Chemillier‐Gendreau, note 15
supra, at pp. 37, 104; Nguyen Ba Dien, note 203 supra; Historical documents on Vietnam’s sovereignty over Paracel
and Spratly Islands, note 203 supra; NATIONAL COMMITTEE OF BORDER AFFAIRS White Paper.
46
 Notes of the Oceanographic Institute of Indochina in Nhatrang containing valuable
scientific data about the Paracels (e.g., 5th Note (1925‐26), 22nd Note (1934)).295
In 1929, the Pierre de Rouville delegation proposed the construction of four lighthouses
on Triton and Lincoln Islands and on Da Bac (the North) and Bombay Reefs.296 The following
year, the crew of the French ship La Malicieuse landed on a number of features in the Paracels
and planted flags and emplaced sovereignty columns, without objection from the Chinese
government. 297 Studies on the Paracel phosphate beds were also conducted:
 Maurice Clerget, Contribution à l'étude des iles Paracels; les phosphates. Nhatrang,
Vietnam 1932.
 Lacroix, Les ressources minérales de la France d'Outre‐Mer, tome IV (Paracels'
phosphate: p. 165), Paris 1935.
 United Nations, ECAFE, Phosphate Resources of Mekong Basin Countries; 4. Vietnam,
(1): Paracel Islands; Bangkok 1972.298
The MFA additionally asserts that the 1925 “De Lanessan survey mission also proved the
existence of a continental shelf which reaches out in platforms from the Vietnamese coast into
the sea: the Paracels rest on one of these platforms, and thus are joined to the coast of
Vietnam by a submarine plinth.”299 This assertion, however, is highly questionable as the
Paracels “lie well beyond the geological continental shelf…” of any of the six South China Sea
claimants and therefore cannot “be considered to be the natural prolongation of the…”
Vietnamese mainland.300
France continued to assert its sovereignty over the archipelago, protesting attempted
Chinese incursions in the Paracels. On December 4, 1931, France diplomatically protested a
Chinese government announcement that it intended to invite bids from foreign companies to
exploit the phosphate deposits in the Paracels.301 The French protest was renewed on April 24,
1932, after China publicly called for bids, citing its rights as the successor state to the Kingdom
of Annam—i.e., “the former rights exercised by the emperors of Vietnam, the official taking of
possession by Emperor Gia Long in 1816, and the sending of Indochinese troops to guard the
islands….”302
Attempts by France later that year to have the dispute resolved by an international
tribunal were rejected by China.303 As a result, on June 15, 1932 (Decree No. 156‐SC), the
295
296
297
Id.; see also MFA White Paper (1974); M. Chemillier‐Gendreau, note 15 supra, at p. 38.
298
299
Id.
300
301
Id., at pp. 38, 102; see also MFA White Paper (1974); Nguyen Ba Dien, note 203 supra; Historical documents on
White Paper.
302
Id.
303
47
Governor General of Indochina, Pierre Pasquier, designated the Paracels (Delegation des
Paracels) as an administrative unit of Thua Thien (Huế) Province.304 Renewed efforts by France
in 1937 to resolve the outstanding dispute with China over the islands through international
arbitration met with Chinese opposition. Following the rebuff by China, the French colonial
government dispatched the head of public works (Chief Engineer Gauthier) to the Paracels in
order to “study the potential for maritime and air traffic facilities, and to build a lighthouse on
Pattle Island.”305
The following year, Decree No. 156‐SC was confirmed by Emperor Bao Dai in a
Vietnamese imperial ordinance on March 30, 1938.306 Vietnamese troops under the command
of French officers (Garde Indochinoise) were also sent to occupy the islands and erect
sovereignty columns on a number of the features in the archipelago. The column on Pattle
Island contained the following inscription in French:
Republique Francaise [French Republic]

Empire d’Annam [Kingdom of Annam]
Archipel des Paracels 1816 [Paracels Archipelago 1816]
Ile de Pattle 1938 [Pattle Island 1938]307
A lighthouse, meteorological station, and radio station were also constructed on Pattle
Island.308 Then, on May 5, 1939, Governor General Joseph Jules Brévié divided the Paracel
archipelago into two delegations—Crescent et Dependences (Crescent Group) and Amphitrite
et Dependences (Amphitrite Group).309 Additionally, French civil service officers and
Vietnamese police were permanently stationed on Pattle Island (Crescent Group) and Woody
Island (Amphitrite Group) on a regular basis as a further demonstration of French
sovereignty.310
French and Vietnamese forces remained in the Paracels until 1956, with a hiatus of
several years during Japan’s occupation of the islands in the Second World War. Pursuant to an
exchange of notes, France and China agreed that French troops would relieve Chinese troops
stationed in Indochina to the north of the 16th degree of latitude (which includes both the
304
Id., at pp. 39, 113; see also MFA White Paper (1974); H. Chiu and C. Park, note 42 supra, at p. 8; H. Nguyen, note
204 supra, at p. 185.
305
306
Id.; see also SOUTH CHINA SEA STUDIES (2012), at p. 2; Nguyen Ba Dien, note 203 supra; Historical documents on
Vietnam’s sovereignty over Paracel and Spratly Islands, note 342 supra; H. Nguyen, note 204 supra, at p. 185;
NATIONAL COMMITTEE OF BORDER AFFAIRS White Paper.
307
MFA White Paper (1974) (The dates reflect the taking of possession of the Paracels by Emperor Gia Long and
the year the marker was erected.); see also M. Chemillier‐Gendreau, note 15 supra, at p. 39; SOUTH CHINA SEA
STUDIES (2012), at p. 2.
308
SOUTH CHINA SEA STUDIES (2012), at p. 2; see also Nguyen Ba Dien, note 203 supra; Historical documents on
Vietnam’s Sovereignty over Paracel and Spratly Islands, note 203 supra; NATIONAL COMMITTEE OF BORDER AFFAIRS
White Paper.
309
MFA White Paper (1974); see also H. Nguyen, note 204 supra, at p. 185; SOUTH CHINA SEA STUDIES (2012), at p. 2;
310
Id.
48
Paracels and Spratlys) no later than March 31, 1946.311 Accordingly, French forces embarked on
the Savorgnan de Brazza were dispatched to re‐occupy the Paracels in June 1946. However,
events in the ongoing French‐Vietminh war forced the French garrison to withdraw from the
Paracels in September 1946.312 Nonetheless, French Chief of Staff of National Defense General
Alphonse Pierre Juin urged the Chairman of the Committee on Indochina to reoccupy the
Paracels in October 1946 to consolidate France’s legal position:
…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 at 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…consolidate our position in any future legal debate on this matter between France
and China.313
Additionally, all ships planning to call on the Paracels were required to request permission from
the French High Commission in Saigon before stopping at the archipelago.314
Upon learning that Chinese Nationalist forces sent to the Paracels to accept the
surrender of the Japanese garrison had remained in the archipelago following the withdrawal of
Allied occupation forces from French Indochina in 1946, France issued a formal diplomatic
protest on January 13, 1947.315 The warship Le Tonkinois was also deployed to the area on
January 17, 1947, to eject the Chinese Nationalists from Woody Island. However, realizing that
they were outnumbered, the French‐Vietnamese forces re‐grouped and established their
headquarters on Pattle Island.316 Later that year, the weather station that had operated on
Pattle Island from 1938 to 1944 was rebuilt and became operative in late 1947 under
international station code 48860.317
That same year, France again suggested that the dispute be submitted to the
International Court of Justice for resolution, but China refused, insisting that French troops
311
M. Bennett, note 14 supra, at pp. 440‐441; see also M. Katchen, note 120 supra, at p. 1179; Exchange of Letters
between China and France Relating to the Relief of Chinese Troops by French Troops in North Indochina, Chungking,
Feb. 28, 1946, U.N.T.S., Vol. 14, 1948, at p. 151; M. Chemillier‐Gendreau, note 15 supra, at pp. 40, 116.
312
M. Bennett, note 14 supra, at pp. 440‐441; see also M. Katchen, note 120 supra, at p. 1179; S. Tønnesson, note
55 supra, at p. 11; M. Chemillier‐Gendreau, note 15 supra), at p. 40; SOUTH CHINA SEA STUDIES (2012), at p. 5.
313
M. Chemillier‐Gendreau, note 15 supra, at p. 116, Annex 33 (Letter from General Juin, Chief of Staff of National
Defense, to the Chairman of the Committee on Indochina, 7 October 1946).
314
Id., at pp. 117‐118.
315
M. Bennett, note 14 supra, at pp. 440‐441; M. Katchen, note 120 supra, at p. 1179.
316
Id.; see also S. Tønnesson, note 55 supra, at p. 11 (“France…made an unsuccessful attempt to force a Chinese
garrison to leave Wood Island. When the Chinese refused, France instead established a permanent presence, on
behalf of Vietnam, on Pattle Island in the western part of the Paracels.”); Nguyen Ba Dien, note 203 supra (“…after
the Second World War, the French, following their return to Viet Nam, set warships to the Hoang Sa
archipelago…to rebuild the meteorological station on the Pattle Island and to resist Chinese land‐grabbing
attempts.”); Historical documents on Vietnam’s sovereignty over Paracel and Spratly Islands, note 203 supra;
317
M. Bennett, note 14 supra, at pp. 440‐441; M. Katchen, note 120 supra, at p. 1179; SOUTH CHINA SEA STUDIES
(2012), at p. 2; Nguyen Ba Dien, note 203 supra; Historical documents on Vietnam’s sovereignty over Paracel and
Spratly Islands, note 203 supra; NATIONAL COMMITTEE OF BORDER AFFAIRS White Paper.
49
immediately withdraw from the islands.318 Consideration was given to unilaterally seek a
judgment from the Court, but the Legal Department of the French Ministry of Foreign Affairs
determined in 1950 that it was “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.”319 The French hydrographic survey ship Ingenieur en chef Girod
subsequently deployed to the Paracels in 1953 to conduct oceanographic, geologic, geographic,
and ecological studies.320
Contemporaneously with its activities in the Paracels, France was also solidifying its
sovereignty claims to the Spratly archipelago. In 1927, the De Lanessan conducted an initial
scientific survey of the Spratlys.321 Three years later, the La Malicieuse conducted a second
survey of Spratly Island (Ile de la Tempete (Tempest Island), but this time the French survey
team hoisted the French flag over the island—the first recorded instance of a sovereignty
marker being placed on any of the Spratly Islands.322 On September 23, 1930, France delivered
a communiqué to the other Great Powers notifying them that France had occupied the Spratlys
on the grounds that the islands were terra nullius.323
In November 1928, the New Phosphates Company of Tonkin applied to the Governor of
Cochinchina for a permit to exploit phosphate deposits in the Spratlys.324 Subsequently, France
dispatched the Alerte, the Astrobale, and the De Lanessan to the Spratlys in April 1933 to
officially take physical possession of the archipelago. French author H. Cocherousset published
an account of the expedition in a newspaper article printed in L’Eveil economique de l’Indochine
(No. 790 of May 28, 1933):
The three vessels first…visited Spratley and confirmed French possession by means of a
document drawn up by the Captains, and placed in a bottle which was subsequently
embedded in cement. Then the Astrolabe sailed south west to a point 70 miles from
Spratley…, and arrived at the caye (sandy island) of Amboine…. Possession was taken of
the island in the manner related above. …Meanwhile, the Alerte sailed towards the atoll
Fiery Cross (or Investigation) at a point about 80 miles north‐west of Spratly…. …At the
same time the De Lanessan proceeded towards the London reefs, at about 20 miles
north‐east of Spratly. …The De Lanessan and Astrolabe later sailed north where, about
20 miles from the Tizard bank, is situated the Loaita bank, an atoll of the same kind. The
two vessels took formal possession of the main island…. …The Alerte for its part visited
318
M. Chemillier‐Gendreau, note 15 supra, at pp. 116, 118, Annex 35 (Telegram from Ministry of Foreign Affairs,
Nanking, 8 March 1947), Annex 36 (Wire from Agence France Presse, Nanking, of 31 May 1947 and telegram of 3
June 1947) and Annex 42 (Note of 15 May 1950 from the Directorate for Asia‐Oceania).
319
Id., Annex 11 (Internal Ministry of Foreign Affairs Note of 25 May 1950, addressed to the Directorate for Asia by
the Legal Adviser).
320
Nguyen Ba Dien, note 203 supra; see also Historical documents on Vietnam’s sovereignty over Paracel and
321
M. Chemillier‐Gendreau, note 15 supra, at p. 37; see also MFA White Paper (1974); H. Chiu and C. Park, note 42
supra, at p. 8; T. Kelly, note 133 supra; Nguyen Ba Dien, note 203 supra; Historical documents on Vietnam’s
322
Id.
323
M. Chemillier‐Gendreau, note 15 supra, at pp. 38, 97, 111.
324
50
the Thi‐Thu reef, at about 20 miles north of the Loaita bank, and took possession of an
island and of this atoll, still by means of the same ritual. …325
Further north, the Alerte and De Lanessan took possession of the atoll named “North Danger”
and two nearby sandy cayes. The French justified their occupation of the islands on “the need
to construct lighthouses and other navigational aids for the safety of international navigation in
the area…,”326 a reasonable ground for intervention given the unknown hazards to navigation in
the archipelago.
Following the expedition, the French Ministry of Foreign Affairs published a notice in the
French Journal Officiel (July 26, 1933, page 7837):
Notice concerning the occupation of certain islands by French naval units.
The French government has caused the under mentioned isles and islets to be occupied
by French naval units:
1. Spratley Island, situated 8°39' latitude north and 111°55' longitude east of Greenwich,
with its dependent isles (Possession taken April 13, 1930).
2. Islet caye of Amboine, situated at 7°52' latitude north and 112°55' longitude east of
Greenwich, with its dependent isles (Possession taken April 7, 1933).
3. Itu Aba Island situated at latitude 10°2' north and longitude 114°21' east of
Greenwich, with its dependent isles (Possession taken April 10, 1933).
4. Group of two islands [North East Cay and Shira Island] situated at latitude 111°29'
north and longitude 114°21' east of Greenwich, with their dependent isles (Possession
taken April 10, 1933).
5. Loaita Island, situated at latitude 10°42' north and longitude 114°25' east of
Greenwich, with its dependent islands (Possession taken April 12, 1933).
6. Thi Tu Island, situated at latitude 11°7' north and longitude 114°16' east of
Greenwich, with its dependent islands (Possession taken April 12, 1933).
The above‐mentioned isles and islets henceforward come under French sovereignty
(this notice cancels the previous notice inserted in the Official Journal dated July 25,
1933, page 7784).327
By claiming the islands with their “dependent” islets/islands, it was France’s intention to claim
sovereignty over the entire archipelago.328
325
MFA White Paper (1974); see also T. Kelly, note 133 supra; SOUTH CHINA SEA STUDIES (2012), at p. 2; M. Chemillier‐
326
Tao Cheng, note 31 supra, at p. 269.
327
MFA White Paper (1974); see also S. Tønnesson, note 55 supra, at p. 8; H. Roque, note 208 supra, at p. 192;
SOUTH CHINA SEA STUDIES (2012), at p. 2; T. Kelly, note 133 supra; M. Chemillier‐Gendreau, note 15 supra, at pp. 38,
111.
51
France also provided notice of the occupation to China, Great Britain (Borneo, Brunei,
and Malaya), Japan, the Netherlands (Indonesia), and the United States (the Philippines)
between July and September 1933. The United States remained silent on the issue, as did the
Netherlands.329 After several exchanges with the French, Great Britain determined that it did
not have “title to Spratly Island because inter alia there had never been any formal annexation
or any open display of sovereignty and that…discovery giving at most only an inchoate title
would be insufficient ….”330
China and Japan, on the other hand, purportedly questioned the French occupation.
China reportedly protested the French action in July and August of 1933, stating that the
Spratlys were sovereign Chinese territory.331 Vietnam denies that these diplomatic exchanges
occurred. Japan protested France’s actions, arguing that 12 of the Spratly Islands were Japanese
territory based on discovery in 1920 and economic exploitation of the islands by a Japanese
fertilizer company.332 Six years later, in late March 1939, Japan announced that it was placing
the Spratly Islands under the administrative jurisdiction of Formosa (Taiwan).333 The Japanese
declaration was met with a strong protest from the French government on April 4, 1939,
reaffirming that the Spratlys were part of Annam (Vietnam).334 Annamese militia was
additionally deployed to counter a Japanese deployment of Formosan militia that had
established a camp in the Spratlys, and a French warship on patrol in the South China Sea called
on the Spratlys.335 Two years later, Japan invaded the Spratlys and forcibly occupied the
archipelago.336
Following the announced annexation of the Spratlys in July 1933, a headquarters for the
French administrative office and guard detachment for the archipelago was established on Itu
Aba Island. In December 1933, Governor General Pasquier signed Decree No. 4762‐CP (dated
December 21, 1933), assigning the Spratlys to the Cochinchinese province of Bà Ria (French
Indochina).337 A radio station and weather station were subsequently built on Itu Aba by the
328
M. Chemillier‐Gendreau, note 15 supra, at p. 111, 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)).
329
330
Id.; accord Geoffrey Marston, Abandonment of Territorial Claims: The Case of Bouvet and Spratly Island, 57 BRIT.
Y. INT’L L. 337 (1986), at p. 350. See also T. Kelly, note 133 supra; SOUTH CHINA SEA STUDIES (2012), at p. 2; M.
331
Shen II, at p. 144; see also Shen I, at p. 42; H. Chiu and C. Park, note 42 supra, at p. 13; T. Kelly, note 26 supra.
332
Shen I, at p. 42; see also Tao Cheng, note 31 supra, at p. 269; H. Chiu and C. Park, note 42 supra, at p. 12; M.
Katchen, note 120 supra, at p. 1178; M. Bennett, note 14 supra, at p. 437; MFA White Paper (1974); H. Roque,
note 208 supra, at p. 192; T. Kelly, note 133 supra.
333
H. Roque, note 208 supra, at p. 192; see also SOUTH CHINA SEA STUDIES (2012), at p. 2; T. Kelly, note 133 supra.
334
MFA White Paper (1974). See also H. Chiu and C. Park, note 42 supra, at p. 8; T. Kelly, note 133 supra; SOUTH
CHINA SEA STUDIES (2012), at p. 2; M. Chemillier‐Gendreau, note 15 supra, at p. 39, Annex 32 (Note from the Ministry
of Foreign Affairs, Directorate for Political Affairs and Trade, (Asia), 10 August 1940).
335
M. Chemillier‐Gendreau, note 15 supra, Annex 32 (Note from the Ministry of Foreign Affairs, Directorate for
Political Affairs and Trade, (Asia), 10 August 1940).
336
MFA White Paper (1974); see also H. Chiu and C. Park, note 42 supra, at p. 8.
337
MFA White Paper (1974); see also B. Murphy, note 29 supra, at p. 203; H. Chiu and C. Park, note 42 supra, at p.
9; T. Kelly, note 133 supra; SOUTH CHINA SEA STUDIES (2012), at p. 2 (The decree was implemented by the Governor of
Cochinchina, Jean‐Féliz Krautheimer); Nguyen Ba Dien, note 203 supra; Historical documents on Vietnam’s
52
Indochina Meteorological Service in 1938, and operated under French administration until the
Japanese invasion of the island in 1941. The meteorological station was assigned international
code number 48919 and data provided by the station was listed by the World Meteorological
Organization as originating in Cochinchina.338 The French also continued to conduct scientific
surveys in the archipelago—for example, they provided a valuable geographic and aerologic
study of the region in the 22nd Report of the Oceanographic Institute of Indochina (Rapport sur
le fonctionnement de l'Institut Oceanographique de l'Indochine, 22, Note, Saigon 1934).339
France similarly engaged in a series of acts in the Spratlys after the Second World War,
to include diplomatic and military activities, in order to substantiate French sovereignty over
the archipelago until French troops were finally withdrawn from Indochina in August 1956. The
French battleship Chevreud was deployed to the Spratlys in October 1946 to re‐assert French
interests in the archipelago and its crew installed a sovereignty stele on Itu Aba Island.340 When
France learned that Chinese naval units had occupied Itu Aba in November 1946, French
authorities protested the action, demanding that the Nationalist troops withdraw from the
island.341 Similarly, in May 1956, after Tomas Cloma proclaimed his so‐called “Freedomland,”
which encompassed part of the Spratly archipelago, the French Charge d'Affaires in Manila
reminded the Philippine government that the Spratlys had been sovereign French territory
since 1933.342 During the same period, the French Navy vessel Dumont d’Urville was deployed
to Itu Aba in a demonstration of French‐Vietnamese interest in the archipelago.343
Notwithstanding French efforts to maintain control over the archipelago, the Republic of China
sent troops to re‐occupy Itu Aba Island on June 8, 1956, and has maintained a garrison on the
island ever since.
b. Return to South Vietnamese Control

Vietnam slowly began to regain its independence from France after the Second World
War. On March 11, 1945, Emperor Bao Dai declared Vietnam’s independence, but abdicated
five months later on August 19, 1945, in favor of the Revolutionary Government of Ho Chi
Minh, which controlled Tonkin and Annam, but not Cochinchina.344 The following month, on
September 2, 1945, Ho proclaimed Vietnam’s independence and created the Democratic
Republic of Vietnam.345 Subsequently, in March 1946, France signed an agreement with the
Democratic Republic of Vietnam recognizing “the Vietnamese Republic as a Free State having
Nguyen, note 204 supra, at p. 186; M. Chemillier‐Gendreau, note 15 supra, at p. 38, 111, Annex 30 (Decree by the
Governor of Cochin China (J. Krautheimer), Saigon, 21 December 1933).
338
MFA White Paper (1974); see also T. Kelly, note 133 supra; H. Chiu and C. Park, note 42 supra, at p. 9; Nguyen
Ba Dien, note 203 supra; Historical documents on Vietnam’s sovereignty over Paracel and Spratly Islands, note 203
supra; NATIONAL COMMITTEE OF BORDER AFFAIRS White Paper.
339
340
SOUTH CHINA SEA STUDIES (2012), at p. 3; see also T. Kelly, note 133 supra.
341
Id.
342
343
Id.
344
345
Declaration of Independence, Democratic Republic of Vietnam, Sept. 2, 1945, available at
http://www.unc.edu/courses/2009fall/hist/140/006/Documents/VietnameseDocs.pdf.
53
its own government, its own Parliament, its own Army and its own Finances, forming part of the
Indochinese Federation and of the French Union.”346
On June 27, 1947, France established a Provisional Central Government of Vietnam in
Saigon. The Ha Long Bay Agreement was signed on June 5, 1948, allowing for the creation of a
unified State of Vietnam (Tonkin, Annam, and Cochinchina) associated with France within the
French Union (then including Laos and Cambodia).347 According to the MFA, this new State of
Vietnam included both the Paracel and Spratly Islands—recall that in 1932, the Paracels were
designated as an administrative unit of Thua Thien Province (Annam) and in 1933, the Spratlys
were designated as an administrative unit of Bà Ria Province (Cochinchina).348 The following
year, on March 8, 1949, France signed the Élysée Agreement with the State of Vietnam under
Emperor Bao Dai, agreeing to recognize the independence of Vietnam and transferring
administrative power of the state to the Vietnamese government.349 In April, French High
Commissioner Léon Pignon confirmed that France “considered the Paracels to be a crown
dependency of Annam….”350 Later that year, on July 5th, the French government proclaimed the
unification of Tonkin, Annams and Cochinchina into the State of Vietnam within the French
Union.
On October 14, 1950, France formally turned over defense of the Paracels to Republic of
Vietnam forces, with General Phan Van Giao (governor of Central Vietnam) presiding over the
ceremony.351 The following year, Premier Tran Van Huu reaffirmed Vietnamese sovereignty
over the Paracel and Spratly archipelagoes at the San Francisco Peace Conference: “…as we
must frankly profit from all the opportunities offered to us to stifle the germs of discord, we
affirm our right to the Spratly and Paracel Islands, which have always belonged to Vietnam.”352
None of the 51 nations present at the conference, including France, objected to this
statement.353 With the signing of the Geneva Accords in July 1954, France recognized the full
independence of the State of Vietnam.354
The Vietnamese Navy assumed responsibility for the defense of the archipelago in
August 1956. South Vietnamese forces occupied Pattle Island and Robert Island in April and July
1956, respectively.355 That same year, the Department of Mining, Technology, and Small
Industries conducted surveys on Pattle, Money, Robert and Drumond Islands.356 Vietnamese
346
Accord between France and the Democratic Republic of Vietnam, Mar. 6, 1946, reprinted in The Pentagon
Papers, Gravel Edition, Vol. 1, Chap. 1 (Boston: Beacon Press, 1971), at pp. 18‐19.
347
The Pentagon Papers, Gravel Edition, Vol. 1, Chap. 2 (Boston: Beacon Press, 1971).
348
MFA White Paper (1974); see also H. Chiu and C. Park, note 42 supra, pp. 8‐9; B. Murphy, note 29 supra, at p.
203; SOUTH CHINA SEA STUDIES (2012), at p. 2.
349
The Pentagon Papers, Gravel Edition, Vol. 1, Chap. 2 (Boston: Beacon Press, 1971).
350
M. Chemillier‐Gendreau, note 15 supra, at p. 119, Annex 43 (Telegram of 23 April 1949 from Saigon).
351
Id., at pp. 41, 116; MFA White Paper (1974); see also SOUTH CHINA SEA STUDIES (2012), at p. 3.
352
p. 3; T. Kelly, note 133 supra; Nguyen Ba Dien, note 203 supra; Historical documents on Vietnam’s sovereignty over
Paracel and Spratly Islands, note 203 supra; NATIONAL COMMITTEE OF BORDER AFFAIRS White Paper; H. Nguyen, note
204 supra, at p. 187; M. Chemillier‐Gendreau, note 15 supra, at p. 41.
353
Id.; see also B. Murphy, note 29 supra, at pp. 192‐193, 201.
354
The Geneva Accords.
355
356
54
Marines subsequently assumed the defense of the islands in 1957; however, the Vietnamese
Navy continued to regularly patrol the waters around the archipelago “in order to check illegal
occupants on the many islands.”357
French scientists were also granted permission to conduct scientific studies of the
Paracels on behalf of Vietnam, including a number of studies on marine and land shells by
Edmond Saurin:
 Notes sur les iles Paracels (Geologic archives of Vietnam No. 3), Saigon 1955.
 A propos des galets exotiques des iles Paracels (Geologic archives of Vietnam No. 4),
Saigon 1957.
 “Faune Malacologique terrestre des iles Paracels” (Journal de Conchiliologie, Vol.
XCVIII), Paris 1958.
 Gasteropodes marins des iles Paracels, Faculty of Sciences, Saigon, Vol. I: 1960; Vol.
II: 1961.358
A study on the islands’ flora, entitled Contribution de la connaissance de la flore des iles
Paracels (Faculty of Sciences, Saigon 1957), was additionally published in 1957 by French
scientist H. Fontaine, in cooperation with a Vietnamese colleague359 According to the MFA,
“these scientific achievements, accomplished over a long period of time, could only have been
achieved by a country exercising sovereignty over these islands to the fullest extent.”360
Beginning in 1959, defense responsibilities were transferred to the Regional Forces of
Quang Nam Province.361 In February, South Vietnamese forces occupied Duncan Island, evicting
over 80 Chinese fishermen who were living on the island.362 Then, in March, Vietnamese troops
occupied Drummond Island.363
In 1960, the first Vietnamese officials were posted to the Paracels to administer the
islands. Nguyen Ba Thuoc became the first civilian officer appointed by an independent
Vietnam on December 14, 1960 (Arrete No. 241‐13NV/NV/3).364 The following year, the
Paracels were transferred from the jurisdiction of Thua Thien Province back to Quang Nam
Province (Decree No. 174‐NV of July 13, 1961) and given the status of a “Xa” (village of the
mainland).365
357
358
Id.; see also Henri Fontaine, Edmond Saurin (1904‐1977), ASIAN PERSPECTIVES XXIII(1), 1980, pp. 71‐98.
359
360
Id.
361
Id.
362
SOUTH CHINA SEA STUDIES (2012), at p. 3; see also Nguyen Ba Dien, note 203 supra; Historical documents on
White Paper. China claims that the fishermen were illegally abducted by the Vietnamese. Shen I, at pp. 51‐52.
363
Id.
364
365
In 1969, the Paracel Islands became part of the village of Hoa Long, Hoa Vang District, Quang Nam Province
(Decree No. 709‐BNV/HCDP/26 dated October 21, 1969). Id.; see also Shen I, at p. 52; SOUTH CHINA SEA STUDIES
(2012), at p. 3; Nguyen Ba Dien, note 203 supra; H. Nguyen, note 204 supra, at p. 189; Historical documents on
White Paper; M. Chemillier‐Gendreau, note 15 supra, at p. 127.
55
In May 1971, South Vietnamese forces conducted a survey on Triton Island in the
Paracels.366 The Chinese, however, continued to make incursions into the archipelago. As a
result, South Vietnam issued a statement on July 14, 1971, reaffirming its sovereignty over the
archipelago.367
On January 21, 1974, PRC forces invaded the Paracels and ousted the South Vietnamese
garrison occupying the Crescent Group. In February 1974, the Saigon government issued a
lengthy proclamation condemning the Communist Chinese invasion.368 A diplomatic note was
also sent to the signatories of the Paris Peace Accords of 1973,369 calling for a special session of
the Security Council.370 The Provisional Revolutionary Government of South Vietnam likewise
expressed its concern, albeit guarded, over the Chinese invasion of the archipelago indicating
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.”371 Later that year, South Vietnam reaffirmed its sovereignty over the Paracels at
the March meeting of the Economic Commission for the Far East and at the July meeting of the
Third United Nations Conference on the Law of the Sea.372
At the same time it undertook these activities in the Paracels, South Vietnam also began
to exercise sovereignty over the Spratly archipelago as the successor state to French claims
after the French withdrew from Indochina. On June 1, 1956, the Republic of Vietnam’s Ministry
of Foreign Affairs issued a statement confirming Vietnamese sovereignty over the Spratlys after
366
Shen I, at p. 52.
367
SOUTH CHINA SEA STUDIES (2012), at p. 3; M. Chemillier‐Gendreau, note 15 supra, at p. 44.
368
Proclamation by the Government of the Republic of Vietnam:
The noblest and most imperative task of a Government is to defend the sovereignty, independence and territorial
integrity of the Nation. …
In the face of the illegal military occupation by Communist China of the Paracels Archipelago which is an integral
part of the Republic of Vietnam, the Government of the Republic of Vietnam deems it necessary to solemnly
declare before world opinion, to friends and foes alike, that:
The Hoang Sa (Paracel) and Truong Sa (Spratly) archipelagoes are an indivisible part of the territory of the
Republic of Vietnam. The Government and People of the Republic of Vietnam shall not yield to force and
renounce all or part of their sovereignty over those archipelagoes.
As long as one single island of that part of the territory of the Republic of Vietnam is forcibly occupied by
another country, the Government and People of the Republic will continue their struggle to recover their
legitimate rights. …
The Government of the Republic of Vietnam is determined to defend the sovereignty of the Nation over those
islands by all and every means. … Proclamation by the Government of the Republic of Vietnam, Feb. 14, 1974,
available at http://www.nguyenthaihocfoundation.org/lichsuVN/tuyenbo_vnch.htm; see also SOUTH CHINA SEA
STUDIES (2012), at p. 3; H. Nguyen, note 204 supra, at p. 192; Nguyen Ba Dien, note 203 supra; Historical documents
on Vietnam’s sovereignty over Paracel and Spratly Islands, note 203 supra; NATIONAL COMMITTEE OF BORDER AFFAIRS
White Paper; M. Chemillier‐Gendreau, note 15 supra), at p. 127.
369
The signatories of the Agreement on Ending the War and Restoring Peace in Vietnam (Jan. 27, 1973) were the
Democratic Republic of Vietnam (North Vietnam), the Republic of Vietnam (South Vietnam), the Provisional
Revolutionary Government of South Vietnam, and the United States.
370
SOUTH CHINA SEA STUDIES (2012), at p. 3; see also M. Chemillier‐Gendreau, note 15 supra, at p. 45.
371
M. Chemillier‐Gendreau, note 15 supra, at pp. 45 and 128.
372
SOUTH CHINA SEA STUDIES (2012), at p. 3; see also M. Chemillier‐Gendreau, note 15 supra, at pp. 45, 127; T. Kelly,
note 133 supra; Nguyen Ba Dien, note 203 supra; Historical documents on Vietnam’s sovereignty over Paracel and
56
Tomas Cloma proclaimed his so‐called “Freedomland” in the eastern portion of the
archipelago.373 Then, in mid June, Foreign Minister Vu Van Mau reaffirmed his country’s
sovereignty over the island chain, recalling “that five years earlier the head of the Vietnamese
Delegation at the San Francisco Peace Conference had solemnly reaffirmed Vietnamese
sovereignty over the Truong Sa archipelago and that the statement was not challenged by any
participating country, including China and the Philippines.”374 In October, administrative control
of the Spratlys was assigned to Phuoc Tuy Province (Decree No. 143/NV of October 22,
1956).375
Faced with growing Chinese and Filipino incursions into the Spratlys, the South
Vietnamese Navy launched a series of operations to reassert control over the archipelago. In
August 1956, the crew of the cruiser Tuy Dong (HQ‐04) was directed to erect sovereignty steles
and build flag poles to hoist the Vietnamese flag on many of the Spratly Islands.376 In 1961,
crew members from the Vietnamese cruisers Van Kep and Van Don landed on Southwest Cay,
Thitu Island, Loaita Island, and Amboyna Cay to erect sovereignty steles and raise the
Vietnamese flag.377 The cruisers Tuy Dong and Tay Ket engaged in similar activities in 1962 on
Spratly Island and Namyit Island.378 The following year, the sovereignty steles on all of the main
islands in the Spratlys were rebuilt by crew members of the Navy vessels Huong Giang, Chi Lang
and Ky Hoa:
 May 19, 1963, steles on Truong Sa Island (Spratly proper)

 May 20, 1963, steles on An Bang Island (Amboyna Cay)
 May 22, 1963, steles on Thitu and Loaita Islands
 May 24, 1963, steles on Song Tu Dong (North East Cay) and Song Tu Tay (South West
Cay).379
Regular navy patrols of the archipelago continued through 1964,380 although the frequency of
the patrols was significantly reduced after 1963 as a result of the ongoing conflict with North
Vietnam. Between 1960 and 1967, South Vietnamese naval units also conducted a number of
373
Id.; see also B. Dubner, note 29 supra, at p. 311; T. Kelly, note 133 supra.
374
Id.; see also H. Chiu and C. Park, note 42 supra, at p. 9.
375
B. Murphy, note 29 supra), at p. 204; accord B. Dubner, note 29 supra, at p. 311. See also H. Chiu and C. Park,
note 42 supra, at p. 9 (Decree No. 143/NV 2 as reconfirmed and readjusted in 1958 (Decree No. 76/BNV/HC 9 ND
of March 20, 1958) and 1959 (Decree No. 34/NV of January 27, 1959)); T. Kelly, note 133 supra; Nguyen Ba Dien,
note 203 supra; H. Nguyen, note 204 supra, at p. 189; Historical documents on Vietnam’s sovereignty over Paracel
and Spratly Islands, note 203 supra; NATIONAL COMMITTEE OF BORDER AFFAIRS White Paper; M. Chemillier‐Gendreau,
note 15 supra, at pp. 43, 127.
376
MFA White Paper (1974); see also H. Nguyen, note 204 supra, at p. 189 (“…the ROV Navy landed on Spratly
Islands and erected a monument asserting sovereignty on August 22, 1956.”); M. Chemillier‐Gendreau, note 15
supra, at pp. 117, 125.
377
Nguyen, note 204 supra, at p. 189.
378
Id.
379
Id.
380
57
survey and mapping expeditions on 14 of the Spratly Islands features, including Amboyna Cay,
Thitu Island, Loaita Island, and North Danger Reef.381
Continued counterclaims by the other Spratly claimants during the 1970s resulted in
sharp protests by the Saigon government. In April 20, 1971, the MFA delivered a diplomatic
note to the Malaysian government outlining Vietnam’s position in support of its sovereignty
claims to the archipelago.382 Three months later, in a statement issued on July 15, 1971, the
MFA reaffirmed Vietnamese sovereignty over the two island groups.383 In May 1973, Vietnam
conducted surveys on Pagasa Island, Loaita Island and Northeast Cay, and, in July, it occupied
Namyit Island in the Spratlys.384 Also in July, the Ministry of Agricultural Development and
Land’s Institute of Agricultural Research conducted a survey of Namyit Island.385 Subsequently,
on September 6, 1973, the South Vietnamese government transferred administration of
Amboyna Cay and Spratly, Itu Aba, Loaita, Thitu, Namyit, and Sin Cowe Islands to the Phuoc Hai
Commune, Dat Do District, Phuoc Tuy Province (Decree No. 420—BNV/HCDP/26).386 Diplomatic
notes were also delivered to Taiwan (January 29, 1974) and the Philippines (February 12, 1974)
rejecting Taipei’s and Manila’s respective claims to the Spratlys as unfounded.387 Later that
year, South Vietnam reaffirmed its sovereignty over the Spratlys at the March meeting of the
Economic Commission for the Far East and at the July meeting of the Third United Nations
Conference on the Law of the Sea.388
c. Post‐unification Administration
On April 30, 1975, Viet Cong and North Vietnamese troops captured Saigon, bringing an
end to the Vietnam War. The following year, on July 2, 1976, the Democratic Republic of
Vietnam and the Provisional Revolutionary Government of the Republic of South Vietnam (PRG)
merged to form the Socialist Republic of Vietnam (SRV). Following unification of the country,
the SRV inherited the Paracels and Spratlys from the Republic of Vietnam/PRG (South Vietnam)
and continued to assert sovereignty over the two archipelagoes.
North Vietnamese troops replaced the South Vietnamese garrisons on Southwest Cay,
Sand Cay, Sin Cowe Island, Spratly Island and Amboyna Cay in April 1975.389 The following
month, the Vietnamese government incorporated the Paracel and Spratly Islands into the
territory of Vietnam and renamed the archipelagoes Hoang Sa and Truong Sa.390 In March 1976,
381
The Chinese viewed these activities as illegal. Shen I, at p. 52.
382
MFA White Paper (1974); see also T. Kelly, note 133 supra; Nguyen Ba Dien, note 203 supra; Historical
383
384
Id.
385
386
Id.; see also H. Nguyen, note 204 supra, at p. 189; M. Chemillier‐Gendreau, note 15 supra, at pp. 44 and 127.
387
388
389
Shen I, at p. 55; see also SOUTH CHINA SEA STUDIES (2012); M. Chemillier‐Gendreau, note 15 supra, at p. 45.
390
Hoang Sa and Truong Sa districts are currently under the jurisdiction of the City of Da Nang and the Province of
Khánh Hoà, respectively. Id.
58
Vietnam incorporated the Spratly Islands into Đồng Nai Province.391 The following year, on May
12, 1977, the government of Vietnam issued a Statement on the Territorial Sea, the Contiguous
Zone, the Exclusive Economic Zone and the Continental Shelf, which stated, in part, that
5. The islands and archipelagoes [i.e., the Spratlys and Paracels], forming an integral part
of the Vietnamese territory and beyond the Vietnamese territorial sea…, have their own
territorial seas, contiguous zones, exclusive economic zones and continental
shelves….392
In September 1982, the Paracels were placed under the administrative control of Quang
Nam‐Da Nang Province.393 Two months later, on November 12th, the government of Vietnam
issued a statement on the territorial sea baselines of Vietnam, which included the Paracel and
Spratly Islands:
(4) The baseline for measuring the breadth of the territorial sea of the Hoang Sa and
Truong Sa Archipelagoes will be determined in a coming instrument in conformity with
paragraph 5 of the 12 May 1977 statement of the Government of the Socialist Republic
of Viet Nam.394
A series of diplomatic protests were issued over the next 30 years to challenge Chinese,
Taiwanese, Filipino, and Malaysian incursions into the Spratlys.395 Additionally, between
February 1987 and July 1989, Vietnamese forces occupied Bo Reef, West Reef, Ladd Reef,
Pigeon Reef, East Reef, Cornwallis South Reef, Collins Reef, Lansdowne Reef, Alison Reef, Petley
Reef, South Reef, Prince of Wales Bank, Bombay Shoal, and Vanguard Bank to counter
continued Chinese forays into the Spratly archipelago.396
391
Shen I, at p. 55.
392
Statement on the Territorial Sea, the Contiguous Zone, the Exclusive Economic Zone and the Continental Shelf of
12 May 1977, available at http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/regionslist.htm; see also M.
393
Additional administrative measures regarding the Paracels were taken in June 1996 (annexed the Paracels into
the city of Da Nang) and April 2007 (establishment of Truong Sa town, Song Tu Tay and Sinh Ton Communes under
Truong Sa District. Nguyen Ba Dien, note 203 supra; Historical documents on Vietnam’s sovereignty over Paracel
394
Statement of 12 November 1982 by the Government of the Socialist Republic of Viet Nam on the Territorial Sea
Baseline of Viet Nam, available at http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/regionslist.htm; see
also M. Chemillier‐Gendreau, note 15 supra, at p. 46.
395
For example, on March 25, 1983, the Vietnamese MFA protested Malaysia’s claim to three of the islands in the
Spratly archipelago (see M. Chemillier‐Gendreau, note 15 supra, at p. 45). More recently, on December 3, 2007,
Vietnam strongly protested China’s decision to establish Sansha City to administer the Spratly and Paracel Islands.
Similarly, on March 12, 2009, Vietnam protested the Philippines’ new archipelagic baselines, which refers so some
of the Spratly Islands as Philippine territory. And on May 8, 2009, Vietnam sent a diplomatic note (No. 86/HC‐2009)
to the UN Secretary‐General rejecting China’s U‐shaped line in the South China Sea (see Nguyen Ba Dien, note 203
supra; Historical documents on Vietnam’s sovereignty over Paracel and Spratly Islands, note 203 supra; NATIONAL
COMMITTEE OF BORDER AFFAIRS White Paper).
396
Shen I, at p. 56; see also T. Kelly, note 133 supra.
59
An economic and scientific complex was constructed in the archipelago in August
397
1989. In addition, Vietnam dispatched “the first organized fishing fleet…to exploit the East
Sea fisheries…” and constructed a series of civilian installations, “…including scientific stations
and lighthouses” on a number of the occupied islets.398
Official acts, decrees, resolutions, laws, diplomatic correspondence, etc., taken by the
SRV since unification of the country have continued to demonstrate sovereignty over both the
Spratly and Paracels Islands. For example, Vietnam’s declaration upon ratifying the United
Nations Convention on the Law of the Sea in 1994 reaffirmed Vietnamese sovereignty over the
disputed archipelagoes:
…The National Assembly reiterates Viet Nam's sovereignty over the Hoang Sa and
Truong Sa archipelagoes and its position to settle those disputes relating to territorial
claims as well as other disputes in the Eastern Sea through peaceful negotiations in the
spirit of equality, mutual respect and understanding, and with due respect of
international law, particularly the 1982 United Nations Convention on the Law of the
Sea….399
Similarly, Vietnam delivered a note verbale to the United Nations in August 1998 protesting
China’s 1998 Law on the Exclusive Economic Zone and the Continental Shelf of the People’s
Republic of China, which provides, in part:
…On this occasion, we would like to reiterate that Viet Nam has indisputable
sovereignty over the two archipelagoes, namely…Paracels and…Spratlys, and possesses
sufficient historical evidence as well as legal grounds to assert its sovereignty over these
two archipelagoes. …400
Vietnam’s responses to Chinese and Filipino protests regarding its submission to the UN
Commission on the Limits of the Continental Shelf claiming an extended continental shelf in the
South China Sea, likewise reiterate Vietnamese sovereignty over the Spratly and Paracel Islands:
…The…Paracels and…Spratlys archipelagoes are parts of Viet Nam’s territory. Viet Nam
has indisputable sovereignty over these archipelagoes. China’s claim over the islands
and adjacent waters in the…South China Sea as manifested in the [nine‐dashed line]
map attached with the Notes Verbale CLM/17/2009 and CLM/18/2009 has no legal,
historical or factual basis, therefore is null and void. …401
397
398
399
Socialist Republic of Vietnam Declaration upon Ratification of UNCLOS, July 25, 1994, available at
http://www.un.org/Depts/los/convention_agreements/convention_declarations.htm.
400
Viet Nam: Dispute regarding the Law on the Exclusive Economic Zone and the Continental Shelf of the People’s
Republic of China which was passed on 26 June 1998, reprinted in UN LAW OF THE SEA BULL., No. 38, 1998, at p. 55.
401
Note Verbale No. 86/HC‐2009, May 8, 2009, available at
http://www.un.org/depts/los/clcs_new/clcs_home.htm.
60
…Viet Nam wishes to take this opportunity to reaffirm its consistent position that Viet
Nam has indisputable sovereignty over the…Paracels and…Spratlys archipelagoes.402
…Paracel and…Spratly Archipelagoes are integral parts of Vietnamese territory. Viet

Nam has sufficient historical evidences and legal foundation to assert her sovereignty
over these two archipelagoes. …403
More recently, Article 1 of the 2012 Law of the Sea specifically provides that the new law
applies, inter alia, to “the Paracel and Spratly archipelagos….”404 According to the MFA, these
actions clearly reflect an intent on the part of Vietnam to retain sovereignty over the South
China Sea islands.
4. Right of Cession
Vietnam’s claim of sovereignty over the South China Sea islands is based, in part, on the
right of cession from the French claims to the two archipelagoes in the 1930s.405 International
law recognizes that a state may cede sovereignty over a particular territory to another state.406
Vietnam claims that France validly exercised sovereignty over the South China Sea islands in the
1930s, and that France ceded the islands to Vietnam (South Vietnam) after it became an
independent state. As a result, the SRV has an indisputable claim to the islands by right of
cession.407
The MFA claims that, as early as 1634, the Journal of Batavia, published by the Dutch
East Indies Company, recognized Vietnamese sovereignty over the Paracel Islands.408
Portuguese and Dutch maps from the early 17th century likewise identify the islands as
Vietnamese territory.409
Further evidence of foreign recognition of Vietnamese claims to the Paracels can also be
found in documents from the 18th century. According to the MFA, in 1701, a Western
missionary on board the French ship Amphitrite recorded in Mystere des atolls—Journal de
voyage aux Paracels (Mystery of the atolls—Journal of the voyage to the Paracel Islands) that
“the Paracel is an archipelago belonging to the Kingdom of An Nam.”410 Similarly, a 1768 note
written by French Admiral Charles Henri d’Estaing to M. de la Borde following the admiral’s
402
Note Verbale No. 240/HC‐2009, Aug. 18, 2009, available at
403
404
Law of the Sea of Viet Nam, Law No. 18/2012/QH13, June 21, 2012, available at http://vbqppl.mpi.gov.vn/en‐
us/Pages/default.aspx?itemId=f3ce9fdd‐4e38‐4a45‐a2fd‐d94999684dfa&list=documentDetail.
405
Vietnam also claims sovereignty over the islands based on discovery and effective occupation. B. Murphy, note
29 supra, at p. 203.
406
BROWNLIE 217 (8th ed.).
407
B. Murphy, note 29 supra, at p. 198.
408
Id.
409
410
61
aborted raid against the city of Huế recorded that Vietnamese naval “vessels frequently cruised
between the Paracels and the coast and thus would have reported…his approach…” to the
city.411 A subsequent memoire from Admiral d’Estaing to M. de Magon in 1759 indicated that
the cannons emplaced on the walls of Lord Vo Vuong’s palace had been taken from ships
wrecked on the Paracels.412
According to the MFA, Western writings from the 19th century continued to recognize
Vietnam’s control of the Paracels. A book written by John Barrow in 1806—A Voyage to
Cochinchina—documents the travels of Count George Macartney—the British Envoy to the
Chinese Court—in Cochinchina in 1793. The book contains a detailed description of the “types
of boats used by the Cochinchinese in order to reach…the Paracel Islands where they collected
trepang and swallow nests.”413 Additionally, a book by French missionary Monseigneur Jean‐
Louis Taberd published in 1837—Note on the Geography of Cochinchina—described the Paracel
Islands as part of Cochinchina and that Cochinchines referred to the Paracels as “Cat Vang.”414 A
second book published by Taberd in 1838—History and Description of the Religion, Customs,
and Morals of All Peoples—likewise recorded that the Paracels had been a dependency of
Cochinchina for 34 years.415 A depiction of the Paracels as Vietnamese territory also appears in
Taberd’s 1838 An Nam Dai Quoc Hoa Do (Tabula Geographica Imperii Annamitici—The Map of
the An nam Empire) and an 1862 “geography book written under the auspices of the (French)
Ethnography Society”—Tableau de la Cochinchine.416 Similarly, French naval officer Jean‐
Baptiste Chaigneau’s memoires (Memoires sur la Cochinchina) refer to Emperor Gia‐long’s
annexation of the Paracels in 1816.417
A reference to the Paracels as Vietnamese territory can also be found in Japon, Indo‐
Chine, Empire Birman (ou Ava), Siam, Annam (ou Cochinchine), Pèninsule Malaise, etc., Ceylan
by Adolphe Philibert Dubois de Jancigny.418 Additionally, in his 1849 article Geography of the
Cochinchinese Empire, German missionary Karl Gützlaff “defined the Paracels as part of
Vietnam’s territory and noted the islands with the Vietnamese name ‘Cat Vang’.”419 Gützlaff
additionally noted that the government of Annam kept revenue cutters and a small garrison on
the Paracels to collect duty on all visitors to the archipelago, “and to ensure protection of its
411
Id.
412
Id.
413
Id.
414
Islands, note 203 supra; NATIONAL COMMITTEE OF BORDER AFFAIRS White Paper; H. Nguyen, note 204 supra, p. 177.
415
416
417
H. Chiu and C. Park, note 42 supra, at p. 7 (“Cochinchina, the sovereign of which has today the title of Emperor,
is composed of Cochinchina proper, Tonquin, a part of the Kingdom of Cambodia, some uninhabited islands not far
from the coast and the Paracels archipelago, composed of uninhabited reefs and rocks. It is only in 1816 that the
present Emperor took possession of this archipelago.”); see also Nguyen Ba Dien, note 203 supra; Historical
BORDER AFFAIRS White Paper; H. Nguyen, note 204 supra, at p. 183; M. Chemillier‐Gendreau, note 15 supra, at p. 69.
418
419
62
own fishermen.”420 Aldriano Balbi’s The Italian Compendium of Geography (1850) likewise
includes the Paracel, Pirate ( Hà Tiên), and Puolo Condor (Côn Sơn) Islands within the Kingdom
of Annam.421
The MFA additionally claims that the Japanese government tacitly acknowledged French
sovereignty over the Paracels in 1927 after a dispute arose between France and Japan over the
Spratly Islands. According to a letter written by the Governor General of Indochina to the
Minister for the Colonies on March 20, 1930, the Japanese Counsel General in Hanoi (Mr.
Kurosawa) was instructed by his government to unofficially inquire of the French authorities
about the status of several groups of islands in the South China Sea. The Paracels, however,
were explicitly excluded from the discussions by the Japanese because the ownership of the
Paracel Islands was not in dispute with France.422
According to the MFA and some Western scholars, Chinese authors and old Chinese
geographical documents describing the limits of the Chinese Empire confirm the accuracy of
these Western writings. In 1730, Hai Lu wrote in Hai Quoc Do Chi that “…Truong Sa…forms a
rampart on the periphery of the Kingdom of Annam (Vietnam).”423 A 1731 map of Kwangtung
(Guangdong) Province and a description of the Quiongzhou Prefecture do not mention either
the Paracels or the Spratlys.424 This omission is confirmed in Hoang Chao’s 1894 Map of the
Unified Empire, which shows Chinese territory as extending only as far as Hainan Island.425
Twentieth century Chinese writings also confirm that Hainan Island was the southernmost point
of Chinese territory. The 1906 Zhongguo Dilixue Jiaokeshu (Manual of Geography of China)
states in the Generalities chapter “that the Chinese territory is bound in the South at North
latitude 18°13', the terminus being the coast of Yazhou, island of Hainan.”426 A similar record is
found in Li Hanzhung’s Geography of Guandong published in 1909: “Today the maritime
frontiers are limited in the South by the island of Hainan….”427
Following France’s annexation of Spratly Island in 1930, the British Foreign Office
determined in 1932 that the United Kingdom did not have “title to Spratly Island because inter
alia there had never been any formal annexation or any open display of sovereignty and that, in
420
H. Nguyen, note 204 supra, at p. 182 (“We should…mention here the Paracels. …From time immemorial, junks
in large number from Hainan, have annually visited these shoals, and proceeded in their excursions as far as the
coast of Borneo. …The Annam government, perceiving the advantages which it might derive if a toll were raised,
keeps revenue cutters and a small garrison on the spot to collect the duty on all visitors, and to ensure protection
of its own fishermen.”).
421
422
MFA White Paper (1974); accord M. Chemillier‐Gendreau, note 15 supra, 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) (“…in
1927...[the Japanese Government] requested its Consul General in Hanoi to make an unofficial approach on the
islands in the South 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.”).
423
H. Nguyen, note 204 supra, at p. 171; see also M. Chemillier‐Gendreau, note 15 supra, at p. 74.
424
425
Id., at p. 75.
426
H. Nguyen, note 204 supra, at p. 171; see also M. Chemillier‐Gendreau, note 15 supra, at p. 75.
427
63
default of this, discovery giving at most only an inchoate title would be insufficient ….”428
Subsequently, during the negotiations of the San Francisco Peace Treaty, the Foreign Office
indicated in 1947 that the United Kingdom was “not prepared to contest the French claim to
sovereignty [to the Spratly Islands] which is considered to be good in law.”429 Australia likewise
supported the French position.430
V. CONCLUDING ANALYSIS
A. Evaluation of China’s Position
China argues that its claims to the South China Sea islands are valid based on its
extensive and continuous display of authority over the archipelagoes following their discovery
during the Han Dynasty. China’s discovery of the islands vested it with an inchoate title, which
China perfected by its repeated exercise of authority over the archipelagoes throughout
history. These extensive activities, which include government‐sponsored exploitation of the
islands, repeated naval patrols to the region, and numerous scientific surveys of the islands,
demonstrate effective administrative control and sovereignty over the South China Sea islands.
1. Discovery versus Awareness

China claims to have been the first nation to discover the South China Sea islands as
early as the Han Dynasty (206 BC‐220 AD). To support its claim, China cites a number of ancient
books and maps that allegedly describe the geographic features of the Spratlys and Paracels
and place the disputed islands within the maritime boundaries of the Chinese empire.
Some Western scholars agree that there is considerable historical evidence to support
China’s claims to the South China Sea islands, citing the use of the islands by Chinese fishermen
and the mapping and naming of the islands, as well as China’s expressed intent not to abandon
title to the islands.431 Vietnamese and most Western scholars, however, disagree with this
position, indicating that China’s historical evidence and isolated and sporadic contact by
Chinese fishermen are insufficient to establish sovereignty over the South China Sea islands
under international law, and that the validity of China’s claim is therefore “subject to doubt.”432
428
G. Marston, note 330 supra, at p. 350. Beginning in 1934, Spratly Island and Amboyna Cay were no longer
mentioned in the British Colonial Office List. S. Tønnesson, note 55 supra, at p. 7. See also M. Chemillier‐Gendreau,
429
G. Marston, note 330 supra, at p. 355.
430
431
J. Greenfield, note 149 supra , at pp. 29, 32 (“…for many centuries, ...Chinese fishermen used these islands as
landing posts and they were mapped. China has also continuously expressed its intention not to abandon its title
to the islands. …There are collections of old maps, not all Chinese, which would bear out Chinese historic links to
the islands, in terms of discovery, exploration and naming of the islands. …China, therefore, has quite strong
historical arguments in its favour. China’s modern (post‐1945) presence in the South China Sea is therefore
regarded by it as a consistent reiteration of historic rights.”); see also Jeanette Greenfield, China’s Practice in the
Law of the Sea (Oxford 1992), at p. 158.
432
M. Bennett, note 14 supra, at pp. 434‐435, 446; accord C. Joyner, note 166 supra, at p. 59;, H. Roque, note 208
supra , at p. 195 (“A major obstacle to a statement of China’s legal title to the Spratlys is the dearth of primary
sources and official documents detailing such legal basis.”) and p. 197 (“The Chinese position has since been
64
Whether Chinese navigators actually charted the South China Sea as claimed is
questionable given that Chinese mariners traditionally used the inner sea routes along the
coasts of Hainan Island and mainland Vietnam. However, even if true, this action does not
demonstrate China’s effective administration and control of the South China Sea islands.
General awareness of the location and existence of the Spratly and Paracel Islands by Chinese
mariners is insufficient to demonstrate that China actually “discovered” the islands in a legal
sense.433 Undoubtedly, as evidenced by both Chinese and Vietnamese historical records,
geographers and navigators from various lands were aware of the presence of the islands.434
However, when determining sovereignty over territory, international law makes a clear
distinction “between the concept of geographical awareness and that of discovery, their legal
effects being fundamentally different.”435
…[A]n 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 effect.436
Accordingly, most of the works cited by China in support of its claims fall into the category of
documents that “merely prove a general knowledge of the area, but are not useful to the legal
argument.”437
Moreover, the historical evidence provided by China to justify its claims not only is
unconvincing but also contains a number of flaws and contradictions. Ancient Asian empires did
not exercise sovereignty over territory, but rather were characterized by undefined and
changing borders. Thus, the concept of effective occupation did not exist in the Confucian legal
system applicable in China until the 1900s. Chinese emperors ruled over persons, not territory,
expounded on by scholars of Chinese descent and whose objectively is suspect.”); Hong Thao Nguyen, Vietnam’s
Position on the Sovereignty over the Paracels & Spratlys: Its Maritime Claims, J. EAST ASIA INT’L L., V JEAIL (1) 2012,
May 4, 2012, at p. 170 (“…the sources are geographical monographs, references, or nautical books written by
private geographers or navigators, or travel accounts by Chinese ambassadors abroad to describe the countries
outside China. Obviously they are not official historical records of Chinese dynasties.”); Florian Dupuy and Pieere‐
Marie Dupuy, A Legal Analysis of China’s Historic Rights Claim in the South China Sea, AM. J. INT’L L., Vol. 107, No. 1
(Jan. 2013), pp. 124‐141, at pp. 136, 141 (“Mere reliance on alleged historical evidence of the kind invoked by
Chinese commentators is insufficient to establish sovereignty over the waters enclosed by the nine‐dash line or the
islands of the South China Sea.”); SOUTH CHINA SEA STUDIES (2012), at p. 4 (“China asserted that it was the first
country to find the archipelagoes…. This argument, however, is not backed up by official historical documents.
…[M]ost of these documents are travel accounts, monographs, and navigation books demonstrating knowledge of
ancient people about territories belong to not only China but also other countries. Moreover, in these documents,
the territories which China now claims to be the Paracels and Spratlys are named inconsistently, thus there are no
convincing arguments that those territories are really the Paracels and Spratlys.”).
433
434
Id.
435
Id.
436
Id., at p. 56.
437
Id., at pp. 59‐60.
65
and maritime boundaries were nonexistent.438 As noted by Professor Mohan Malik of the Asia‐
Pacific Center for Security Studies,
China’s claim to the Spratlys on the basis of history runs aground on the fact that the
region’s past empires did not exercise sovereignty. In pre‐modern Asia, empires were
characterized by undefined, unprotected, and often changing frontiers. The notion of
suzerainty prevailed.439
“Suzerainty” occurs where a dominant state—in this case China—controls the foreign
relations of a vassal state—Vietnam—but allows the vassal state to exercise sovereign authority
in its internal affairs.440 According to Professor Malik, unlike nation‐states, “the frontiers of
Chinese empires were neither carefully drawn nor policed but were more like circles or zones,
tapering off from the center of civilization to the undefined periphery of alien barbarians.”441
Moreover, “in its territorial disputes with neighboring India, Burma, and Vietnam, Beijing
always took the position that its land boundaries were never defined, demarcated, and
delimited.”442
China appears to take the opposite position with regard to its territorial disputes in the
South China Sea. “China’s claim that its land boundaries were historically never defined and
delimited [therefore] stands in sharp contrast with…” China’s position that its “maritime
boundaries were always clearly defined and delimited.”443 In Professor Malik’s view, herein lies
the basic contradiction in China’s untenable position regarding its land and maritime
boundaries—in short, “sovereignty is a post‐imperial notion ascribed to nation‐states, not
ancient empires.”444
Professor Stein Tønnesson of the University of Oslo’s Centre for Development and the
Environment reached a similar conclusion about the pre‐modern period evidence used by some
of the South China Sea claimants to support their positions:
First, maritime power was volatile. The hegemony in the South China Sea shifted
between several states. Second, the Spratly and Paracel Islands were mainly seen as a
source of danger. And third, there was not at the time any concept of national
sovereignty. Islands were discovered, described, and to some extent exploited, but they
were not claimed or disputed in a legal sense.445
Similarly, Professor Herminio Roque of the University of the Philippines and Chairman of
the Center for International Law in Manila agrees that it is a non‐sequitur “to say that either
438
See Mohan Malik, Historical Fiction: China’s South China Sea Claims, WORLD AFFAIRS JOURNAL (MAY/JUNE 2013); S.
Tønnesson, note 55 supra, at p. 5; H. Roque, note 208 supra, at p. 204.
439
M. Malik, note 438 supra.
440
“suzerainty.” Merriam‐Webster.com.2014, www.merriam‐webster.com (Jan. 2, 2014).
441
M. Malik, note 438 supra.
442
Id.
443
Id.
444
Id.
445
S. Tønnesson, note 55 supra, at p. 5.
66
China or Vietnam exercised effective occupation of the Spratlys during the pre‐modern
times….”446 According to Professor Roque, the concept of “effective occupation…did not exist in
either of their legal systems” during the pre‐modern era.”447 Professor Roque explains:
The ancient Confucian legal system, applicable to both China and Vietnam until the
1900s, does not have a counterpart…of what is traditionally now known in international
law as “effective occupation.” The concept in Chinese law was that a ruler had
jurisdiction over persons, and not over territory. Sovereignty was a function of social
organisation, history and loyalty of subjects. Territorial jurisdiction was measured in
terms of zones of influence, rather than physical boundaries. Maritime boundaries were
unheard of as sovereignty (over persons) was co‐terminus with the coast. The ocean,
and the islands found therein, were relevant only to navigation, i.e., areas of hazards
which must be avoided. Control over maritime areas was limited to ports and
waterways and merely to guard against smuggling and piracy. Clearly, all these
characterisations of the prevailing law in both countries negate the existence of
effective occupation until recent years when both countries integrated the Western
concept of territorial sovereignty into their respective legal systems.448
Moreover, most Asia experts agree that Chinese mariners “were latecomers to the
South China Sea.”449 It was the ancestors of today’s Indonesians, Malaysians, Filipinos, and
Vietnamese that dominated “the seafaring history of the region at least for the first millennium
of the current era.”450 Malaysian sailors crossed the Indian Ocean 1,000 years before the seven
voyages of Admiral Zheng He in the 15th century.451 And it was the Cham Empire—present‐day
central Vietnam—that dominated South China Sea trade until it was conquered by Vietnam in
the 15th century.452 By comparison, the traditional route used by early Chinese navigators was
the inner passage along the coasts of Hainan Island and Annam (mainland Vietnam), not the
outer passage through Macclesfield Bank and the Paracels.453 China’s “discovery” of the two
archipelagoes in a “legal” sense is therefore dubious at best.
2. Probative Value of Historic Maps

China cites a number of historic maps to support its claim that the Paracel and Spratly
Islands have been recognized as Chinese territory since ancient times. Vietnamese and foreign
scholars, however, reject the argument that the Paracels and Spratlys were included within the
Chinese Empire, indicating that early Chinese maps and documents depict Hainan Island
(Qiongzhou) as the southern‐most part of China. Chinese maps and documents cited by
Vietnamese scholars to support their position include, inter alia, the encyclopedia Gǔjīn
446
447
Id., at p. 203.
448
Id., at pp. 203‐204.
449
Philip Bowring, China’s Invented History, THE WALL STREET JOURNAL (OPINION ASIA), June 4, 2012..
450
Id.
451
Id.
452
Id.
453
F. Bonnet, note 223 supra, at p. 13; see also M. Chemillier‐Gendreau, note 15 supra, at p. 61.
67
TúshūJichéng (Complete Atlas on the Past and Present) completed by the Qing Dynasty in 1706;
maps included in the encyclopedia Zhífāng Diăn (Dictionary of Administrative Units),
including Zhífāng Zŏngbùtú (General Map of the Administrative Units, Number 1), Guăngdōng
Jiāngyùtú (Territorial Map of Guăngdōng, Number 157), and Qióngzhōufǔ Jiāngyùtú (Territorial
Map of Qiongzhou Prefecture, Number 167); and Guăngdōng Tōngzhì (Annals of Guăngdōng),
made during the reign of Emperor Jiājìng of the Ming Dynasty (1522–1567).454
Moreover, as Vietnamese and Western scholars correctly point out, international
tribunals have treated maps with a considerable degree of caution and have consistently held
that maps, particularly those submitted by the parties to a dispute, carry very little probative
weight in determining ownership of a disputed territory. As stated by the ICJ in the Frontier
Dispute case:
…in international territorial conflicts, maps merely constitute information which varies
in accuracy from case to case; of themselves, and by virtue solely of their existence, they
cannot constitute territorial title, that is, a document endowed by international law with
intrinsic legal force for the purpose of establishing territorial rights.455
An exception to this rule may apply in cases where a map falls “into the category of physical
expressions of the will of the State or States concerned…, for example, when maps are annexed
to an official text of which they form an integral part.”456 However, except in this clearly defined
case, “maps are only extrinsic evidence of varying reliability or unreliability which may be used,
along with other evidence of a circumstantial kind, to establish or reconstitute the real facts.”457
None of the cartographic material cited by China is either part of a legal instrument in
force or part of a boundary treaty concluded between China and Vietnam (or France) and,
therefore, cannot of itself support China’s claim to sovereignty over the South China Sea
islands.
454
SOUTH CHINA SEA STUDIES (2012), at p. 4.
455
Case Concerning the Frontier Dispute (Burkina Faso/Republic of Mali), I.C.J. Reports 1986, p. 554, at pp. 582‐583.
Accord Island of Palmas Case (Netherlands/U.S.A.), R.I.A.A., Vol. II, p. 829 (1928), p. 831, at pp. 852‐854, available
at http://legal.un.org/riaa/vol_II.htm; Case Concerning Kasikili/Sedudu Island (Botswana/Namibia), I.C.J. Reports
1999, p. 1045, at pp. 1096‐1100; Case Concerning Sovereignty over Pulau Ligitan and Pulau Sipadan
(Indonesia/Malaysia), I.C.J. Reports 2002, p. 625, at pp. 666‐668; Case Concerning the Frontier Dispute
(Benin/Niger), I.C.J. Reports 2005, p. 90, at pp. 117‐120; Case Concerning Territorial and Maritime Dispute Between
Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), I.C.J. Reports 2007, p. 659, at pp. 722‐724.
See also F. Dupuy and P. Dupuy, note 432 supra, at pp. 133‐134.
456
Id.
457
Id. (“[M]aps can…have no greater legal value than that of corroborative evidence endorsing a conclusion at
which the court has arrived by other means unconnected with the maps. In consequence, except when the maps
are in the category of a physical expression of the will of the State, they cannot in themselves alone be treated as
evidence of a frontier, since in that event they would form an irrebuttable presumption, tantamount in fact to
legal title. The only value they possess is as evidence of an auxiliary or confirmatory kind, and this also means that
they cannot be given the character of a rebuttable…presumption such as to effect a reversal of the onus of proof.”)
Other factors that the Court may take into consideration when determining the probative weight to be given to a
map “relate to the neutrality of their sources towards the dispute in question and the parties to that dispute.” Id.
68
3. Inchoate Title and Effective Occupation
Even if China did discover the South China Sea islands as claimed, international tribunals
have uniformly held that discovery alone, without subsequent acts of effective occupation,
does not confer title to territory. In the Island of Palmas case, the Permanent Court of
Arbitration held that “an inchoate title of discovery must be completed within a reasonable
period by effective occupation of the region claimed to be discovered.”458 Effective occupation
“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.”459 Furthermore, an inchoate
title cannot “…prevail over the continuous and peaceful display of authority by another State;
for such display may prevail even over a prior, definite title put forward by another State.”460
China claims that it has maintained a peaceful and continuous display of authority over
the South China Sea islands since at least the 14th century. According to a number of
international scholars, however, “the records supporting this claim are sparse and
unconvincing.”461
For the most part, China relies on records showing that Chinese fishermen from Hainan
Island sporadically lived on some of the Spratly Islands for short periods of time while they were
engaged in fishing activities in the region. China likewise traces its economic exploitation of the
archipelagoes to these non‐state‐sponsored fishing activities, although it claims that later
exploitation activities were organized and approved by the Chinese government. As further
evidence of its effective administration of the archipelagoes, Beijing additionally cites: the
presence of naval patrols in the South China Sea; search and rescue operations; construction of
meteorological installations, lighthouses and radio stations; and scientific, hydrographic and
topographic surveys of the islands and their surrounding waters. A careful review of China’s
position reveals that there is simply no credible evidence of peaceful and continuous
occupation of or display of authority over the islands by the Chinese government that is
necessary to confer sovereignty under prevailing international law.462
Under prevailing international law, as articulated by the ICJ in the Fisheries Case, when
determining issues of territorial sovereignty, “the independent activity of private individuals is
of little value unless it can be shown that they have acted in pursuance of a licence or some
other authority received from their Governments or that in some other way their Governments
458
Island of Palmas Case (Netherlands/U.S.A.), U.N. Rep., Vol. II, p. 829 (1928), p. 831, at p. 846.
459
Legal Status of Eastern Greenland Case (Denmark v. Norway), P.C.I.J., Series A/B, No. 53 (1933), at pp. 45‐46.
See also J. Greenfield, note 149 supra., at p. 30 (“If China were to rely on its original discovery of the islands,
modern law also requires that an inchoate title of discovery must be completed within a reasonable period by the
effective occupation of the region claimed to be discovered.”).
460
Island of Palmas Case (Netherlands/U.S.A.), R.I.A.A., Vol. II, p. 829 (1928), at p. 846.
461
B. Murphy, note 29 supra, at p. 201. Accord M. Bennett, note 14 supra, at pp. 435 and 446; C. Joyner, note 166
supra, at p. 59; M. Chemillier‐Gendreau, note 15 supra, at pp. 56‐64, 73‐74; H. Roque, note 208 supra, at p. 202.
462
B. Murphy, note 29 supra, at pp. 201‐202; accord M. Bennett, note 14 supra, at pp. 446 (“Although Chinese
fishermen…may have been the first occupants of the Spratlys, there is no evidence of the type of effective
authority over the islands required to confer sovereignty under the prevailing international law standard.”); SOUTH
CHINA SEA STUDIES (2012) (“…Chinese fishermen’s early presence was merely private/individual activities and thus
cannot constitute effective occupation by a State as required by international law.”); H. Nguyen, note 204 supra, at
p. 169 (“Occupation by private individuals will not create a title for their country.”).
69
have asserted jurisdiction through them.”463 Thus, acts by private individuals do not qualify as
“state” action unless they are immediately followed up or sanctioned by government
authorities. As the ICJ observed in the Pulau Ligitan and Pulau Sipadan case, “activities by
private persons cannot be seen as effectivités if they do not take place on the basis of official
regulations or under governmental authority.”464
There is absolutely no credible evidence that the private, non‐proprietary acts of a few
Chinese fishermen were taken at the behest of, or were subsequently sanctioned by, Chinese
authorities. Thus, the private activities relied upon by China do not constitute acts á titre de
souverain, reflecting the intention and will to act as a sovereign.465 In a similar situation, the
arbitrator in the Aves Island case determined that
[Translation] 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.466
Accordingly, the fact that Chinese fishermen temporarily lived on some of the South
China Sea islands for short periods of time does not constitute the effective occupation or
administration by a state that is required to confer sovereignty under international law. This
conclusion is supported by a secret report prepared by the Chinese military in 1933, which
indicated that there is no “evidence of any Chinese administration, the presence of an official
representative of China, or Chinese equipment and infrastructure. …[W]e…have never done
anything on these islands.”467
Although China acknowledges that early Chinese economic development of the South
China Sea islands was not state sponsored, it asserts that, beginning with the Qing Dynasty in
1910, subsequent activities in the archipelagoes were organized with the approval and support
of the Chinese government. Government involvement was expanded by the Republic of China
(1912‐1949) and later by the People’s Republic of China (PRC). Government activities included
such things as the collection of taxes and fees from Chinese fishermen and granting licenses to
Chinese merchants to develop and exploit the islands.
463
Fisheries Case (United Kingdom v. Norway), I.C.J. Reports 1951, p. 116, at p. 184.
464
Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, I.C.J. Reports 2002, p. 625,
at p. 683; see also M. Chemillier‐Gendreau, note 15 supra, at p. 54.
465
at p. 683.
466
Arbitral award relating to the issue of control and sovereignty over Aves island, raised between Venezuela and
the Kingdom of the Netherlands, 30 June 1865, R.I.A.A., Vol. XXVIII, pp. 115‐124, at p. 122. [Original text:
Considérant que, s’il est bien établi que les habitants de Saint‐Eustache, possession néerlandaise vont pêcher des
tortues et cueillir des œufs à l’île d’Aves, ce fait ne peut pas servir d’appui au droit de souveraineté, car il implique
seulement une occupation temporaire et précaire de l’île, étant donné qu’il n’est pas, en l’espèce, la manifestation
d’un droit exclusif, mais la conséquence de l’abandon de la pêche par les habitants des contrées voisines ou par son
maître légitime.]
467
F. Bonnet, note 223 supra, at p. 17.
70
Whether these activities actually occurred is open to question, as no independent
evidence has been provided to corroborate that the Chinese government engaged in such
activities.468 Moreover, even if true, virtually all of the examples cited by Chinese scholars
involve economic exploitation of the Paracels and occurred nearly 250 years after the
Vietnamese government authorized and organized the systematic exploitation of the Paracels,
and, to a lesser degree, the Spratlys (e.g., Hoang Sa Company). Additionally, the absence of
documented government administration in the Spratlys prior to the founding of the PRC in
1949 undercuts China’s claims that it effectively administered, and has indisputable sovereignty
over, both of the South China Sea islands groups.
It is also interesting to note that many of the ancient works cited by scholars to support
China’s position link the South China Sea islands to the southern barbarian nations (present day
Vietnam). These works describe the exploitation of the islands by the southern barbarians in
order to pay “tributes” to the rulers of the various Chinese dynasties. This linkage “strongly
suggests that…[the Spratlys and Paracels] did not belong to China.”469 Moreover, the payment
of tributes by Vietnam clearly cuts against the MFA’s argument that China was the first nation
to discover, occupy, and exploit the South China Sea islands. By acknowledging that the Nguyen
emperors occupied and exploited the Paracels, albeit to pay tributes to their protectorate state,
China implicitly admits that it neither physically possessed or controlled the Paracels, nor
intended to act as a sovereign over the islets—both of which are required to demonstrate
sovereignty over territory under international law.470
Evidence of China’s alleged naval patrols to the South China Sea, at best, demonstrates
nothing more than a general awareness of the existence of the South China Sea islands. There is
no evidence in any of the documents cited by the Chinese government or scholars that reflects
that China actually occupied or administered the islands during these patrols. In addition, Asia
experts question the early naval exploits touted by the MFA and Chinese scholars. With the
exception of the seven voyages of Admiral Zheng He,
Chinese navigators were not brave mariners who named and took control of the islands
and reefs of the South China Sea, as depicted by the present Chinese scholars. These
mariners feared the high seas and simply followed the traditional routes along the coast
of Hainan and Vietnam (Annam) (or the inner passage…).471
Foreign mariners, on the other hand, used the outer passage through Macclesfield Bank, which
the Chinese called “Hong Mao Qian” (the bank of the barbarians with red hair)—the Chinese
translation of “‘Banc des Anglais (English Bank]’, which appeared on French maps before it was
renamed Macclesfield” after the first British ship that discovered the bank.472 References to the
bank by Chinese authors during the mid‐19th century, in works such as Wang Wen Tai’s Hong
468
But see Shen II, at pp. 131‐132.
469
H. Nguyen, note 204 supra, at p. 171. A “tribute” is defined in the Oxford dictionary as a “historical payment
made periodically by one state or ruler to another, especially as a sign of dependence.”
470
The Minquiers and Ecrehos case, Judgment of November 17th, 1953: I.C.J. Reports 1953, p. 47.
471
F. Bonnet, note 223 supra, at p. 13; see also M. Chemillier‐Gendreau, note 15 supra, at p. 61‐62; P. Bowring,
note 449 supra.
472
71
mao fan ying ji li kao lue (To Study the Foreigners 1843), were “simply the result of interviews of
European mariners and consultation of foreign charts.”473 Moreover, the fact that Macclesfield
Bank “did not have a Chinese name and was outside the traditional route of the Chinese
navigators…” refutes China’s claim of discovery.474
Vietnamese and Western scholars also downplay the importance of the astronomical
observations taken by Guō Shoujing in the Paracels in 1279, asserting that Guō’s observations
“were only astronomical research activities” and can therefore not be used by China to
“legitimize any sovereignty status over the territories from which the observations were
made.”475 Similarly, Western scholars question whether an expeditionary force under the
command of Shi Bi was actually dispatched to Java in 1292. The invasion force allegedly sailed
through the Paracel and Spratly Islands.476 However, Western scholars note that the route of
the invasion force and the islands recorded in the Yuan Shi are unclear.477 Moreover, the text is
devoid of any reference to territorial control of the two archipelagoes by Chinese authorities.478
Some Vietnamese and Western scholars likewise argue that “the historical evidence
used by China to support its claim is insufficient and weak according to international law”
because it fails to “demonstrate any occupation, effective administration, or sovereignty.”479
The Song Dynasty naval patrols to the Paracels, recorded in Wǔjīng Zŏngyào (Military General
Records), do not demonstrate any Chinese possession of the archipelago, but rather simply
reflect Chinese awareness of the islands.480 Moreover, Chinese naval patrols beyond Hainan
“could only be considered as speculation.”481 According to some Western scholars, the naval
missions recorded in the Wǔjīng Zŏngyào (Military General Records) did not actually go to the
Paracels, but rather were geographical reconnaissance expeditions to the Indian Ocean.482
Similarly, Admiral Wu Sheng’s alleged patrol to the Paracels between 1710 and 1712 “was in
fact a patrol around Hainan Island and did not go as far as the Paracels.”483 This conclusion is
supported by a close reading of the itinerary noted on the map documenting the patrol—
“Departing from Qiongya, he passed by Tong Gu and traversed Qizhouyang and Sigengsha, thus
473
Id.
474
Id.
475
476
Shen II, at pp. 111‐112; see also Shen I, at p. 27; Tao Cheng, note 31 supra, at p. 273; H. Chiu and C. Park, note
42 supra, at p. 10.
477
478
Id.
479
SOUTH CHINA SEA STUDIES (2012), at p. 4; see also H. Nguyen, note 204 supra, at pp. 171‐172 (“…there is no
convincing evidence about China’s state management over these marine features. For a period of two thousand
years until 1909, only four events have been cited by Chinese authors to claim Chinese management. …The events
took place around the Hainan Island. There is neither proof, nor a name directly relating to the Paracels. The
period of one to two hundred years between these events do not support the existence of a continuous, non‐
interrupted period of Chinese management”). Accord M. Chemillier‐Gendreau, note 15 supra, at pp. 60‐61
(Although naval patrols during the Northern Song Dynasty confirm “China’s knowledge of the Paracels, it does not
show that China took possession of them.”).
480
SOUTH CHINA SEA STUDIES (2012), at p. 4; accord Monique Chemillier‐Gendreau, note 15 supra, at pp. 60‐61.
481
482
SOUTH CHINA SEA STUDIES (2012), at p. 4; accord Monique Chemillier‐Gendreau, note 15 supra, at pp. 60‐62.
483
72
covering 3,000 li.”484 Qiougyo (Hoihow) is a small town in the northern part of Hainan Island;
Tong Gu is a mountain located on the north‐east portion of the island; Qizhouyang refers to the
Taya Islands that lie to the north‐east of Hainan; and Sigengsha is a sandbank located to the
west of the island.485
It is also important to note that China’s first purported act of sovereign control in the
Paracels did not occur until 1883, when China “allegedly protested a German survey of the
[Paracel] Islands,”486 although it is questionable whether China, in fact, delivered such a
protest.487 The first verifiable act of Chinese sovereignty over the Paracels did not occur until
1909, when the Qing government deployed three warships and 170 men under the command
of Lee Chun to the Paracels in May to erect markers, raise the Chinese flag, and conduct
cannon‐shooting ceremonies on some of the islands to demonstrate Chinese sovereignty over
the archipelago.488 This event demonstrates, however, that China was uncertain as to its rights
to the Paracels—if the Qing government truly believed that China had indisputable sovereignty
over the islands, it would not have needed to engage in these symbolic acts of sovereignty.489
Moreover, the detachment left the islands within 24 hours and Chinese officials would not
return to the archipelago for another 20 years. 490 Furthermore, the naval deployment was
preceded by an exploratory expedition in April—additional evidence that the Chinese had
limited knowledge of the islands prior to 1909.491
More importantly, these symbolic acts occurred nearly 100 years after Vietnamese
officials, at the direction of Emperor Gia Long, formally took possession of the archipelago and
conducted a flag‐raising ceremony in 1816, and nearly 45 years after Emperor Minh Mang
dispatched a Vietnamese naval unit to build a pagoda and erect sovereignty tablets on some of
the islets in the Paracels.492 China’s demonstration of sovereignty, therefore, took place well
after Vietnam had effectively occupied and administered the islands. In addition, given the
chaotic conditions that ensued following the successful conclusion of the Chinese Revolution in
1911, the abdication of the Qing emperor in February 1912, and the inability of the new
Nationalist government to unite the country for the next 30 years, China was clearly not in a
position politically or militarily “to uphold its claim to…[the Paracels] through effective
occupation and utilization.”493 Under these circumstances, China’s inchoate title, if it existed at
484
485
Id.
486
487
Some Western scholars have determined that this incident is not based on “verifiable references.” M.
Chemillier‐Gendreau, note 15 supra, at p. 99. Additionally, Vietnamese scholars argue that, even if the protest was
made, it “was only a diplomatic action and did not have any legal status as China’s sovereignty had not been
established.” SOUTH CHINA SEA STUDIES (2012), at p. 4.
488
Shen II, at pp. 107 and 135; see also Shen I, at p. 36; Tao Cheng, note 31 supra, at p. 273; M. Chemillier‐
Gendreau, note 15 supra, at pp. 37, 99, Annex 10 (Note of 29 September 1932 from the Legation of the Chinese
Republic in France to the Ministry of Foreign Affairs, Paris), Annex 13 (Note dated 4 May 1909 from Mr Beauvais,
Consulate of France in Canton).
489
490
H. Chiu and C. Park, note 42 supra, at p. 7; see also Shen I, at p. 38; Tao Cheng, note 31 supra, at pp. 273‐274;
491
492
MFA White Paper (1974); see also M. Katchen, note 120 supra, at p. 1178.
493
73
all, cannot “prevail over the continuous and peaceful display of authority by another State [i.e.,
Vietnam]” for over a century.494
Nevertheless, China argues that following the 1911 Revolution, the new government of
Guangdong Province placed the Paracels under the jurisdiction of Ya County (Ya Xian) of Hainan
Province. This decision was reaffirmed by the Southern Military Government in 1921—on
March 30, 1921, the Governor of Guangdong Province annexed the Paracel Islands and placed
them under the jurisdiction of Hainan Island.495 However, according to the Vietnamese MFA,
this action went unnoticed by the international community because it was recorded only in
provincial records and, therefore, Vietnamese and French officials were not in a position to
protest the act because they were unaware that the annexation of the islands had occurred.496
Additionally, the Chinese annexation was not followed up with any physical occupation of the
islands by the provincial government.497 More importantly, any act taken by the Guangdong
government had little legal effect because the Southern Military Government was not
recognized by the central government of China or by any of the Great Powers.498 Based on this
lack of international recognition, when France subsequently learned of the annexation, the
French Legation in China chose to ignore the order, to avoid stirring up Chinese nationalism.
China claims that an interagency committee examined and approved the names for 132
land features in the South China Sea between 1932 and 1935.499 The committee subsequently
depicted these features on the 1935 Zhongguo Nan Hai Ge Daoyu Tu (Map of the Islands in the
South China Sea).500 It should be noted, however, that when the committee began its work in
1932, the Paracels were still considered the southernmost part of China. According to
Vietnamese scholars, a September 1932 diplomatic note from China to France confirmed that
the Paracels “form the southernmost part of Chinese territory.”501 It was not until the
committee completed its work in 1935 that the Spratlys, Macclesfield Bank, and Scarborough
Shoal were included as Chinese territory.502 By that time, France had already occupied the
Paracels and legally annexed the Spratlys as terra nullius.
China’s subsequent illegal occupation of Woody Island (Amphitrite Group) in 1946503
and the entire archipelago in 1974504 violated Article 2(4) of the UN Charter505 and The
494
Island of Palmas Case (Netherlands/U.S.A.), R.I.A.A.U.N. Rep., Vol. II, p. 829 (1928), p. 831, at p. 846.
495
496
497
Id.
498
499
In 1983, the Chinese Toponymy Committee publicized the approved names of 287 islands, reefs, islets, and
shoals on the South China Sea. MFA, The Issue of South China Sea.
500
Id.; see also Shen II, at p. 128 (This was purportedly the first official map published by the Republic of China.);
Shen I, at p. 39; Xu Zhiliang, Li Lixin, Fan Hong, and Zhou Xin, note 104 supra.
501
502
503
Pursuant to General Order Number 1, Japanese forces in Vietnam north of 16° north latitude were instructed to
surrender to Chinese Nationalist forces—“…the senior Japanese commanders and all ground, sea, air and auxiliary
forces within China (excluding Manchuria), Formosa and French Indo‐China north of 16 north latitude shall
surrender to Generalissimo Chiang Kai‐shek….” Supreme Commander for the Allied Powers, General Order No.
One, Sept. 2, 1945. China and France agreed in February 1946 that French troops would relieve Chinese Nationalist
forces stationed in Indochina north of the 16th degree of latitude (which included both the Paracel and Spratly
Islands) no later than March 31, 1946. As an occupation force, the Nationalist troops had a legal obligation to
74
Declaration on Principles of International Law Concerning Friendly Relations and Co‐operation
among States in Accordance with the Charter of the United Nations.506 Accordingly, China’s
illegal occupation in 1946 and subsequent seizure of the Paracels by force in 1974 does not
create a valid legal title to the archipelago under international law.
With regard to the Spratlys, China’s first “verifiable” sovereign act did not occur until
1933 when China allegedly protested France’s annexation of the archipelago,507 although some
scholars question whether China actually filed the protest.508 However, even if China did
protest the annexation, it did not take steps to evict the French or occupy any of the islands.
The fact that China may have diplomatically challenged France’s annexation does not, without
more, create a title in favor of China over the Spratlys. Nor can China’s protest deprive France’s
occupation of the Spratlys of its character as an effective manifestation of French sovereignty
over the islands.
At the time France annexed and effectively and peacefully occupied the Spratlys in
1933, occupation (conquest) was still a valid method of acquiring territory under the prevailing
international law. Conquest did not become illegal until October 1945, after the entry into force
of the UN Charter. Nationalist China’s occupation of Itu Aba Island in 1946509 and 1956510 and
Communist China’s occupation of several features in the Spratly Islands in 1988511 and 1995,512
therefore, were accomplished in violation of the UN Charter and, like China’s occupation and
seizure of the Paracels, do not create a valid legal title to the Spratlys under international law.
depart French Indochina by the 31st of March—this they failed to do. Exchange of Letters between China and
France Relating to the Relief of Chinese Troops by French Troops in North Indochina, Chungking, Feb. 28, 1946,
U.N.T.S. Vol. 14, 1948, at p. 151.
504
On January 20, 1974, Chinese forces expelled the South Vietnamese garrison from Pattle Island, the largest
feature in the Crescent Group of the Paracel, after a brief naval and land engagement.
505
Charter of the United Nations, signed June 26, 1945, entered into force Oct. 24, 1945 (Article 2(4) prohibits
member states from using force “against the territorial integrity or political independence of any state….”).
506
UNGA Res. A/RES/25/2625 (Oct. 24, 1970), The Declaration on Principles of International Law Concerning
Friendly Relations and Co‐operation among States in Accordance with the Charter of the United Nations (“…no
territorial acquisition resulting from the threat or use of force shall be recognized as legal.”).
507
508
Some Western scholars have determined that this incident is not based on “verifiable references.” M.
Chemillier‐Gendreau, note 15 supra, at p. 99.; accord B. Dubner, note 29 supra, at p. 309; M. Bennett, note 14
supra, at p. 439.
509
See note 743 for a discussion of General Order Number 1. As in the case of the Paracels, Chinese Nationalists
forces occupying Itu Aba Island after WWII failed to withdraw from the island in March 1946, as required by the
Exchange of Letters between China and France Relating to the Relief of Chinese Troops by French Troops in North
Indochina, Chungking, Feb. 28, 1946, U.N.T.S. Vol. 14, 1948, at p. 151.
510
Following Tomas Cloma’s claim to some of the Spratly Islands in 1956, Taiwanese forces returned to Itu Aba
over Vietnamese objection and have maintained a presence on the island ever since.
511
On March 14, 1988, Chinese and Vietnamese naval forces clashed in the vicinity of Johnson South Reef,
resulting in the sinking of several Vietnamese ships and the death of over 70 Vietnamese sailors. Following the
engagement, China occupied six islets in the Spratlys—Cuarteron Reef (Huayang Reef), Eastern Gate Shoal
(Dongmen Reef), Fiery Cross Reef (Yongshu Reef), Gaven Reefs (Nanxun Reef and Xinan Reef), Johnson South Reef
(Chigua Reef), and Subi Reef (Zhubi Reef).
512
China occupied Mischief Reef (Meiji Reef) in 1995 and over the years has constructed a series of structures,
including the installation of military radars and other monitoring equipment, a concrete platform suitable for use
as a helipad, a windmill, and solar panels.
75
In short, China has failed to produce any credible or verifiable evidence that it actually
occupied and continuously displayed authority over the disputed islands. Therefore, even if
China was the first to discover the Paracels and the Spratlys, thereby vesting China with an
inchoate title to the islands, it failed to take final and decisive sovereign action within a
reasonable period of time in order to perfect that title.
a. Remote and Uninhabited Territories

Nonetheless, Chinese scholars argue that, even though contemporary international law
requires that there must be an actual and continuous display of authority to perfect an
inchoate title in normal territorial situations, a less stringent standard should apply to the
Paracels and Spratlys given the “enormous irregularity and abnormality of the South China Sea
islands.”513 These scholars cite both the Island of Palmas and the Eastern Greenland cases to
support their position. If the exception articulated in these cases applies, China would only be
required to demonstrate that it took some symbolic act over the archipelagoes in order to
perfect its sovereignty claims to the islands.
The arbitrator in the Palmas case acknowledged that
Manifestations of territorial sovereignty assume…different forms, according to

conditions of time and place. Although continuous in principle, sovereignty cannot be
exercised in fact at every moment on every point of a territory. The intermittence and
discontinuity compatible with the maintenance of the right necessarily differ according
as inhabited or uninhabited regions are involved….514
Similarly, the court in the Eastern Greenland case admitted that in cases of claims to
sovereignty over areas in thinly populated or unsettled countries, tribunals have “been satisfied
with very little in the way of the actual exercise of sovereign rights, provided that the other
State could not make out a superior claim.”515
Chinese scholars further point out that this exception to the general rule was applied by
the arbitrator in the Clipperton Island case in deciding that France had acquired sovereignty
over an island even though it had not taken any action toward the island for 39 years after
discovering it:
It is beyond doubt that…besides the animus occupandi, the actual, and not the nominal,
taking of possession is a necessary condition of occupation. This taking of possession
consists in the act, or series of acts, by which the occupying state reduces to its
possession the territory in question and takes steps to exercise exclusive authority
there. Strictly speaking, and in ordinary cases, that only takes place when the state
establishes in the territory itself an organization capable of making its laws respected.
…There may also be cases where it is unnecessary to have recourse to this method.
Thus, if a territory, by virtue of the fact that it was completely uninhabited, is, from the
513
Shen II, at p. 155.
514
Island of Palmas Case (Netherlands/U.S.A.), R.I.A.A., Vol. II, p. 829 (1928), p. 831, at p. 840.
515
Legal Status of Eastern Greenland Case (Denmark v. Norway), P.C.I.J., Series A/B, No. 53 (1933), at p. 46. See
also Western Sahara Advisory Opinion, I.C.J. Reports 1975, p. 12, at p. 43.
76
first moment when the occupying state makes its appearance there, at the absolute and
undisputed disposition of that state, from that moment the taking of possession must
be considered as accomplished, and the occupation is thereby completed.516
Chinese scholars argue that a similar situation exists in the South China Sea and that the
exception to the general rule of actual and continuous display of authority should apply to the
Paracel and Spratly islands:
Few territorial features in the world…can more adequately be described as remote

and/or uninhabited than the South China Sea Islands. …Given the high abnormity and
uninhabitability of the South China Sea Islands that China undeniably discovered, it is
clear that the general rule of territorial acquisition does not apply; rather, the exception
to the general rule governs. In other words, China did not, and does not, need to display
such extensive acts of sovereignty as required by the general rule…in order to perfect or
maintain her already established sovereignty over the Xisha and Nansha Islands…. All
that may be required of China under the exception…is to exhibit some form of symbolic
authority over these self‐discovered uninhabitable territories, a test which China has far
more than satisfied over a period of more than two thousand years.517
Although an exception to the general rule of actual and continuous display of authority
exists, it is narrow and China cannot rely on it to substantiate its claim to the South China Sea
islands. First, and foremost, the Clipperton Island case requires some level of state action—i.e.,
“when the occupying state makes its appearance there, at the absolute and undisputed
disposition of that state (emphasis added).” Isolated and sporadic contact with the islands by
private individuals does not qualify as “state” action. Acts by private individuals will only be
considered as relevant by a tribunal when they are immediately followed up or sanctioned by
government authorities.518 In the instant case, there is simply “no reliable evidence that any
Chinese Government ever made any act of authority over the islands at all.”519 Thus, the private
activities relied upon by China do not constitute acts á titre de souverain reflecting the
intention and will to act in that capacity,520 a fact acknowledge by the Chinese Military Council
in a secret report prepared in 1933—there is no
516
Clipperton Island Arbitration (Mexico v. France), 2 R.I.A.A. 1105 (1931), at pp. 393‐394. [The cited pages are
from the English translation at 26 Am. J. Int’l L. 390, at 393‐394 (1932).]
517
518
at p. 683 (“…activities by private persons cannot be seen as effectivités if they do not take place on the basis of
official regulations or under governmental authority.”); see also M. Chemillier‐Gendreau, note 15 supra, at p. 54.
519
M. Bennett, note 14 supra, at p. 436; accord H. Roque, note 208 supra, at pp. 202‐203 (China alludes “merely to
the presence of fishermen and sightings of the islands by some of its nationals. Certainly…, these are hardly the
type of activities accepted as clear and convincing indicia of animus possedendi.”); SOUTH CHINA SEA STUDIES (2012),
at p. 4 (“…Chinese fishermen’s early presence was merely private/individual activities and thus cannot constitute
effective occupation by a State as required by international law.”); H. Nguyen, note 204 supra, at p. 169
(“Occupation by private individuals will not create a title for their country.”).
520
at p. 683.
77
…evidence of any Chinese administration, the presence of an official representative of
China, or Chinese equipment and infrastructure [on the Spratlys]. In conclusion, we have
only one piece of evidence, our fishermen from Hainan, and we have never done
anything on these islands.521
Secondly, the Court in the Eastern Greenland case qualified its pronouncement that
“very little in the way of the actual exercise of sovereign rights” may be required to establish
territorial sovereignty with a very important caveat—i.e., that the lower standard can be
applied “provided that the other State could not make out a superior claim.” As discussed
above, the first verifiable act of sovereignty by the Chinese government in the Paracels
occurred in 1909.522 These events occurred nearly 100 years after Vietnam took formal
possession of the archipelago in 1816.523
Similarly, there is no credible evidence of official Chinese government activities in the
Spratlys prior to 1933 when France declared sovereignty over nine of the islands (and their
dependent isles) in the archipelago. China’s protest of France’s annexation of the Spratlys was
premised on the presence of Chinese fishermen on some of the islands. These private and
isolated acts of Chinese fishermen are not evidence of official Chinese government
administration and control of the islands.524 Consequently, the exception to the general rule of
actual and continuous display of authority does not apply.
It is also important to note that a Chinese map published in 1909 included the Paracel
Islands, but not the Spratlys, Macclesfield Bank, or Scarborough Shoal, as part of Guangdong
Province, the implication being that China did not consider these other features to be parts of
its national territory.525 This conclusion is supported by an event that occurred after the French
annexed the Spratlys. On July 26, 1933, the Chinese consul in Manila (Mr. Kwong) went to the
U.S. Coast Guard and Geodetic Survey in the Philippines to ascertain the position of the nine
Spratly Islands claimed by France. To his surprise, he discovered “that the Spratly Islands and
the Paracel Islands were different and far apart.”526 This complete lack of knowledge about the
location of the Spratlys was documented in a letter from Mr. Wang Gong Da, the director of the
Peiping News, to China’s foreign affairs secretary (Mr. Lou):
The Spokesperson of the Foreign Affairs said that a protest was prepared if…it was
proven that the nine islands…were part of Xisha [the Paracels]. Don’t make a diplomatic
blunder; these islands are not part of Xisha. Triton Island [in Xisha] is the southernmost
part of our territory. South of Triton Island, there is no connection with the Chinese
521
F. Bonnet, note 223 supra.
522
Shen II, at pp. 107 and 135; see also Shen I, at p. 36; Tao Cheng, note 31 supra, at p. 273.
523
MFA White Paper (1974); see also M. Katchen, note 120 supra, at p. 1178.
524
Fisheries Case (United Kingdom v. Norway), I.C.J. Reports 1951, p. 116, at p. 184; Sovereignty over Pulau Ligitan
and Pulau Sipadan (Indonesia/Malaysia), Judgment, I.C.J. Reports 2002, p. 625, at p. 683.
525
526
Id., at p. 16.
78
territory. Our so‐called experts, geographers, Navy representative, etc., are a shame to
our country.527
When it was discovered that the Spratlys and Paracels were two separate groups of islands,
“the Chinese government did not protest the French claim on the nine islands.”528 It was not
until the interagency Committee for the Review of Maps of Lands and Waters of China
(discussed below) completed its work in 1935 that the Spratlys, Macclesfield Bank, and
Scarborough Shoal were included as Chinese territory on official Chinese maps.529
b. Suzerain and Vassal

China also argues that, in 1816, Annam (Vietnam) was subject to China and that it was
therefore impossible for Vietnam, as a vassal state, to invade and occupy Chinese territory (the
Paracels).530 This argument, however, is flawed. First, although Vietnam was incorporated into
the Han Empire in 111 BC and colonized by China for the next 1000 years, Vietnam achieved its
independence from China in 939 AD and successfully repelled Chinese invasions over the next
900‐plus years (with one exception) until it was incorporated into the French Empire in the
1800s. Granted, despite its independence, Vietnam remained a vassal state and continued
diplomatic relations with China through the payment of tributes.531 However, when Emperor
Gia Long officially took possession of the Paracels in 1816, the formal relationship of suzerainty
with China did not preclude Vietnam from exercising sovereign acts, such as the incorporation
of new territories into the kingdom.532 By definition, “suzerainty” occurs where a dominant
state—in this case China—controls the foreign relations of a vassal state—Vietnam—but allows
the vassal state to exercise sovereign authority in its domestic affairs.533 As the suzerain, China
controlled Vietnam’s international affairs. However, the suzerain‐vassal relationship still
allowed Vietnam to exercise its domestic sovereignty, such as the acquisition of new territory.
527
Id., at p. 17.
528
Id.
529
Id., at p. 15. Vietnamese scholars point out that a diplomatic note delivered by China to France in September
1932 confirmed that the Paracel Islands were the southernmost part of China. SOUTH CHINA SEA STUDIES (2012), at p.
5.
530
Republic in France to the Ministry of Foreign Affairs, Paris) (“…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.”).
531
China briefly seized control of Vietnam, once again, in 1407. The occupation ended with the defeat of the
Chinease army by Vietnamese resistance forces in 1428. Vietnam’s suzerainty relationship with China ended in
1883 when it was incorporated into the French Empire with the signing of the Treaty of Protectorate at the 1883
Harmand Convention. LIBRARY OF CONGRESS, FEDERAL RESEARCH DIVISION, Country Studies: Vietnam, available at
lcweb2.loc.gov/frd/cs/vntoc.html. A “tribute” is defined in the Oxford dictionary as an “historical payment made
periodically by one state or ruler to another, especially as a sign of dependence.”
532
MFA White Paper (1974); accord M. Chemillier‐Gendreau, note 15 supra, at pp. 76‐79 (“The Kingdom of
Vietnam…was founded in the 11th century by the creation of a political power and administration independent of
China, but (prudently) acknowledging Chinese suzerainty.”).
533
“suzerainty.” Merriam‐Webster.com.2014, www.merriam‐webster.com (Jan. 2, 2014).
79
4. Persistent Objector
China additionally points out that its persistent objections to all foreign claims to the
Paracels and Spratlys further demonstrate that it effectively administered the archipelagoes.
The first example cited by China is an 1883 incident involving a German ship conducting surveys
in the South China Sea without China’s consent. According to the MFA, the Qing government
lodged a protest with Berlin and the Germans terminated the survey.
Western scholars have determined, however, that this “incident is not based on
verifiable references” and is inconsistent with other Chinese inaction during the same time
period given that, in 1885, the German Admiralty published a two‐sheet chart entitled Die
Paracel‐Inseln (The Paracel Islands).534 The chart documented the work of a German expedition
to the Paracels between 1881 and 1884. For three months each year during this time period,
the German Navy sent the SMS Freya and the warship Iltis “to study and map the Paracel
Islands without either seeking the permission of or incurring protest by the Chinese
government.”535 Based on these events, it is doubtful that China lodged the protest as alleged.
Alternatively, if the protest was made, it was obviously ignored by the German government.
The accuracy of China’s claim regarding the 1883 incident is also colored by the fact that
China did not raise similar objections to other events that occurred around the same
timeframe.536 Scarborough Shoal was first surveyed by the Philippine‐based Spanish frigate
Santa Lucia in April 1800. The results of the survey were published in a chart in 1808.537 A more
detailed survey was conducted by the British ship HMS Swallow in May 1866.538 Both of these
surveys were conducted without Chinese consent or objection. Documents held by the Spanish
Hydrographic Office (Anuario de la Dirrectión de Hidrografía, año 4, número 56, 1866) also
describe search and rescue operations conducted by Spanish Navy units based in the
Philippines to assist mariners in distress on the shoal, a responsibility that was later transferred
to the U.S. Coast Guard after the United States took possession of the Philippines after the
Spanish‐American War.539 There is no evidence that China objected to these activities.
The British were also actively engaged in the Spratlys during this timeframe. In 1877, an
American and two British citizens sought permission from the British Colony of Labuan540 “to
hoist the British flag over Spratly Island and…Amboyna Cay, …having discovered that they were
uninhabited and contained workable deposits of guano.”541 Permission was granted by the
Acting Governor of Labuan and Acting Consul‐General in Borneo “subject to the approval of the
534
M. Chemillier‐Gendreau, note 15 supra, at p. 99. Additionally, Vietnamese scholars argue that, even if the
protest was made, it “was only a diplomatic action and did not have any legal status as China’s sovereignty had not
been established.” SOUTH CHINA SEA STUDIES (2012), at p. 4.
535
F. Bonnet, note 223 supra, at p. 14; accord David Hancox and Victor Prescott, A Geographical Description of the
Spratly Islands and an Account of Hydrographic Surveys Amongst Those Islands, INTERNATIONAL BOUNDARIES RESEARCH
UNIT, MARITIME BRIEFING, VOL. 1, NO. 6, at p. 36.
536
537
Id., at pp. 8‐9; accord D. Hancox and V. Prescott, note 535 supra, at p. 24.
538
539
Id. (“…when, on May 8, 1913, the Swedish steamship Nippon went aground on Scarborough Shoal, the Bureau
of Navigation in Manila sent the Coast Guard cutter Mindoro to help the stranded crew.”).
540
In 1846, the Sultan of Brunei ceded Labuan to Britain. The island became a Crown Colony in 1848.
541
80
Secretary of State for Foreign Affairs.”542 If “the islands were not worked and turned to account
within ten years,” or if they were left unworked for more than five years, the claim would
lapse.543 The claim was subsequently registered with the Office of the Consul‐General in Borneo
and “a notice advising of the 1877 claim was duly published in the Government Gazettes of the
Colonies of Hong Kong and the Straits Settlements.”544 This is the first recorded evidence in
modern times of any state claiming sovereignty over some of the Spratly Islands, yet there is no
indication that China protested the British claim.545
Similarly, in 1889, after an investigation determined that the former “licensees had
abandoned their operations and that the islands were uninhabited and unoccupied,” another
guano exploiter—the Central Borneo Company—sought permission to work the islands in
1888.546 The Colonial Office, with the concurrence of the Foreign Office, granted the guano
lease to the company in 1889 on the same terms as conditions as the previous lease. As in the
preceding case, there is no indication that China objected to these activities. China’s failure to
intervene in these events, which occurred over an extended period of time and were publicly
notified to the international community, is further evidence that China did not effectively
control or administer the Spratly Islands during the 19th century. On the other hand, it is
understandable that Vietnam did not object to any of these events since, at the time, it was a
vassal state of either China or France.
Following France’s annexation of Spratly Island in 1930, the British Foreign Office
determined in 1932 that the United Kingdom did not have “title to Spratly Island because inter
alia there had never been any formal annexation or any open display of sovereignty and that, in
default of this, discovery giving at most only an inchoate title would be insufficient….”547
Subsequently, during the negotiations of the San Francisco Peace Treaty, the Foreign Office
indicated in 1947 that the United Kingdom was “not prepared to contest the French claim to
sovereignty [to the Spratly Islands] which is considered to be good in law.”548
China’s persistent objector argument is also at odds with an incident that occurred in
the late 1890s. In 1895 the German vessel Bellona shipwrecked on North Reef in the Paracels.
The following year, the Japanese vessel Imegu Maru suffered a similar fate on the Amphitrites.
Both vessels were “carrying cargoes of copper insured with British companies.”549 After efforts
to salvage the vessels failed, Chinese fishermen systematically looted the wrecks and “offered
542
Id.; see also S. Tønnesson, note 55 supra, at p. 7.
543
Id.
544
Id.
545
Spratly Island and Amboyna Cay were mentioned in every annual edition of the British Colonial Office List from
1891 to 1933. Id.
546
547
Id., at p. 350. Beginning in 1934, Spratly Island and Amboyna Cay were no longer mentioned in the British
Colonial Office List. S. Tønnesson, note 55 supra, at p. 7; see also M. Chemillier‐Gendreau, note 15 supra, at p. 112.
548
549
M. Chemillier‐Gendreau, note 15 supra, at pp. 36‐37, 98, 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), Annex 12 (Note dated 6
May 1921, from the Directorate for Political and Indigenous Affairs, Government General of Indochina, Hanoi),
Annex 15 (Letter dated 4 May 1909 from Mr. Beauvais, Consul of France in Canton, to the Minister for Foreign
Affairs, Paris).
81
to sell the looted copper [to the insurance companies] for half its value.”550 The insurance
companies refused the offer and requested the Minister of Great Britain in Peking and the
Consul of Great Britain in Hoihow to intervene on their behalf with the Chinese government. As
requested, Minister and Consul Mr. O’Brien Butler demanded that the Chinese government
impound the copper, stating that Chinese authorities in 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.”551 In response, the Chinese government
denied ownership of the archipelago, indicating 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.”552 A similar response was provided when Britain complained about the lack of
navigational aids on the Paracels after two British ships collided with a Chinese fishing vessel
near the islands. Again, China “disclaimed responsibility on the ground that it did not own the
islands.”553 It is apparent from these incidents that China did not intend to claim sovereignty
over the Paracels.
Although the Chinese response in both of these cases did not recognize Vietnamese
sovereignty over the Paracels, it clearly rejected the notion that the islands were part of the
Chinese Empire and undercuts China’s claims that it has effectively administered the islands
since the Yuan Dynasty (1271‐1368). Furthermore, there is no evidence that China protested
the planting of flags and emplacement of sovereignty columns on a number of the features in
the Paracel archipelago by the crew of the French ship La Malicieuse in 1930.554
China challenged France’s subsequent attempt to occupy the Paracels in December
1931, lodging a protest with the French government on July 27, 1932. The July protest was
followed up on September 29, 1932, by a second diplomatic note challenging France’s claims to
the islands. A subsequent diplomatic exchange highlighted that Vietnam was under Chinese
tutelage in the early 1800s and therefore could not validly occupy Chinese territory.555 China
repeated its objections when France formally occupied the Paracels on July 3, 1938. It should be
noted, however, that the letter only asserted China’s claims to the Paracels—there was no
mention of the Spratlys in the diplomatic correspondence.556
China also claims to have protested France’s occupation of nine of the Spratly Islands in
1933, but there is no independent evidence to corroborate that the protest actually was made.
The diplomatic note cited by Chinese scholars is not dated; nor is it mentioned in the
Memorandum on Four Large Archipelagoes of the Republic of China in South Sea, which was
550
Id.
551
Id.
552
Id.; see also H. Chiu and C. Park, note 42 supra, at p. 7; H. Nguyen, note 204 supra, at p. 172.
553
H. Roque, note 208 supra, at p. 192. But see Tao Cheng, note 31 supra, at p. 268 (“With regard to
the…allegation…, the Chinese government was reported to have produced all relevant documents to prove it was a
fabrication.”).
554
MFA White Paper (1974); see also M. Chemillier‐Gendreau, note 15 supra, at p. 38.
555
Id., Annex 10 (Note of 29 September 1932 from the Legation of the Chinese Republic in France to the Ministry of
Foreign Affairs, Paris) (“…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.”).
556
82
issued by the Ministry of Foreign Affairs of the Republic of China in February 1974.557 Moreover,
there is no evidence that any of the parties to the 1922 Nine‐Power Treaty—the United States,
United Kingdom, Japan, France, Italy, Belgium, the Netherlands, Portugal, or China—
complained about the alleged illegal occupation. Article I of the treaty requires the contracting
powers, other than China, “to respect the sovereignty, the independence, and the territorial
and administrative integrity of China.”558 As previously discussed, China has alleged that both
Great Britain and Japan recognized Chinese sovereignty over the South China Sea islands. If that
is true, it is logical that the British and Japanese governments would have invoked the treaty
and objected to France’s occupation of the islands in the 1930s.
Nonetheless, even assuming that the note was delivered, China’s protest was based not
on official government activities or regulation of the islands, but rather “primarily on the
grounds that there were Chinese [fishermen] residing on them.”559 These fishermen were not
sponsored by the government and resided on the islands for only short periods of time given
the inhospitableness of the islands.560 As discussed above, this lack of effective government
administration of or official government presence in the Spratlys was acknowledged by the
Chinese Military Council (CMC) in a September 1933 report, which concluded that the Chinese
government had “never done anything on these islands” to assert its sovereignty.561
The fact that a handful of Chinese fishermen temporarily lived on some of the Spratly
Islands does not equate to effective government administration and control and, therefore,
557
H. Chiu and C. Park, note 42 supra, at note 59.
558
Treaty Between the United of States of America, Belgium, the British Empire, China, France, Italy, Japan, the
Netherlands, and Portugal, Feb. 6, 1922, available at http://avalon.law.yale.edu/20th_century/tr22‐01.asp. The
dispute settlement provision of the treaty (Article VII) provides that “The Contracting Powers agree that, whenever
a situation arises which in the opinion of any one of them involves the application of the stipulations of the present
Treaty, and renders desirable discussion of such application, there shall be full and frank communication between
the Contracting Powers concerned.”
559
H. Chiu and C. Park, note 42 supra, at p. 12; see also Shen I, at p. 42 (“At the time of the occupation, the French
Government stated that the islands in question were terra nullius, but conceded that during their occupation, ‘the
only people living on the islands were Chinese.’”); M. Katchen, note 120 supra, at p. 1178.
560
Tao Cheng, note 31 supra, at p. 267; accord B. Murphy, note 29 supra, at p. 188 (“Until the second half of…[the
20th] century, the Spratlys were almost entirely ignored by the world community. The only resources the islands
offered were small guano and phosphate deposits, seashells, turtle meat, and fish. These resources were enough
to attract only occasional exploitation by adventurous fishermen and phosphate miners. The tiny size, remoteness,
and vulnerability of the islands to tropical storms made them unattractive to permanent settlement.”); B. Dubner,
note 29 supra, at p. 299 (“Without external assistance, the islands have no permanent inhabitants and are too
small to sustain permanent, independent settlements. Most of them are covered by bushes, guano, a few coconut,
and plantation trees.”); C. Joyner, note 166 supra, at p. 57 (“The Spratlys are too small and barren to support
permanent human settlement independently, and few have fresh water or any significant land‐based resources.”);
H. Roque, note 208 supra, at p. 190; M. Chemillier‐Gendreau, note 15 supra, at p. 16 (“…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…”) and p. 20 (“The [Spratlys] islands do not have and have never had a native
population.”).
561
F. Bonnet, note 223 supra, at p. 17. See text accompanying note 97 supra.
83
does not support China’s claim of indisputable sovereignty over the South China Sea islands.562
As stated by Judge McNair in his dissenting opinion in the Anglo‐Norwegian Fisheries case:
Another rule of law that appears to me to be relevant to the question of historic title is
that some proof is usually required of the exercise of State jurisdiction, and that the
independent activity of private individuals is of little value unless it can be shown that
they have acted in pursuance of a licence or some other authority received from their
Governments or that in some other way their Governments have asserted jurisdiction
through them.563
Thus, to be considered relevant, acts by private individuals must be immediately followed up or

sanctioned by government authorities.564 In the instant case, there is no evidence that the
Chinese Government ever authorized or approved these acts. 565
Moreover, at the time France annexed and effectively occupied the Spratlys (1933) and
Paracels (1938), occupation (conquest) was still a recognized method of acquiring territory
under international law.566 France’s actions in the Paracels, as the successor state to Annam,
and its occupation of terra nullius in the Spratlys (as Great Britain had abandoned its claims),
were a clear manifestation of French sovereignty over the two archipelagoes. China’s protest of
these acts cannot deprive France’s effective occupation of its legal effect.567
The Chinese Foreign Ministry, nonetheless, disagrees with this position, arguing that “it
is a basic norm of international law that invasion does not entail sovereignty.”568 China’s view,
562
C. Joyner, note 166 supra, at p. 59 (“Evidence of…permanent settlement is not compelling in the case of China’s
claim to the Spratlys.”); accord M. Bennett, note 14 supra, at pp. 434‐435 (“Despite the official government
position that the Spratly Islands formed an integrated part of its territory, the continuous Chinese presence seems
to have consisted of fishermen from Hainan Island, who would temporarily settle on the islands to fish and collect
tortoise shells. These stays appear to have been brief, and it is unlikely that the huts and other structures they built
survived their departures. …[T]he question arises as to whether isolated contacts by individual Chinese fishermen
are sufficient to establish sovereignty over the Spratlys under international law. Thus the validity of the PRC’s
official position is subject to doubt.”).
563
Fisheries Case (United Kingdom v. Norway), I.C.J. Reports 1951, p. 116, at p. 184.
564
at p. 683; see also M. Chemillier‐Gendreau, note 15 supra, at p. 54.
565
566
M. Katchen, note 120 supra, at p. 1179.
567
The Minquiers and Ecrehos case, Judgment of November 17th, 1953: I.C. J. Reports 1953, p. 47, at p. 66 (“By a
British Treasury Warrant of 1875, constituting Jersey as a Port of the Channel Islands, the "Ecrehou Rocks" were
included within the limits of that port. This legislative Act was a clear manifestation of British sovereignty over the
Ecrehos at a time when a dispute as to such sovereignty had not yet arisen. The French Government protested in
1876 on the ground that this Act derogated from the Fishery Convention of 1839. But this protest could not
deprive the Act of its character as a manifestation of sovereignty.”).
568
Chinese Foreign Ministry’s Memorandum on Question of Xisha and Nansha Islands, XINHUA GEN. OVERSEAS NEWS
SERV., May 12, 1988, quoted in M. Bennett, note 14 supra, at notes 15 and 93.
84
however, is clearly a misinterpretation of the prevailing international law in effect when France
occupied the archipelagoes—“invasion and conquest have had such a pervasive effect on the
creation of modern international boundaries, their legal significance cannot be denied.”569
French occupation of the Spratlys and the Paracels occurred peacefully and openly, at a time
when neither of the island groups was under the effective control of any nation.570 Accordingly,
when Japan renounced its right to the South China Sea islands in the 1951 San Francisco Peace
Treaty, title to the two archipelagoes reverted back to its previous sovereign—France.
Both the ROC and the PRC repeated their objections after France renewed its claims to
the South China Sea islands at the conclusion of the Second World War. All of these actions,
however, occurred well after the “critical date.” Consequently, an international tribunal would
most likely consider the ROC’s and PRC’s actions as self‐serving acts that occurred after the
dispute arose and therefore are irrelevant to the determination of sovereignty.
China cites a number of events, beginning in the 19th century, to support its position
that the international community recognizes Chinese sovereignty over the South China Sea
islands. China also relies on a number of World War II and post‐war documents, statements,
and publications to substantiate its position that it has indisputable sovereignty over the island
groups. China’s argument in this regard, however, is not persuasive.
a. The Sino‐French Treaty of 1887

China maintains that France relinquished its claims to the Paracel and Spratly Islands
when it signed the Sino‐French Treaty of 1887, which delimited the border between China and
Tonkin (northern Vietnam).571 Paragraph 2 of the 1887 Treaty (French text) provides, in part,
that “…[t]he isles which are to the east of the meridian of 105° 43' longitude east of Paris [the
meridian of 108°03'08" east of the Greenwich meridian]…are similarly assigned to China.”572
Based on the treaty, Chinese officials argue that all of the South China Sea islands lie
east of 108°03'08" east longitude and that France, therefore, ceded the islands to China.
Accordingly, they argue that Vietnam may not claim sovereignty over the islands as the
successor state to France. While some scholars agree with this argument, most do not.573
Scholars that support the Chinese position indicate that neither Vietnam nor France has
“persuasively responded to the Chinese invocation of the 1887 Sino‐French Convention…,
which explicitly provided that the islands east of a delimitation line should belong to China” and
that “both the Paracels and Spratlys are situated east of that line.”574 China’s position is not,
however, supported by a plain reading of the treaty text or subsequent actions of the parties to
569
“Certainly the PRC’s own boundaries would have to be redrawn if no border established through military
conquest were ever valid.” M. Bennett, note 14 supra, at pp. 440‐441; H. Roque, note 208 supra, at p. 201.
570
M. Bennett, note 14 supra, at p. 441.
571
Convention Concerning the Delimitation of the Border between China and Tonkin, signed at Beijing, June 26,
1887, available at http://www.chinaforeignrelations.net/node/167.
572
Id.
573
See J. Greenfield, note 149 supra, at p. 32; H. Chiu and C. Park, note 42 supra, at p. 11. Compare M. Chemillier‐
Gendreau, note 15 supra, at pp. 81, 83‐86; Z. Keyuan, note 174 supra, at pp. 239, 245; B. Dubner, note 29 supra, at
p. 309; H. Nguyen, note 204 supra, at pp. 187‐188.
574
J. Greenfield, note 149 supra, at p. 32; H. Chiu and C. Park, note 42 supra, at p. 11.
85
the dispute. Moreover, it ignores a French diplomatic note by Monsieur Paul Chargueraud‐
Hartmann of the Under‐Directorate for Asia (dated August 16, 1933), delivered to the Chinese
legation in Paris on September 27, 1933, that stated, in part, that the 1887 Treaty did not apply
to the Paracels “because the islets are 200 mi east of the delimitation line, which should be
considered as a local one applicable only to the Mancay area in northern Vietnam.”575
A similar position was taken by France in 1937 and expressed in a diplomatic note dated
October 10, 1937:
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 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.576
After reviewing the text of the treaty, Professor Zou Keyuan concurs with the French
assessment, noting that,
…upon careful examination of the texts of the Treaty, …the meaning of the…Chinese
version indicates that the red line drawn on the attached map was a line to divide the
islands in the Gulf of Tonkin rather than a line of maritime boundary. The line, which
ended at about 21°23' north latitude on the map, involved only the land and coastal
islands of the two sides. Such a line was simply a form of geographical shorthand to
avoid the need to name all the islands, and such a technique was used widely at that
time in state practice. Even from the French version, …the wording “forming the
border”…is actually a line equivalent to the red line mentioned in the Chinese version.577
Professor Zou further concludes that the purpose of the treaty
575
H. Chiu and C. Park, note 42 supra, at p. 13; see also M. Chemillier‐Gendreau, note 15 supra, at p. 84.
576
M. Chemillier‐Gendreau, note 15 supra, at pp. 85‐86.
577
Zou Keyuan, note 174 supra, at p. 239; accord B. Dubner, note 29 supra, at p. 309. See also H. Nguyen, note 204
supra, at pp. 187‐188; M. Chemillier‐Gendreau, note 15 supra, at pp. 83‐84 (“The object and purpose of the 1887
Treaty were the delimitation of the frontier between Tonkin and China…. The Convention relates to the land
territories. …The frontier to be delimited was that between Tonkin and China. Only this part of the present
Vietnam was concerned…. 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. …”).
86
…was to demarcate the boundary between China and Vietnam according to the Sino‐
French Treaty of June 9, 1885. There was no mention of the Gulf of Tonkin and only part
of the Gulf close to the land was shown on the attached map. Thus the representatives
from both parties had no authorization and/or intention to delimit the maritime
boundary in the Gulf of Tonkin.578
A similar argument can be made with respect to a determination of sovereignty of the

South China Sea islands. Chinese and French negotiators clearly did not have the authorization
or the intent to make such a determination in 1887. In short, as Professor Zou correctly points
out, “the 1887 boundary line decided only the ownership of the coastal islands and did not
include mid‐ocean islands such as Bach Long Vi Island in the Gulf of Tonkin” or the more distant
South China Sea islands.579
This conclusion is supported by the fact that Bach Long Vi Island, which is located west
of the 1887 boundary line, was “handed over to Vietnam under a decision of…Mao Tse‐tung” in
the 1950s “to show solidarity of the Sino‐Vietnamese friendship and brotherhood.”580 If the
boundary line had been intended to apply to mid‐ocean islands, Bach Long Vi Island would have
already been Vietnamese territory and China would not have needed to transfer sovereignty of
the island to Vietnam. Furthermore, if China really believed that it acquired title to the Spratlys
under to the 1887 Treaty, why did it wait until 1946 to occupy any of its islets?581
Professor Zou’s conclusions are also supported by the subsequent negotiation of the
Sino‐Vietnamese Maritime Boundary Agreement in the Gulf of Tonkin.582 The 2000 Agreement
delimits the territorial sea, exclusive economic zone, and continental shelf of the two nations in
the Gulf of Tonkin.583 Had the 1887 Treaty intended to delimit the maritime boundary between
China and Annam (Vietnam), the 2000 Agreement would not have been necessary.
b. French Recognition before World War II

China claims that French Prime Minister Aristide Briand recognized Chinese sovereignty
over the Paracels on May 21, 1921. China also asserts that the Governor‐General of French
Indochina and a French navigator likewise purportedly acknowledged that the Paracels
belonged to China in the 1920s and 1930s, respectively. The MFA has not, however, provided
independent evidence to corroborate these claims. Moreover, China’s assertions are at odds
578
Id.
579
Zou Keyuan, note 174 supra, at p. 245; accord M. Chemillier‐Gendreau, note 15 supra, at p. 81.
580
Zou Keyuan, note 174 supra, at p. 245.
581
Taiwanese forces occupied Itu Aba Island in the Spratly archipelago in 1946. Chinese forces did not occupy any
of the islets until 1988. B. Dubner, note 29 supra, at p. 310.
582
Agreement between the People’s Republic of China and the Socialist Republic of Viet Nam on the delimitation of
the territorial seas, the exclusive economic zones and continental shelves in Beibu Bay/Bac Bo Gulf, Dec. 25, 2000
(entry into force: June 30, 2004), reprinted in CENTRE FOR INTERNATIONAL LAW, NATIONAL UNIVERSITY OF SINGAPORE, CIL
Selected Documents on Joint Development and the South China Sea, Oct. 6, 2011, at p. 81.
583
During the negotiations of the boundary treaty, the head of the Chinese delegation (Han Nianlong) reiterated
China’s sovereignty claims to the Paracel and Spratly Islands, stating that “the Xisha Islands and Nansha Islands
have always been an inalienable part of Chinese territory. The Vietnamese part should come back to its original
position of recognizing that fact, respect China's sovereignty over these two sets of islands, and withdraw all its
personnel from those islands of the Nansha Islands which it occupies.” Shen I, at p. 68.
87
with other official French declarations, letters, and documents issued during the same time
period.584
The MFA correctly points out that the Commander of the Navy in Saigon disclaimed
French sovereignty over the Paracels in 1920 during an exchange with the Japanese shipping
company Mitsui Bussan Kaisha. However, China fails to mention that the Commander did so in
his personal capacity and without authorization from the Governor of Cochinchina.585 In
addition, a subsequent news report on the exchange between Captain Rémy and the Japanese
company prompted the French government to re‐evaluate its position on French rights to the
archipelagoes.586
French ownership of the Paracels had been the subject of discussion between Paris and
colonial authorities in Indochina earlier in the century. In 1909, the French Consul in Canton
(Guangzhou)—Jean‐Joseph Beauvais—wrote a letter to the Minister of Foreign Affairs in Paris
to discuss possible French claims to the Paracels. After discussing the strategic location of the
islands—“the Paracels are of some importance to France: lying halfway between Saigon and
Hong Kong, they pose a major threat to shipping and may need a lighthouse”—Beauvais
indicated that “France has as many rights to the islands as China.”587 Moreover, Beauvais
highlighted that China had previously denied ownership of the Paracels, citing the incidents
discussed above involving the looting of the German vessel Bellona and the Japanese ship
Imegu Maru that had shipwrecked in the Paracels in 1895 and 1896, respectively. He concluded
that “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 its.”588 However, Beauvais
warned that claiming sovereignty over the Paracels may not be in best interests of France
because it could fuel Chinese nationalism, which could be “more damaging to us than the
possession of the Paracel Islands would be useful.”589 Thus, the French government believed it
had a valid claim to the archipelago, but feared that publicly asserting sovereignty could be
counterproductive for other French interests in China.
584
See Tao Cheng, note 31 supra, at p. 268 (“The French colonial authorities in Indo‐China had shown their interest
in the Paracel Islands and the Spratly Islands as early as the first decade of the present [20th] century and again in
the 1920’s. The Chinese suspicion of French designs on these islands was at least partially responsible for Admiral
Li Chun’s 1907 mission and Shen Peng‐fei’s 1928 visit to the Paracel Islands.”). During the 1907 mission, Admiral Li
purportedly “established a Chinese territorial marker on Drummond Island…to commemorate the inspection.” H.
Chiu and C. Park, note 42 supra, at p. 11.
585
M. Chemillier‐Gendreau, note 15 supra, Annex 12 (Note dated 6 May 1921, from Directorate for Political and
Indigenous Affairs, Government General of Indochina, Hanoi) (“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.”)
586
Id., at p. 106, Annex 12 (Note dated 6 May 1921, from the Directorate for Political and Indigenous Affairs,
Government General of Indochina, Hanoi).
587
Id., at pp. 104‐105, Annex 13 (Note dated 4 May 1909 from Mr Beauvais, Consulate of France in Canton), Annex
15 (Letter dated 4 May 1909 from Mr. Beauvais, Consul of France in Canton, to the Minister for Foreign Affairs,
Paris).
588
Id.
589
Id.; see also S. Tønnesson, note 55 supra, at p.7.
88
By 1921, some French officials were suggesting that France abandon its claims to the
islands in exchange for other French interests in China. On March 30, 1921, the Governor of
Kwangtung announced (Order No. 831 dated March 30, 1921, and published in the Official
Gazette of Kwantung (No. 2619 of April 2, 1921)) that the “military Government of the south
had decided to incorporate the Paracels into the sub‐prefecture of Yai Hien, Hainan Island.”590
Two weeks later, the Minister for the Colonies sent a letter to the President du Conseil,
Minister for Foreign Affairs, suggesting that “[i]t 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.”591 Several weeks later, an official from the Directorate for Political and Indigenous
Affairs indicated in a note dated May 6, 1921, that a French concession on the Paracels could
“…make it easier to settle the matter of compensation for the Tunnam railway” and that “in
such a situation, the abandonment by France of all rights to ownership of the Paracels might
seem like the compensation demanded” by the Chinese.592
The fact that France was considering “negotiating” the abandonment of its claim to the
Paracels implies that French officials believed France had rights to the islands.593 Nonetheless,
either the negotiations did not take place or France was unsuccessful in gaining the necessary
concessions from the Chinese government regarding non‐cession and non‐fortification of the
islands. Accordingly, by 1922, French officials began to realize that complaisance towards
China’s claims could serve Japanese interests.594
The decision to assert French claims to the islands as the successor state to the Kingdom
of Annam began to take shape in 1928. Having been informed that the Governor of Hainan
Island, General Gaston Hoang, had intentions of claiming the Paracels as Chinese territory,
Acting Governor General of Indochina Eugène Jean Louis Réne Robin informed the Minister for
the Colonies on December 17, 1928, that “it is…time for us to take the initiative and to assert
rights which appear to be recognized both in historical documents and by geographical
realities.”595 The following month, Chief Resident of Annam Le Fol provided the Governor
General with historical evidence to support Annam’s prior sovereignty over the archipelago,
citing the actions of Emperors Gia Long and Minh Mang, and the exploits of the Hoang Sa
Company.596 A month later, on February 26, 1929, a note from the Ministry for Foreign Affairs
informed the Ministry for the Colonies of the change in the French position regarding the
Paracels:
590
M. Chemillier‐Gendreau, note 15 supra, at Annex 12 (Note dated 6 May 1921, from Directorate for Political and
Indigenous Affairs, Government General of Indochina, Hanoi).
591
Id., at Annex 16 (Note of 18 April 1921 from the Minister for the Colonies to the President du Conseil, Minister
for Foreign Affairs).
592
Id., at Annex 12 (Note dated 6 May 1921, from Directorate for Political and Indigenous Affairs, Government
593
Id., at p. 106.
594
Id.
595
Id., at p. 107, Annex 20 (Letter No. 2276, dated 17 December 1928, from the Acting Governor General of
Indochina, Hanoi, to the Minister for the Colonies, Paris).
596
Id., at pp. 107‐108, Annex 8 (Letter of 22 January 1929, from the Chief Resident of Annam, Hué, to the Governor
89
…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…a position contrary to that decided upon by
the French Government in 1921…, which apparently entailed recognizing 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 1898.597
A letter from the Ministry of the Navy to the Ministry of Foreign Affairs likewise
recorded the change in France’s position, as well as noting that Annam’s claims to the Paracels
were superior to that of Nationalist China:
…Mr. Robin currently supports the argument of national sovereignty, based on historical
documents which…have not been mentioned before. …[T]he position apparently
agreed, in 1921…, was to recognize Chinese rights to the islands under certain
conditions of security and non‐cession. …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.598
On February 14, 1930, the Kwangtung Provisional Council adopted a resolution to mine
guano deposits in the Paracels. Governor General Pierre Marie Antoine Pasquier informed the
Ministry of the Colonies of the Chinese action, noting that the
French Government has never officially recognized Chinese sovereignty over [the]
archipelago, nor definitively abandoned asserting historical and geographical rights [of
the] Empire of Annam, which it had only considered formally relinquishing for reasons
[of] political expediency and in exchange [for] guarantees re[ference] non‐fortification
and non‐cession [of the] archipelago to foreign powers. Failing such agreement…, we
cannot remain indifferent to [a] fresh assertion [of] sovereignty by Chinese
authorities.599
Two months later, China claims that France implicitly recognized Chinese sovereignty
over the Paracels at the 1930 Hong Kong Far Eastern Meteorological Conference. France
purportedly joined other delegations in requesting that the Republic of China construct a
weather station in the Paracels. A resolution adopted during the conference provided that
597
Id., at p. 108, 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).
598
Id., at p. 108, Annex 22 (Letter of 18 February 1929 from the Minister for the Navy, acting Minister for the
Colonies, Paris, to the Minister of Foreign Affairs (Directorate for Political Affairs and Trade (Asia‐Oceania), Paris).
599
Id., at p. 109, Annex 24 (Official telegram of 14 March 1930, from the Governor General of Indochina, Hanoi, to
the Ministry of the Colonies, Paris).
90
The Conference recognizes the great importance to the Meteorology of the China Seas
of the Meteorological Station established at Pratas by the Government of China. It
expresses the hope and voices the desire that similar stations be established in zones
not yet represented, especially on the Macclesfield Bank and the Paracels.600
There is no evidence that the French‐Indochina representative who attended the conference,
Monsieur Bruzon, objected to the proposal. Accordingly, China argues that this request “proves
that not only are the Paracel Islands internationally recognized as belonging to China, but that
the French themselves share this view.”601 However, as French authorities correctly pointed out
in a subsequent diplomatic note regarding this matter, “the conference was a scientific one and
did not deal with political questions.”602 In other words, French support for the resolution was
not a tacit recognition of Chinese sovereignty over the Paracels. It should also be noted that the
delegate from the Zikawei Observatory, Father Louis Froc, while expressing support for the
proposal, was ambivalent as to the status of the Paracels, indicating that “there has always
been the doubt…as to what flag would be hoisted” over the station.603
Subsequently, on June 19, 1930, the Ministry of Foreign Affairs determined that, based
on a 1929 study by P. A. Lapicque (A propos des lies Paracels (Saigon, Les editions d'Extreme‐
Asie)), “the Paracels had not been abandoned and therefore had not become res nullius.”604
Four months later, the Governor General put an end to France’s reluctance to assert its rights
to the Paracels, informing the Minister for the Colonies that historical documents and maps in
the possession of the French government were
…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…[and that] the French
administration has never ceased to show interest in the archipelago.605
On July 31, 1931, a telegram from the Ministry of the Colonies instructed the Governor General
that France’s legal position on the Paracels “could be strengthened by [a] surveillance
mission…[to the] Paracel archipelago…” but warned that the mission should “have [the]
600
Resolution 4, CONFERENCE OF DIRECTORS OF FAR EASTERN WEATHER SERVICES, HONG KONG, 1930, at p. 58, available at
http://www.hko.gov.hk/mwg‐internal/de5fs23hu73ds/progress?id=7sEupYOYvs. See also H. Chiu and C. Park, note
42 supra, at p. 12.
601
Republic in France to the Ministry of Foreign Affairs, Paris).
602
603
REPORT OF THE CONFERENCE OF DIRECTORS OF FAR EASTERN WEATHER SERVICES, HONG KONG, 1930, at p. 21, available at
http://www.hko.gov.hk/mwg‐internal/de5fs23hu73ds/progress?id=7sEupYOYvs. The Zikawei Observatory was
established by French Jesuits in Shanghai, China, in 1872 to carry out meteorological observations in the South
China Sea. Hong Kong Observatory blog, available at http://www.hko.gov.hk/blog/en/archives/00000047.htm.
604
605
Id., at p. 109, Annex 26 (Letter No. 1512‐A.Ex dated 18 October 1930 from the Governor General of Indochina,
Hanoi, to the Minister for the Colonies, Paris).
91
appearance of [a] simple exercise [of] pre‐existing sovereign rights” and should avoid taking
actions that could be perceived as “taking possession” of the islands.606
When China proclaimed later that year that it was inviting bids from foreign companies
to exploit the phosphate deposits in the Paracels, France protested the announcement by a
diplomatic note dated December 4, 1931.607 The French filed a second protest on April 24,
1932, after China publicly called for bids, citing “the former rights exercised by the emperors of
Vietnam, the official taking of possession by Emperor Gia Long in 1816, and the sending of
Indochinese troops to guard the islands….”608 Then on June 15, 1932 (Decree No. 156‐SC),
Governor General Pasquier designated the Paracels (Delegation des Paracels) as an
administrative unit of Thua Thien (Huế) Province.609 A French offer on February 4, 1932, to take
the dispute over the islands to arbitration was rejected by the Chinese government on
September 29, 1932.610
Failing to achieve a negotiated settlement of the issue, the French colonial government
solidified its control over the archipelago between 1937 and 1939. The head of public works
was dispatched to the Paracels in 1937 to “study the potential for maritime and air traffic
facilities, and to build a lighthouse on Pattle Island.”611 The following year, Decree No. 156‐SC
was confirmed by Emperor Bao Dai in a Vietnamese imperial ordinance on March 30, 1938.612
Then, on May 5, 1939, Governor General Joseph Jules Brévié divided the Paracel archipelago
into two delegations—the Crescent Group and the Amphitrite Group.613 Additionally, French
civil service officers and Vietnamese police were permanently stationed on Pattle Island
(Crescent Group) and Woody Island (Amphitrite Group) on a regular basis.614 Taken as a whole,
these French activities clearly contradict China’s assertion that France recognized Chinese
sovereignty over the Paracels during the 1920s and 1930s.
During this timeframe, France’s attitude towards the Spratly Islands was likewise
ambivalent, but official French records reflect that French authorities viewed the islands as
terra nullius.615 On September 23, 1929, France informed the other Great Powers that it had
606
Id., at 109, Annex 27 (Telegram of 4 July 1931 from the Ministry of the Colonies to the Government General [of
Indochina]).
607
MFA White Paper (1974); see also M. Chemillier‐Gendreau, note 15 supra, at p. 38; Nguyen Ba Dien, note 203
supra; The Indisputable Sovereignty of Viet Nam over the Paracel Islands, NATIONAL COMMITTEE OF BORDER AFFAIRS,
MINISTRY OF FOREIGN AFFAIRS, SOCIALIST REPUBLIC OF VIET NAM, Jan. 30, 2011, available at
http://southeastasiansea.wordpress.com/ [hereinafter NATIONAL COMMITTEE OF BORDER AFFAIRS White Paper];
Historical documents on Vietnam’s sovereignty over Paracel and Spratly Islands, note206 supra.
608
Id.
609
MFA White Paper (1974); see also H. Chiu and C. Park, note 42 supra, at p. 8; H. Nguyen, note 204 supra, at p.
185; M. Chemillier‐Gendreau, note 15 supra, at pp. 39, 113.
610
611
Id., at pp. 38, 113.
612
Id.; see also SOUTH CHINA SEA STUDIES (2012), at p. 2; Nguyen Ba Dien, note 203 supra; Historical documents on
Vietnam’s sovereignty over Paracel and Spratly Islands, note 203 supra; H. Nguyen, note 204 supra, at p. 185;
613
MFA White Paper (1974); see also H. Nguyen, note 204 supra, at p. 185; SOUTH CHINA SEA STUDIES (2012), at p. 2;
614
Id.
615
Id., Annex 17 (Letter dated 26 December 1927 from the Acting Governor General of Indochina, Hanoi, to the
Minister for the Colonies, Paris), Annex 18 (Note dated 8 March 1928 from Mr Bourgouin), Annex 19 (Note dated
92
occupied the Spratlys on the grounds that the islands were terra nullius. Formal occupation
took place in April 1933 and was publicized in the Official Gazette on July 26, 1933. The Spratlys
were subsequently incorporated into Bà Ria Province on December 21, 1933 by the Governor of
Cochinchina.616 Based on the foregoing, it is clear that France did not recognize China’s claims
to the Spratlys.
c. French Recognition after World War II

Some Chinese and foreign scholars additionally maintain that France tacitly
acknowledged China’s sovereignty over the South China Sea islands after World War II. To
support their position, these scholars cite France’s failure to protest the return of Nationalist
Chinese troops to Itu Aba Island and Woody Island in 1946, as well as French and Vietnamese
inaction when ROC forces were absent from Itu Aba between 1950 and 1956. Accordingly, even
if the French validly occupied the Spratlys and the Paracels in 1930s, France relinquished its
sovereignty over the islands in 1945 and therefore did not possess a lawful title to which
Vietnam could succeed as the successor state to French rights to the archipelagoes.
These assertions are clearly inconsistent with French and Vietnamese sovereign
activities in the South China Sea islands following the conclusion of the war. In June 1946, a
French infantry platoon, embarked on the Savorgnan de Brazza, was dispatched to re‐occupy
the Paracels, but was compelled to withdraw from the islands in September 1946 as a result of
the ongoing French‐Indochina war. Nonetheless, when French officials learned that the Chinese
Nationalist occupation force had not withdrawn from the Paracels in March 1946 as required by
the Exchange of Letters between China and France,617 France lodged a diplomatic protest on
January 13, 1947. A few days later, on January 17, the warship Le Tonkinois was deployed to the
Paracels to dislodge the Chinese Nationalists from Woody Island. Realizing that they were
outnumbered, however, those in the combined French‐Vietnamese force regrouped and
established their headquarters on Pattle Island.
Later in January 1947, the advice‐boat Commandant Duboc, under the command of
Captain Hennequin, deployed to the Paracels to evaluate the condition of the existing
infrastructure on Pattle Island and determine the viability of maintaining French forces in the
archipelago. Captain Hennequin’s report to the Commander of the Navy in Indochina
recommended that France retain possession of the islands—in light of “the substantial facilities
built on the island by the Government General and their present state of conservation…,
sufficient efforts should be undertaken “to see that this island remains a possession of
Indochina.”618 The existing weather station on Pattle Island was subsequently refurbished and
became operational in late 1947 under international station code 48860, and the French
26 November 1928, addressed to the Under‐Directorate for Asia and Oceania), Annex 29 (Encoded telegram of 8
March 1929).
616
Id., Annex 30 (Decree by the Governor of Cochin China (J. Krautheimer), Saigon, 21 December 1933).
617
North Indochina, Chungking, Feb. 28, 1946, U.N.T.S. Vol. 14, 1948, at p. 151.
618
M. Chemillier‐Gendreau, note 15 supra, 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).
93
hydrographic survey ship Ingenieur en chef Girod conducted oceanographic, geologic,
geographic, and ecological studies in the archipelago in 1953.
The French similarly engaged in a series of activities in the Spratlys, to include
diplomatic and military acts, in order to substantiate French sovereignty over the archipelago
until French troops were finally withdrawn from Indochina in August 1956. The French
battleship Chevreud deployed to the Spratlys in October 1946 to re‐assert French interests in
the archipelago and install a sovereignty stele on Itu Aba Island. When France learned that
Chinese naval units had illegally occupied Itu Aba in November 1946, French authorities
protested the action, demanding that the Nationalist troops withdraw from the island.
France likewise opposed Philippine incursions into the Spratly archipelago. In May 1956,
after Tomas Cloma proclaimed his so‐called “Freedomland,” which encompassed part of the
Spratly archipelago, the French Charge d'Affaires in Manila reminded the Philippine
government that the Spratlys had been sovereign French territory since 1933. The French Navy
vessel Dumont d’Urville also visited Itu‐Aba Island in 1956 to demonstrate French‐Vietnamese
interest in the archipelago.619
Based on these extensive activities discussed above, China’s assertion that France tacitly
acknowledged Chinese sovereignty over the South China Sea islands after World War II is
tenuous, at best.
d. Japanese Recognition
Chinese scholars also argue that Japan recognized China’s sovereignty over the Paracels
in 1938 by declaring that French claims to the archipelago were not justified given that both
France and Great Britain had previously recognized that the Paracels were Chinese territory.
China’s position in this regard is clearly inconsistent with the previously discussed French
activities in the South China Sea during the first half of the 20th century. It also ignores the fact
that Japan was at war with China and had ulterior motives for opposing French claims to the
South China Sea islands. On September 18, 1931, Japan invaded and occupied Manchuria.
Following a series of skirmishes between Japanese and Chinese forces, Japan launched a full‐
scale invasion of China on July 7, 1937. By recognizing Chinese sovereignty over the South China
Sea islands, Japan was free to invade the Spratlys (in March 1939) and the Paracels (in April
1939) because it was at war with China. It is therefore unlikely that Japan truly recognized
Chinese sovereignty of the Paracels over that of France.
Moreover, China’s position does not comport with Britain’s official position regarding
French overseas possessions during World War II, which recognized that the French were
“highly sensitive about the restoration of all parts of their colonial empire to the status quo
ante [which would arguably include the Spratlys and Paracels] and that the British Government
will firmly support the French position in view of its desire for the closest possible relations with
France.”620 It also ignores a British diplomatic note protesting Japan’s announcement in March
1939 that it was placing the Spratly Islands under the administrative jurisdiction of Formosa
(Taiwan). The note, dated April 10, 1939, provided:
619
Id., at p. 43.
620
Memorandum by the Deputy Director of the Office of European Affairs (H. Freeman Matthews), Nov. 2, 1944,
THE PENTAGON PAPERS, UNITED STATES‐VIETNAM RELATIONS (1945‐1967), Part V.B.1., at pp. 37‐38, available at
94
I have the honour to inform your Excellency that His Majesty's Government in the
United Kingdom have been notified of the decision of Your Excellency's Government
published on March 31st last to include the Spratley Islands under the jurisdiction of the
Governor General of Formosa.
I am instructed to inform your Excellency that His Majesty's Government are unable to
admit that the claim of the Japanese Government has any legal foundation and that
they deplore the procedure adopted by them in this matter as it can only complicate still
further the situation in the Far East.621
The 1939 British note is consistent with prior British recognition of French sovereignty
over the Spratlys during the 1930s. In 1937, the British Admiralty and Air Ministry proposed
leasing Itu Aba or Thitu Islands from the French in order to build an airfield in the Spratlys, a
clear recognition of French sovereignty over the islands.622 Similarly, in the course of a debate
in the British House of Commons in April 1939, the Foreign Office indicated “that the Spratlys
were claimed in full sovereignty by the French Government.”623 Britain remained steadfast in its
support of the French claims to all of the South China Sea islands after the war, requesting
permission to use Lincoln Island in the Paracels for military exercises in 1948.624
With respect to the Spratlys, Japan protested France’s 1933 occupation of nine of the
islands in the archipelago, indicating that 12 of the Spratly Islands were Japanese territory
based on discovery in May 1920 and economic exploitation of the islands by a Japanese
fertilizer company.625 Japan’s protest did not, however, recognize Chinese sovereignty of the
Spratlys and therefore does not support China’s claim to the islands.
The argument that Japan intended to return the South China Sea islands to China at the
end of World War II, relying on the separate agreements formally ending hostilities between
the two Chinas and Japan, is likewise misplaced. As discussed above, Article 2 of the 1952
Treaty of Peace between the Republic of China and Japan simply states that Japan renounced its
621
G. Marston, note 330 supra, at p. 354; see also T. Kelly, note 133 supra; M. Chemillier‐Gendreau, note 15 supra,
at Annex 32 (Note from the Ministry of Foreign Affairs, Directorate for Political Affairs and Trade, (Asia), 10 August
1940); U.S. DEPT. OF STATE, Foreign Relations of the United States, Southward Advance of Japanese Expansionist
Movement: Hainan and the Spratly Islands, 1939, vol. III, at p. 117. The United States took a similar position in a
diplomatic note delivered to the Japanese Ambassador in Washington on May 17, 1939: “…the Government of the
United States does not consider that all islands or reefs within the extensive area delimited in the Japanese
memorandum could properly be treated as one island group or that the action of Japan in blanketing within the
territory of Japan islands or reefs with respect to which the Japanese Government has heretofore exercised no acts
which might properly be regarded as establishing a basis for claim to sovereignty has any international validity.”
Id., at p. 118.
622
Bob Hackett, Sander Kingsepp, and Anthony Tully, Japanese Occupation South China Sea Islands—1937‐1941
(Rev. 1), RISING STORM—THE IMPERIAL JAPANESE NAVY AND CHINA (1931‐1941), 2012, available at
http://www.combinedfleet.com/SouthChinaSea_t.htm; see also M. Chemillier‐Gendreau, note 15 supra, at Annex
32 (Note from the Ministry of Foreign Affairs, Directorate for Political Affairs and Trade, (Asia), 10 August 1940).
623
624
Id., at p. 118.
625
Shen I, at p. 42; see also Tao Cheng, note 31 supra, at p. 269; H. Chiu and C. Park, note 42 supra, at p. 12; M.
Katchen, note 120 supra, at p. 1178; M. Bennett, note 14 supra, at p. 437; S. Tønnesson, note 55 supra, at p. 8.
95
rights to Taiwan, the Penghu Islands, and the South China Sea islands.626 It does not, however,
put forward any proposals with respect to devolution of the island groups. If the intent of this
article was to transfer title to Taiwan, explicit devolution of rights in Taiwan’s favor should have
been included in the treaty. In fact, some scholars have argued that Taiwan, by failing to
explicitly include a clear devolution of rights in its favor in the treaty with Japan, in effect
“ceased asserting [its] rights to the disputed islands.”627 Moreover, the Chinese position fails to
take into account that, following the conclusion of the 1952 Treaty, Japan and France
exchanged diplomatic notes indicating “that the new treaty had not, in the view of Japan,
entailed any change in relation to the San Francisco Treaty.”628
Even assuming that Japan renounced its rights to the Spratlys and Paracels in favor of
Taiwan, Japan did not have the authority to transfer title of the islands to the ROC. Japan’s
claims to the South China Sea islands were obtained by armed aggression against France. Upon
conclusion of the war, Japan renounced its rights and the title to the islands reverted back to its
legitimate sovereign—in this case, France. Taiwan could not receive any greater rights to the
South China Sea islands than those possessed by Japan at the conclusion of the war.629
Similarly, the 1972 Joint Communiqué offers little in the way of support for the Chinese
position. The Communiqué simply states that Article 8 of the Potsdam Proclamation would
apply.630 As discussed in the following section, neither the Potsdam Proclamation nor the Cairo
Declaration support China’s claim to the South China Sea islands.
e. World War II Documents

The Cairo Declaration provided that
…Japan shall be stripped of all the islands in the Pacific which she has seized or occupied
since the beginning of the First World War in 1914, and that all the territories Japan has
stolen from the Chinese, such as Manchuria, Formosa [Taiwan], and the Pescadores
[Penghu], shall be restored to the Republic of China. Japan will also be expelled from all
other territories which she has taken by violence and greed. …631
626
Treaty of Peace between the Republic of China and Japan, Apr. 28, 1952, entered into force Aug. 5, 1952,
available at http://www.taiwandocuments.org/doc_all.htm (“It is recognized that under Article 2 of the Treaty of
Peace with Japan signed at the city of San Francisco on 8 September 1951…, Japan has renounced all right, title,
and claim to Taiwan (Formosa) and Penghu (the Pescadores) as well as the Spratly Islands and Paracel Islands.”).
627
628
629
The common law principle of “nemo dat quod non habet” provides that “the transferee cannot receive any
greater rights than those possessed by the transferor.” BROWNLIE 217 (8th ed.).
630
Joint Communiqué of the Government of Japan and the Government of the People’s Republic of China, Sept. 29,
1972, available at http://www.taiwandocuments.org/japan01.htm (“The Government of the People’s Republic of
China reiterates that Taiwan is an inalienable part of the territory of the People’s Republic of China. The
Government of Japan full understands and respects this stand of the Government of the People’s Republic of
China, and it firmly maintains its stand under Article 8 of the Potsdam Proclamation.”).
631
Cairo Declaration (November 1943), released Dec. 1, 1943, available at
96
The Potsdam Proclamation reaffirmed this commitment, stating that “the terms of the Cairo
Declaration shall be carried out….”632
China’s reliance on the World War II declarations to support its claim to the South China
Sea islands is clearly misplaced. The Cairo Declaration, as reinforced by the Potsdam
Proclamation, only provides that China would recover Manchuria, Formosa (Taiwan), and the
Pescadores (Penghu Islands) after the war. The next sentence simply provides that Japan would
be expelled from “other territories” which it had taken by violence, but it does not indicate that
these “other territories” would be returned to China. Although not specifically stated, the only
logical conclusion is that these “other territories” included the Spratly and Paracel Islands,
which were seized by violence from France, not China.633 These islands would, therefore, be
restored to France, not China, at the conclusion of the war.
China also emphasizes that “Japan put the Nansha [Spratly] Islands under the
jurisdiction of Taiwan” during the war and that “the territories to be restored to China as
identified in the Cairo Declaration [and Potsdam Proclamation] naturally included the Nansha
Islands.”634 However, the fact that Japan placed the Spratlys under the jurisdiction of Taiwan is
irrelevant to a determination of sovereignty over the islands. It was logical for Japan to place
the Spratlys under the administration of Taiwan, as Taiwan was Japan’s closest territory to the
South China Sea.
Moreover, the implication that the Paracels and Spratlys were part of Taiwan and
should, therefore, have been returned to China at the conclusion of the war is clearly
inconsistent with the terms of the Treaty of Shimonoseki. Taiwan and the Penghu Islands were
ceded to Japan by China in 1895 at the conclusion of the first Sino‐Japanese War (1894‐1895).
Article 2 of the Treaty of Shimonoseki provides, in part, that
China cedes to Japan in perpetuity and full sovereignty the following territories…:
(b) The island of Formosa [Taiwan], together with all islands appertaining or belonging
to the said island of Formosa.
(c) The Pescadores Group [Penghu Islands], that is to say, all islands lying between the
119th and 120th degrees of longitude east of Greenwich and the 23rd and 24th degrees of
north latitude.635
The phrase “islands appertaining or belonging to…Formosa” in Article 2b most likely refers to Lü
Tao (Green Island) and Lan Yü (Lanyu), two small islands that lie to the east of Taiwan, as well as
11 other small islets adjacent to the main island and the 64 islands that comprise the Penghu
(Pescadores) Islands.636 Moreover, both the Paracels and the Spratlys lie well south of 23
632
Potsdam Proclamation, July 26, 1945, para. 8,available at http://www.taiwandocuments.org/doc_all.htm.
633
634
635
Treaty of Shimonoseki, Apr. 17, 1895, entered into force May 8, 1895, available at
636
Chiao‐min Hsieh, Taiwan‐Ilha Formosa: A Geography in Perspective, (London, 1964), pp. viii‐372, at p. 6. See
also Peter Upton, International Law and the Sino‐Japanese Controversy over Territorial Sovereignty of the Senkaku
Islands, 52 B.U. L. REV 763 (1972), at p. 771.
97
degrees north latitude, and were, therefore, not considered by Japan or China to be a part of
Taiwan or the Penghu Islands in 1895.
The same can be said for 1943. Had the Allied Powers considered the South China Sea
islands to be part of Taiwan, they would have been mentioned in the Cairo Declaration along
with Taiwan’s other outlying island group—the Pescadores. It is also important to note that
Generalissimo Chiang Kai‐shek was present at the Cairo Conference, yet “he did not have any
reference to these islands included in the final Declaration….”637 Surely, if the Spratlys and
Paracels were considered to be Chinese territory prior to the war, Chiang Kai‐shek would have
demanded that the archipelagoes be returned to Chinese control at the Conference.638
Other World War II documents support this conclusion. In December 1941, President
Roosevelt reassured French Marshal Pétain that that the United States would recognize French
sovereignty over its former colonies and that the United States had “no desire to see existing
French sovereignty over…any of the French colonies pass to the control of any other nation.”639
One year later, on November 2, 1942, the United States reassured France
…that the restoration of France to full independence, in all the greatness and vastness
which it possessed before the war in Europe as well as overseas, is one of the war aims
of the United Nations. It is thoroughly understood that French sovereignty will be re‐
established as soon as possible throughout all the territory, metropolitan and colonial,
over which flew the French flag in 1939.640
In 1939, the French flag flew over the Spratlys and the Paracels. Similarly, at the Tehran
Conference in November‐December 1943, the Allied Powers recognized French sovereignty
over Indochina.641
f. Post‐War Occupation
China maintains that Nationalist forces accepted the surrender of Japanese forces in the
South China Sea at the end of World War II and rightfully “retook” possession of the Paracel
and Spratly Islands on behalf of China in 1946. This position is seriously misplaced. Nationalist
Chinese troops did, in fact, occupy the islands at the conclusion of the Second World War.
However, these troops were simply sent to Itu Aba and Woody Islands to disarm and accept the
637
sovereignty over Paracel and Spratly Islands, note 203 supra; NATIONAL COMMITTEE OF BORDER AFFAIRS White Paper; M.
638
Id.; accord H. Nguyen, note 204 supra, at p. 187 (“The silence of the ROC at the Cairo and Potsdam conferences
regarding the Paracels and Spratlys constitutes proof of the Chinese indifference to these islands.”).
639
Several months later, on April 13, 1942, the Acting U.S. Secretary of State delivered a note to the French
Ambassador in Washington indicating that the U.S. government “recognizes the sovereign jurisdiction of…France
over the territory of France and over French possessions overseas.” United States Position with Respect to French
Territory After the War, Jan. 7, 1944, THE PENTAGON PAPERS, UNITED STATES‐VIETNAM RELATIONS (1945‐1967), Part V.B.1.,
at pp. 27‐28, available at http://www.archives.gov/research/pentagon‐papers/.
640
Letter of Robert D. Murphy to General Henri Giraud, Nov. 2, 1942, THE PENTAGON PAPERS, UNITED STATES‐VIETNAM
RELATIONS (1945‐1967), Part V.B.1., at p. 16, available at http://www.archives.gov/research/pentagon‐papers/.
641
Memorandum of Conversation between President Roosevelt and Marshal Stalin, Nov. 28, 1943, THE PENTAGON
PAPERS, UNITED STATES‐VIETNAM RELATIONS (1945‐1967), Part V.B.1., at pp. 24‐25, available at
98
surrender of the Japanese forces that had been stationed there during the war. General Order
Number 1, issued by General Douglas MacArthur on September 2, 1945, directed that “the
senior Japanese commanders and all ground, sea, air and auxiliary forces within China
(excluding Manchuria), Formosa and French Indo‐China north of 16 north latitude shall
surrender to Generalissimo Chiang Kai‐shek,” while Japanese forces in French Indo‐China south
of 16 degrees north latitude would surrender to the British (Supreme Allied Commander South
East Asia Command).642 The order was not intended to transfer title of the Spratly and Paracels
Islands to China.
Subsequently, the Republic of China and France agreed in February 1946 that French
troops would relieve Chinese Nationalist forces stationed in Indochina north of the 16th degree
of latitude (which included both the Paracel and Spratly Islands) no later than March 31,
1946.643 As an occupation force, the Nationalist troops had a legal obligation to depart French
Indochina by the 31st of March, but they failed to do so. The fact that Chinese forces illegally
remained on Itu Aba and Woody Islands after the Allied occupation of Indochina formally ended
in March 1946 was a clear violation of Article 2(4) of the UN Charter and, therefore, does not
provide China with clear title to the two archipelagoes.644 Accordingly, China’s claim to the
South China Sea islands, based on its post‐war occupation, has no legal basis under
international law.
g. San Francisco Peace Conference

The MFA claims that Chinese sovereignty over the South China Sea islands was
recognized during the drafting of the 1951 Treaty of Peace with Japan. In this regard, the MFA
cites a statement by the Head of the Delegation of the Soviet Union, Andrei Gromyko, which
criticized the American‐British draft of the treaty for failing to return the South China Sea
islands to China.645
China’s reliance on Gromyko’s statement to support its position on the South China Sea
islands, however, is problematic for a number of reasons. First, Gromyko’s demand for a vote
was overwhelmingly defeated by the Conference by a vote of 46 to 3 (with 1 abstention).646
642
Supreme Commander for the Allied Powers, General Order No. One, Sept. 2, 1945, available at
643
North Indochina, Chungking, Feb. 28, 1946, U.N.T.S. Vol. 14, 1948, at p. 151. See also M. Chemillier‐Gendreau, note
15 supra, at p. 40.
644
Charter of the United Nations, signed June 26, 1945, entered into force Oct. 24, 1945. Accord M. Chemillier‐
Gendreau, note 15 supra, at p. 26 (“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 military occupation denounced
as such cannot, ever, in any way, become a valid, recognized title.”).
645
Statement of the First Deputy Minister of Foreign Affairs of the USSR, A. A. Gromyko, at the San Francisco
Conference of 1951, Sept. 8, 1951 (“…original Chinese territories which were severed from…[China], such as
Taiwan (Formosa), the Pescadores [Penghu Islands], the Paracel Islands and other Chinese territories, should be
returned to the Chinese People’s Republic. …The draft contains only a reference to the renunciation by Japan of its
rights to these territories but intentionally omits any mention of the further fate of these territories. …”).
646
Western Powers Foil Soviet Attempt To Stall San Francisco Conference, THE EVENING CITIZEN (OTTAWA, CANADA),
Sept. 8, 1951. See also H. Roque, note 208 supra, at p. 193; T. Kelly, note 133 supra; SOUTH CHINA SEA STUDIES (2012),
at p. 3; Nguyen Ba Dien, note 203 supra; Historical documents on Vietnam’s sovereignty over Paracel and Spratly
99
Second, the final text of Article 2 of the Treaty treats Japan’s renunciation of rights to Taiwan
and the Penghu Islands and the Spratly and Paracel Islands in two separate subparagraphs.647
Thus, albeit not specifically stated in the text, Japan presumably renounced its rights to Taiwan
and the Penghus in favor of China and its rights to the Spratlys and the Paracels in favor of
France. Finally, Vietnam reaffirmed its rights to the South China Sea islands during the seventh
plenary session of the Conference. On September 7, 1951, the head of the Vietnamese
delegation to the Conference, Prime Minister Tran Van Huu, stated “…as we must frankly profit
from all the opportunities offered to us to stifle the germs of discord, we affirm our right to the
Spratly and Paracel Islands, which have always belonged to Vietnam.”648 None of the 51 nations
represented at the Conference objected to this statement.649
Granted, neither the PRC nor the ROC was invited to participate in the San Francisco
Peace Conference. Therefore, the PRC was not in a position to object to the Vietnamese
statement at the Conference. Nonetheless, Chinese Premier Zhou En‐lai did issue a lengthy
statement criticizing the U.S.‐UK draft on August 15, 1951, and reiterating China’s claims to the
South China Sea islands.650 So the fact that the PRC did not object to the Vietnamese statement
at the Conference is of little consequence.
It should be noted, however, that in 1951 not all nations recognizeed the PRC as the
legitimate government of China. The lawful representative of China to the United Nations
between 1945 and 1971 was the Republic of China (ROC).651 The ROC joined the United Nations
M. Chemillier‐Gendreau, note 15 supra, at pp. 41 and 121.
647
Article 2 of the Treaty of Peace with Japan (Sept. 8, 1951) provides that:
(a) Japan recognizing the independence of Korea, renounces all right, title and claim to Korea, including the islands
of Quelpart, Port Hamilton and Dagelet.
(b) Japan renounces all right, title and claim to Formosa and the Pescadores.
(c) Japan renounces all right, title and claim to the Kurile Islands, and to that portion of Sakhalin and the islands
adjacent to it over which Japan acquired sovereignty as a consequence of the Treaty of Portsmouth of 5
September 1905.
(d) Japan renounces all right, title and claim in connection with the League of Nations Mandate System, and
accepts the action of the United Nations Security Council of 2 April 1947, extending the trusteeship system to the
Pacific Islands formerly under mandate to Japan.
(e) Japan renounces all claim to any right or title to or interest in connection with any part of the Antarctic area,
whether deriving from the activities of Japanese nationals or otherwise.
(f) Japan renounces all right, title and claim to the Spratly Islands and to the Paracel Islands.
648
649
H. Chiu and C. Park, note 42 supra, at pp. 8 and 14; see also B. Murphy, note 29 supra, at pp. 192‐193, 201; T.
Kelly, note 133 supra; SOUTH CHINA SEA STUDIES (2012), at p. 3; Nguyen Ba Dien, note 203 supra; H. Nguyen, note 204
supra, at p. 187; Historical documents on Vietnam’s sovereignty over Paracel and Spratly Islands, note 203 supra;
650
“[The Paracel Islands and Spratly Islands] have always been China’s territory. …Whether or not the U.S.‐British
Draft Treaty contains provisions on this subject and no matter how these provisions are worked, the inviolate
sovereignty of the People’s Republic of China over Nanwei Islands [Spratly Islands] and Hsisha Islands [Paracel
Islands] will not be in any way affected.” Shen I, at p. 50. See also Shen II, at pp. 138, 145‐146.
651
UNGA Res. A/RES/26/2758 (Oct. 25, 1971), Restoration of the lawful rights of the People’s Republic of China in
the United Nations.
100
in 1945 and retained its membership and seat on the Security Council until October 25, 1971.
On that date, the United Nations General Assembly passed Resolution 2758, recognizing the
People's Republic of China as the only lawful representative of China to the United Nations and
expelling the Republic of China from the organization.652 Therefore, Zhou En‐lai’s statement did
not necessarily reflect the Chinese government’s official position on this matter and there is no
evidence that the ROC publicly objected to Prime Minister Tran’s statement.
Chinese scholars nevertheless argue that, despite Vietnam’s statement at the Peace
Conference, the fact that the 1951 Peace Treaty fails to “identify whom the South China Sea
islands should be returned is itself a rejection of Vietnam’s claims.”653 A similar argument has
been advanced by China regarding French claims—as one of the major powers at the Peace
Conference, France “would not have allowed the…Treaty to fail to specifically mention France
as the recipient of the Paracels and Spratlys.”654
Of course, these arguments ignore the fact that Article 2 of the Treaty is silent on the
post‐war status of all the territories over which Japan renounced its rights. Moreover, as
mentioned above, Japan’s renunciation of rights to Taiwan and the Penghu (Pescadores) Islands
on the one hand, and the Spratly and Paracel Islands on the other, is contained in two separate
subparagraphs of Article 2 of the 1951 Treaty. Had the drafters of the treaty intended to return
the islands to only one nation, they would not have included them in two separate
subparagraphs. This bifurcation is also consistent with the Cairo Declaration, which specifically
states that only Manchuria, Formosa (Taiwan), and the Pescadores (Penghu Islands) would be
returned to China at the end of the war. Thus, as the Vietnamese Foreign Ministry correctly
points out, it is clear that each subparagraph in Article 2 of the Treaty is relevant to the rights of
one particular country:
 subparagraph (b)—the rights of China to Formosa and the Pescadores;

 subparagraph (c)—the rights of the Soviet Union to the Kurile Islands and a portion
of Sakhalin
 subparagraph (d)—the trusteeship rights conferred upon the United States
652
UNGA Res. A/RES/26/2758 (Oct. 25, 1971), Restoration of the lawful rights of the People’s Republic of China in
the United Nations.
The General Assembly,
Recalling the principles of the Charter of the United Nations,
Considering that the restoration of the lawful rights of the People’s Republic of China is essential both for the
protection of the Charter of the United Nations and for the cause that the United Nations must serve under
the Charter,
Recognizing that the representatives of the Government of the People’s Republic of China are the only lawful
representatives of China to the United Nations and that the People’s Republic of China is one of the five
permanent members of the Security Council,
Decides to restore all its rights to the People’s Republic of China and to recognize the representatives of its
Government as the only legitimate representatives of China to the United Nations, and to expel forthwith the
representatives of Chiang Kai‐shek from the place which they unlawfully occupy at the United Nations and in
all the organizations related to it.
653
Shen I, at pp. 51, 58‐59.
654
Id., at p. 58. See also B. Murphy, note 29 supra, at p. 192.
101
 subparagraph (f)—the rights of France/Vietnam to the Spratly and Paracel Islands.655
Vietnam’s position regarding Article 2 of the Treaty is supported by statements made in

1952 during a debate in the Assembly of the French Union regarding the meaning of the Peace
Treaty with Japan. Commenting on the failure of the Treaty to specify to whom the South China
Sea islands would be returned, the Rapporteur of the Foreign Relations Committee—Nguyen
Khac Su—stated that “…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.”656 Maurice Schumann,
Secretary of State in the Ministry of Foreign Affairs, similarly stated that “…the Spratlys and
Paracels form part of the dominion of the French Union” and the Counselor of the Assembly,
Buu Kinh, also recalled Vietnam’s rights to the archipelagoes.657
The absence of a specific reference to France in the 1951 Treaty can also be explained
by the fact that there was a split within the alliance regarding French control over Indochina
after the war, which, in and of itself, is a recognition of French sovereignty over Indochina,
including the South China Sea islands. China, the Soviet Union, and the United States favored
placing Indochina under a system of trusteeship, while Great Britain favored returning the
former French colony to France. The split was not, however, over the validity of French
sovereignty over Indochina, but rather over France’s collaboration with the Nazis and poor
French administration of its former colony.658
President Roosevelt’s position can be traced to the Atlantic Charter, which espoused
support for national self‐determination and independence.659 The United States maintained its
655
656
657
Id., at p. 42. It should be noted, however, that the Rapporteur for the act of ratification of the Treaty, Maurice
Faure, stated during the debate that he considered that the islands had become terra nullius. This statement,
however, is clearly inconsistent with French statements and acts in both the Paracels and Spratlys during the 1950s
discussed below. Id.
658
At the Tehran Conference in 1943, Marshal Stalin indicated that “France should not get back Indo‐China and
that the French must pay for their criminal collaboration with Germany.” President Roosevelt “said he was 100% in
agreement with Marshal Stalin…, that after 100 years of French rule in Indo‐China, the inhabitants were worse off
than they had been before” and “that he had discussed with Chiang Kai Shek the possibility of a system of
trusteeship for Indo‐China….” Memorandum of Conversation between President Roosevelt and Marshal Stalin, Nov.
28, 1943, THE PENTAGON PAPERS, UNITED STATES‐VIETNAM RELATIONS (1945‐1967), Part V.B.1., at pp. 24‐25, available at
http://www.archives.gov/research/pentagon‐papers/. The British were opposed to the idea of a trusteeship
because they feared “the effect it would have on their own possessions and those of the Dutch.” The British “have
never liked the idea of trusteeship because it is…aimed at future independence.” Memorandum by President
Roosevelt to the Secretary of State, Jan. 24, 1944, THE PENTAGON PAPERS, UNITED STATES‐VIETNAM RELATIONS (1945‐
1967), Part V.B.1., at p. 30, available at http://www.archives.gov/research/pentagon‐papers/. At the Yalta
Conference in February 1945, President Roosevelt “said he…had in mind a trusteeship for Indochina. He added
that the British did not approve of this idea as they wished to give it back to the French since they feared the
implications of a trusteeship as it might affect Burma.” Memorandum of Conversation between President Roosevelt
and Marshal Stalin, Feb. 8, 1945, THE PENTAGON PAPERS, UNITED STATES‐VIETNAM RELATIONS (1945‐1967), Part V.B.1., at
p. 59, available at http://www.archives.gov/research/pentagon‐papers/.
659
“The President of the United States…and the Prime Minister…[of] the United Kingdom…deem it right to make
known certain common principles in the national policies of their respective countries…. Second, they desire to see
no territorial changes that do not accord with the freely expressed wishes of the peoples concerned. Third, they
102
position of ambivalence towards Indochina until shortly before the death of President
Roosevelt on April 12, 1945.660 On April 3rd of that year, Secretary of State Stettinius released a
statement regarding the proposal to establish the United Nations that, inter alia, addressed the
issue of territorial trusteeship:
As to territorial trusteeship, it appeared desirable that the Governments represented at

Yalta, in consultation with the Chinese Government and the French Provisional
Government, should endeavor to formulate proposals for submission to the San
Francisco conference for a trusteeship structure as a part of the general Organization.
This trusteeship structure, it was felt, should be designed to permit the placing under it
of the territories mandated after the last war, and such territories taken from the
enemy in this war as might be agreed upon at a later date, and also such other
territories as might voluntarily be placed under trusteeship. No discussion was had at
Yalta or is contemplated prior to, or at, San Francisco regarding specific territories.661
The following day, Secretary Stettinius informed French Ambassador Bonnet that the United
States would provide assistance to “French Forces in Indo‐China…to undertake operations
against the Japanese in Indo‐China, provided such action does not interfere with operations
planned elsewhere.”662 Thereafter, the issue of trusteeship status for Indochina became a
matter for the French to decide.
This policy continued under the Truman administration. In June 1945, the U.S.
Ambassador to China was informed that the establishment of a trusteeship in Indochina would
not occur without the consent of the French government.663 Three months later, the French
overthrew the government of the Democratic Republic of Vietnam, established by Ho Chi Minh
on the 2nd of September, and declared that French authority had been restored in
respect the right of all peoples to choose the form of government under which they will live; and they wish to see
sovereign rights and self‐government restored to those who have been forcibly deprived of them….” Atlantic
Charter, Aug. 14, 1941, available at http://avalon.law.yale.edu/wwii/atlantic.asp.
660
See Memorandum by President Roosevelt to the Secretary of State, Aug. 28, 1944, THE PENTAGON PAPERS, UNITED
STATES‐VIETNAM RELATIONS (1945‐1967), Part V.B.1., at p. 35; Memorandum by President Roosevelt to the Secretary of
State, Oct. 16, 1944, THE PENTAGON PAPERS, UNITED STATES‐VIETNAM RELATIONS (1945‐1967), Part V.B.1., at p. 37;
Memorandum by President Roosevelt to the Under Secretary of State, Nov. 3, 1944, THE PENTAGON PAPERS, UNITED
STATES‐VIETNAM RELATIONS (1945‐1967), Part V.B.1., at p. 40; Extract from Under Secretary of State Stettinius Diary,
Jan. 1, 1945, THE PENTAGON PAPERS, UNITED STATES‐VIETNAM RELATIONS (1945‐1967), Part V.B.1., at p. 45; Memorandum
for the Secretary of State, Mar. 17, 1945, THE PENTAGON PAPERS, UNITED STATES‐VIETNAM RELATIONS (1945‐1967), Part
V.B.1., at p. 30, available at http://www.archives.gov/research/pentagon‐papers/.
661
Statement by Secretary of State Stettinius on Representation in the Assembly of the Proposed United Nations
Organization, U.S. STATE DEPT. BULLETIN, Apr. 3, 1945, available at
http://www.ibiblio.org/pha/policy/1945/450403a.html.
662
Note from the Secretary of State to the French Ambassador (Bonnet), Apr. 4, 1945, THE PENTAGON PAPERS, UNITED
STATES‐VIETNAM RELATIONS (1945‐1967), Part V.B.1., at p. 72, available at
663
THE PENTAGON PAPERS, VIETNAM AND THE UNITED STATES (1940‐1950), Vol. I, at p. A‐21, available at
103
Cochinchina.664 The following month (October 1945), the United States issued its policy
regarding Indochina:
US has no thought of opposing the reestablishment of French control in Indochina and

no official statement by US GOVT has questioned even by implication French
sovereignty over Indochina. However, it is not the policy of this GOVT to assist the
French to reestablish their control over Indochina by force and the willingness of the US
to see French control reestablished assumes that French claim to have the support of
the population of Indochina is borne out by future events.665
h. International Civil Aviation Organization (ICAO) Conference

China additionally relies on actions taken at the first ICAO Conference on Asia‐Pacific
Regional Aviation held in Manila in October 1955 to support its claims to the South China Sea
islands.666 The Conference unanimously adopted Resolution No. 24, asking Taiwan “to improve
meteorological observation on the Spratly Islands four times a day.”667 According to Chinese
sources, none of the delegations present at the conference, including South Vietnam, objected
to the resolution.
The significance of the ICAO resolution is minimal, at best, and is not international
recognition of Chinese sovereignty over the Spratly Islands. Clearly, Taiwan was in the best
position geographically and physically to perform the increased meteorological observations
because it occupied both the Pratas Island and Itu Aba Island (albeit illegally) and had
constructed a weather station on Itu Aba in 1946. That is not to say, however, that ICAO or its
member states recognized Taiwanese sovereignty over these islands.
i. North Vietnamese Indifference

China also should not rely on statements and activities by North Vietnamese officials in
the mid 1950s and early 1960s to support its claim over the South China Sea islands. First, there
is no independent evidence to corroborate China’s assertion that the North Vietnamese Deputy
Minister of Foreign Affairs and the Deputy Director of the Asia Division of the Foreign Ministry
acknowledged at a meeting with Chinese officials in June 1956 that the Spratly and Paracel
Islands were historically part of China. The alleged statements, therefore, cannot be viewed as
legally valid pronouncements.668 Nor is there evidence that these officials had the authority to
make such a pronouncement. As Vietnamese scholars point out, a deputy foreign minister and
other lower‐ranking government officials generally do “not…have the authority to represent a
State in such matters.”669 Therefore, assuming that the statements were made as alleged, they
664
Id., at p. A‐22.
665
Id., at p. A‐23.
666
Other nations attending included: Australia, Canada, Chile, Dominica, France, Laos, Japan, New Zealand, the
Philippines, the Republic of Korea, Thailand, the United Kingdom, and the United States. MFA, The Issue of South
China Sea.
667
Id.
668
669
SOUTH CHINA SEA STUDIES (2012), at p. 5; see also H. Nguyen, note 204 supra, at p. 190 (“…Ung Van Kheim’s
statement…,if it had existed, was not made in the context of territorial negotiations.”).
104
would not be legally binding on the government of Vietnam. Nonetheless, given that South
Vietnam (not North Vietnam) was the successor state to France’s title to the Paracels and
Spratlys, “no statement made by…[North Vietnam] can be said to have been made in the
context of a dispute or negotiation over these archipelagoes between it and China….”670
Second, Prime Minister Pham Van Dong’s letter to Chinese Premier Zhou En‐lai
concerning China’s territorial sea declaration in September 1958 simply expresses support for
China’s 12 nm territorial sea extension—it does not recognize Chinese sovereignty over the
Paracel and Spratly Islands.671 Moreover, even if viewed as a renunciation of rights to the
islands, South Vietnam (as the successor state to France), not North Vietnam, was in control of
the Paracel and Spratly Islands in 1958. The Geneva Accords of 1954 divided North and South
Vietnam at the 17th parallel pending reunification through free elections to be held by July 20,
1956.672 Both the Paracels (16°30'N‐112°00'E) and the Spratlys (10°N‐114°E) lie south of the
17th parallel; therefore, both were under South Vietnamese administration.673 As a result, North
Vietnam “neither had de jure title nor exercised de facto sovereignty over the Paracels and
Spratlys” and was not in a position to relinquish the territory.674 In short, North Vietnam had
nothing to renounce.675
Any North Vietnamese expression of support for China must also take into consideration
the political realities of the 1950s.676 Following the division of Vietnam in 1954, North Vietnam
relied almost exclusively on China for material and political support in its war against the South.
It would have been problematic, at best, for North Vietnam not to express support for its
Communist ally, which was at the time facing its own military threat from U.S. naval activities in
the Taiwan Strait.677 The same can be said for the statement issued by North Vietnam in May
670
Id.
671
H. Nguyen, note 204 supra, at pp. 190, 193; accord M. Chemillier‐Gendreau, note 15 supra, at pp. 129‐130
(“…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 claims to the archipelagoes.”).
672
Agreement on the Cessation of Hostilities in Viet‐nam, July 20, 1954 [hereinafter The Geneva Accords], available
at http://avalon.law.yale.edu/20th_century/inch001.asp.
673
H. Nguyen, note 204 supra, at p. 191; accord M. Chemillier‐Gendreau, note 15 supra, at pp. 127‐128 (“The
territorial partition at the 17th parallel placed both archipelagoes in South Vietnam’s zone. It was therefore for the
Saigon administration, the Saigon administration alone, to voice its claims to the islands. It did so…as the successor
to the former rights of France over the two archipelagoes….”).
674
Id.
675
H. Nguyen, note 204 supra, at p. 191; accord SOUTH CHINA SEA STUDIES (2012), at p. 6; M. Chemillier‐Gendreau,
note 15 supra, at p. 130 (“…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.”).
676
M. Chemillier‐Gendreau, note 15 supra, at p. 130 (“…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.”).
677
On August 24, 1958, “after Chinese Communists began heavy shelling of the Kinmen Islands and there were
renewed indications of naval activity in Taiwan Straits, units of the Seventh Fleet moved to the Taiwan area to
support the Republic of China in a firm stand against aggression. As tension remained high and warlike action
continued, ship reinforcements, including aircraft carriers, were sent to the area. By October the tension lessened
and the situation became somewhat stabilized.” The New Navy (1954–1959), Naval History and Heritage
105
1965 regarding the U.S.‐declared war zone for Vietnam and its adjacent waters, and the May
1969 news story in the Vietnamese daily Nhan Dan, both of which purportedly recognized
Chinese sovereignty over the Paracels.
In 1988, the Vietnamese government acknowledged the existence of Pham’s letter to
Zhou, but the MFA explained the historical context in which the statements were made:
…the nation was embroiled in a desperate war for survival when the statements were
made; therefore what appeared to be a concession of the Truong Sa to the PRC was
actually just a strategic move to deny the United States use of the archipelago and the
East Sea. Hanoi believed that any PRC sovereignty over the Truong Sa would be
temporary: Viet Nam trusted China in all sincerity and believed that after the war all
territorial problems [between the two countries] would be suitably resolved. ...678
Therefore, when Pham wrote the letter in 1958, Vietnam did not intend to permanently
relinquish its claims to the Paracels.
Nevertheless, China argues that the principle of estoppel precludes Vietnam from taking
a position contrary to its earlier stance regarding Chinese sovereignty over the South China Sea
islands. Although estoppel is a well‐settled principle of international law that has been applied
by the ICJ to resolve a number of territorial disputes, a careful analysis of the Court’s
application of this principle to the facts of the current dispute does not support China’s position
with regard to Vietnam.
The ICJ has applied estoppel in limited cases where (1) a clear and consistent statement,
declaration, or representation (or past conduct) made by one party to another is (2) relied upon
by the other party to its detriment or to the advantage of the party making the statement,
etc.679 China has not provided sufficient evidence to satisfy either of these elements.680
Command, p. 223, http://www.history.navy.mil/avh‐1910/PART08.PDF. See also H. Nguyen, note 204 supra, at p.

194.
678
679
Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), I.C.J. Reports 1962, p. 6, 32 (“Even if there
were any doubt as to Siam’s acceptance of the map in 1908…, the Court would consider…that Thailand is now
precluded by her conduct from asserting that she did not accept it. …France, and through her Cambodia, relied on
Thailand’s acceptance of the map. …it is immaterial whether or not this reliance was based on a belief that the
map was correct. It is not now open to Thailand…to deny that she was ever a consenting party to it.”); North Sea
Continental Shelf, I.C.J. Reports 1969, p. 3, 26 (“…it appears to the Court that only the existence of a situation of
estoppel could suffice to lend substance to this contention—that is to say if the Federal Republic were now
precluded from denying the applicability of the conventional regime, by reason of past conduct, declaration, etc.,
which not only clearly and consistently evinced acceptance of that regime, but also had caused Denmark or the
Netherlands, in reliance of such conduct, detrimentally to change position or suffer some prejudice. …”); Military
and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) I.C.J. Reports 1984, p.
392, 415 (“…estoppel may be inferred from the conduct, declarations and the like made by a State which is not
only clearly and consistently evinced acceptance by that State of a particular regime, but also had caused another
State or States, in reliance on such conduct, detrimentally to change position or suffer some prejudice. …”); Land,
Island and Maritime Frontier Dispute (El Salvador/Honduras), I.C.J. Reports 1990, p. 92, 118 (“So far as Nicaragua
relies on estoppel, the Chamber will only say that it sees no evidence of some essential elements required by
estoppel: a statement or representation made by one party to another and reliance upon it by that other party to
his detriment or to the advantage of the party making it. …”)
106
To begin, Prime Minister Pham’s letter to Premier Zhou expressed support for China’s
12 nm territorial sea extension, not Chinese sovereignty over the South China Sea islands, and
indicated that Vietnam would respect the breadth of China’s territorial sea as being 12 nm. The
letter, unquestionably, does not represent a “clear and consistent” recognition of Chinese
sovereignty over the South China Sea islands and therefore fails to meet the first element of
estoppel. The same is true for the statements purportedly made during the 1960s. Moreover,
there is no evidence that China relied on any of these statements to its detriment—since 1949,
the PRC has continued to assert China’s indisputable sovereignty over all of the South China Sea
islands and has protested or taken action against “each and every foreign claim to and invasion
of…the South China Sea Islands….”681 Accordingly, estoppel does not apply to the current
dispute.
Similarly, it is highly unlikely that the ICJ or other tribunal would find that the
Vietnamese government’s statement in 1965 regarding the U.S.‐declared war zone for Vietnam
and its adjacent waters warrants application of the principle of estoppel. In a similar situation
involving Singapore and Malaysia, the ICJ held that estoppel did not apply even though one of
the parties to the dispute had specifically stated that it did not claim ownership over a disputed
rock.682
The Pedra Branca (Malaysia/Singapore) case involved a dispute between Malaysia and
Singapore regarding sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South
Ledge. On June 12, 1953, the Colonial Secretary of Singapore wrote a letter to the British
Advisor to the Sultan of Johor requesting information about Pedra Branca, which is situated
about 40 miles from Singapore, in order to determine the boundaries of Singapore’s territorial
waters. Specifically, the Colonial Secretary said,
It is now desired to clarify the status of Pedra Branca. I would therefore be most grateful
to know whether there is any document showing a lease or grant of the rock or whether
it has been ceded by the Government of the State of Johore or in any other way
disposed of.683
The letter was passed to the State Secretary of Johor and three months later, on September 21,
1953, the Acting State Secretary of Johor replied: “I have the honour to refer to your
letter…dated 12th June 1953…, on the question of the status of Pedra Branca Rock…and to
inform you that the Johore Government does not claim ownership of Pedra Branca.”684 No
further correspondence was exchanged between the parties and Singaporean authorities took
no public action upon receipt of the letter.
680
SOUTH CHINA SEA STUDIES (2012), at p. 6; accord H. Nguyen, note 204 supra, at pp. 194‐195.
681
682
Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), I.C.J.
Reports 2008, p. 12.
683
Id., at p. 73.
684
Id., at p. 74.
107
First, Singapore argued that Johor’s reply was “a formal or express disclaimer of title”;
second, Singapore invoked the principle of estoppel; and third, Singapore “contended that the
reply was a binding unilateral undertaking.”685
With regard to the first issue, the Court held that it did “not consider the Johor reply as
having a constitutive character in the sense that it had a conclusive legal effect on Johor.”686
Rather, the Court found that the reply was simply “a response to an enquiry seeking
information” and that “its denial of ownership was made in that context.”687 Similarly,
regarding Singapore’s position that the reply was a binding unilateral undertaking, the Court
indicated “that when it is claimed that States make statements by which their freedom of
action is to be limited, a restrictive interpretation is called for….”688 The Court then observed
that the reply “was not made in response to a claim by Singapore or in the context of a dispute
between them” and that, therefore, the denial of ownership could not “be interpreted as a
binding undertaking.”689 The same analysis would apply to Vietnam’s statement about the 1965
war zone.
Finally, with regard to the application of estoppel, the Court pointed out that “a party
relying on an estoppel must show, among other things, that it has taken distinct acts in reliance
on the other party’s statement…” and that Singapore had not pointed to any such acts.690 On
the contrary, after receiving the reply, Singapore “had no reason to change its behavior…” and
its actions after 1953 “were a continuation and development of the actions it had taken over
the previous century.”691 Therefore, estoppel did not apply. Similarly, there is no evidence that
China has relied on the Vietnamese statement or changed its behavior with regard to its
sovereignty claims in the South China Sea. Like Singapore, China’s actions after the Vietnamese
statements were made simply constitute a continuation of actions it had taken since the 1940s.
Consequently, estoppel does not apply.
j. Other Supporting Publications

China additionally cites a number of foreign publications to support its position that the
international community recognizes the PRC’s claims to the South China Sea islands. Although
the list is extensive, none of the cited documents reflect official government recognition of
China’s claims; therefore, they are of little probative value in assessing China’s claimed
sovereignty over the disputed islands.
B. Evaluating Vietnam’s Position

Vietnam believes that the broad range of actions taken by Vietnamese and French
authorities over several hundred years provides incontrovertible evidence of Vietnam’s
comprehensive, continuous, peaceful and uncontested effective control of the Paracels.
According to the MFA, Vietnamese sovereignty was first established between the 15th and 18th
685
Id., at p. 81.
686
Id.
687
Id., at pp. 81‐82.
688
Id., at p. 82.
689
Id.
690
Id., at p. 81.
691
Id.
108
centuries; consecrated by Emperors Gia Long and Minh Ming in the 19th century; temporarily
assumed by the French during the second half of the 19th century and first half of the 20th
century; and finally continued in an open, peaceful and normal manner by an independent
Vietnam. These actions include, inter alia, (1) approving international contracts connected with
the islands’ economy; (2) conducting law enforcement operations against illegal Chinese aliens
and illicit trafficking in weapons and opium; (3) conducting systematic exploitation of the
islands’ natural resources; (4) providing guarantees to other states; (5) stationing troops and
civilian government officials on the islands; (6) protesting Chinese and Japanese incursions; (7)
building shrines and temples; (8) collecting tax revenues; (9) organizing and conducting state‐
sponsored surveys and scientific studies of the islands; (10) organizing and conducting
hydrographic surveys of the sea routes and planting of trees on the islands to enhance safety of
navigation; (11) providing assistance to foreign ships in distress; and (12) securing the sea lanes
for maritime traffic.
Vietnam asserts that France, on behalf of Vietnam, also conducted various activities that
confirmed French sovereignty over the Spratly Islands, particularly in 1933 when France
formally annexed and occupied a number of features in the archipelago on behalf of Vietnam.
At the time, France’s annexation of the islands was strictly in compliance with existing
international law and state practice. Although Japan successfully challenged France’s
occupation between 1941 and 1945, Japan was forced to relinquish her claims to the South
China Sea islands following the 1951 San Francisco Peace Conference and sovereignty of the
islands reverted back to France. Thereafter, French and Vietnamese actions, both before and
after the war, clearly demonstrate an effective and active presence in the archipelago, as well
as a peaceful exercise of sovereignty over the Spratly Islands.
1. Historical Evidence and Maps

Vietnam bases its claims to the Paracels and Spratlys, in part, on a series of historical
documents and maps dating back to the 15th century. China counters Vietnam’s assertions,
noting that the Paracel Islands described in Vietnamese historical records do not include the
Spratlys and are in reality coastal islands off Central Vietnam.692 Similarly, some Western
scholars believe that Vietnam’s historical claims, like China's, are somewhat vague, and there is
some doubt as to the authenticity and accuracy of its historical records and maps in that they
fail to “specifically identify and distinguish between the Spratly and Paracel archipelagoes.”693
Nevertheless, there is some independent evidence from non‐Vietnamese sources that
supports Vietnam’s assertion that the government has been sending ships and men to the
Paracels on a regular basis as far back as the early 17th century. Portuguese and Dutch maps
from the early 17th century purportedly identify the Paracels as Vietnamese territory.694 These
maps are consistent with the 1701 writings of a Western missionary on board the French ship
Amphitrite (Mystere des atolls‐Journal de voyage aux Paracels (Mystery of the atolls—Journal of
the voyage to the Paracel Islands)), which reflect that the Paracels belonged to the Kingdom of
692
M. Bennett, note 14 supra, at p. 434; see also T. Kelly, note 133 supra.
693
C. Joyner, note 166 supra, at pp. 60‐61. As is the case with China’s cartographic evidence, Vietnamese historic
maps carry very little probative weight in determining the status of the South China Sea island
694
109
Annam.695 Even Chinese writings (Hai Lu’s Hai Quoc Do Chi) of the same era (1730) confirm
Vietnamese sovereignty over the Paracels.696 Additionally, a Chinese map of Kwangtung
(Guangdong) Province and a description of the Quiongzhou Prefecture published in 1731 do not
mention either the Paracels or the Spratlys as part of China.697
Western writings from the 19th century likewise support Vietnam’s historical claims to
the Paracels based on occupation and control. A book published in 1837 by French missionary
Monseigneur Jean‐Louis Taberd—Note on the Geography of Cochinchina—described the
Paracel Islands as part of Cochinchina.698 A second book published by the Monseigneur in
1838—History and Description of the Religion, Customs, and Morals of All Peoples—similarly
recorded that the archipelago had been a dependency of Cochinchina for 34 years.699 A
depiction of the Paracels as Vietnamese territory additionally appears in Taberd’s 1838 An Nam
Dai Quoc Hoa Do (Tabula geographica imperia Anamitici—The Map of the An nam Empire).700
Jean‐Baptiste Chaigneau’s memoires (Memoires sur la Cochinchina) likewise refer to
Emperor Gia Long’s annexation of the Paracels in 1816.701 A reference to the Paracels as
Vietnamese territory can also be found in Japon, Indo‐Chine, Empire Birman (ou Ava), Siam,
Annam (ou Cochinchine), Pèninsule Malaise, etc., Ceylan by the French explorer and author
Adolphe Philibert Dubois de Jancigny.702 Additionally, in his 1849 article Geography of the
Cochinchinese Empire, German missionary Karl Gützlaff “defined the Paracels as part of
Vietnam’s territory and noted the islands with the Vietnamese name ‘Cat Vang’.”703 The article
discusses Vietnamese economic development of the archipelago, as well as the presence of
Vietnamese revenue cutters and a small naval garrison in the Paracels to collect duties from
foreign fishermen and protect Vietnamese fishermen.704 Aldriano Balbi’s The Italian
Compendium of Geography (1850) similarly includes the Paracel, Pirate (Hà Tiên), and Puolo
695
Historical documents on Vietnam’s sovereignty over the Paracel and Spratly Islands, note 203 supra; see also
NATIONAL COMMITTEE OF BORDER AFFAIRS White Paper (“…the Paracel is an archipelago belonging to the Kingdom of An
Nam.”).
696
M. Chemillier‐Gendreau, note 15 supra, at p. 74 (“…Truong Sa…forms a rampart on the periphery of the
Kingdom of Annam (Vietnam).”).
697
Id., at p. 62.
698
699
700
701
“Cochinchina, the sovereign of which has today the title of Emperor, is composed of Cochinchina proper,
Tonquin, a part of the Kingdom of Cambodia, some uninhabited islands not far from the coast and the Paracels
archipelago, composed of uninhabited reefs and rocks. It is only in 1816 that the present Emperor took possession
of this archipelago.” H. Chiu and C. Park, note 42 supra, at p. 7; see also M. Chemillier‐Gendreau, note 15 supra, at
p. 69.
702
703
704
H. Nguyen, note 204 supra, at p. 182 (“We should…mention here the Paracels. …From time immemorial, junks
in large number from Hainan, have annually visited these shoals, and proceeded in their excursions as far as the
coast of Borneo. …The Annam government, perceiving the advantages which it might derive if a toll were raised,
keeps revenue cutters and a small garrison on the spot to collect the duty on all visitors, and to ensure protection
of its own fishermen.”).
110
Condor (Côn Sơn) Islands within the Kingdom of Annam.705 A Chinese map from 1894—Hong
Chao’s Map of the Unified Empire—which depicts Chinese territory as extending only as far as
Hainan Island, confirms the accuracy of these Western writings.
A letter from Chief Resident of Annam Le Fol to the Governor General of Indochina,
dated January 22, 1929, confirms that Vietnam effectively occupied the Paracels from the early
18th century onwards and provides detailed information about the administration of the islands
by former Vietnamese dynasties from the early years of the 19th century onwards.706 Chinese
writings from the early 20th century confirm the Chief Resident’s information. The 1906
Zhongguo Dilixue Jiaokeshu (Manual of Geography of China), states in the Generalities chapter
“that the Chinese territory is bound in the South at North latitude 18°13', the terminus being
the coast of Yazhou, island of Hainan.”707 A similar report is found in Li Hanzhung’s Geography
of Guandong, published in 1909, which indicates that China’s maritime frontiers in the south
ended at Hainan Island.708
Thus, while the historical evidence submitted by both claimants is subject to doubt,
independent sources appear to corroborate Vietnam’s position over that of China, particularly
with regard to the Paracels.
There is also considerable corroborated evidence that Vietnam systematically exploited
the Paracels since at least the middle of the 17th century, if not earlier. The exploits of the
Hoang Sa Company, under the direction of various Vietnamese dynasties, are well documented
in the historical works of Le Qui Don (Phu Bien Tap Luc (Miscellaneous Records on the
Pacification of the Frontiers), a representative of the Chinese Court in Vietnam.709 Items
recovered from shipwrecks during the annual government‐sponsored expeditions were handed
over to government officials for assessment at the conclusion of each expedition. Members of
the Company were exempt from paying personal taxes and were rewarded monetarily by the
government for their efforts.710 These expeditions were conducted openly and peacefully for
over 150 years without Chinese objection.
A book written by John Barrow in 1806—A Voyage to Cochinchina—which recorded the
travels of the British Envoy to the Chinese Court (Count George Macartney) in Cochinchina in
1793, confirms that Vietnam was economically exploiting the Paracels. The book contains a
detailed description of the efforts of the Hoang Sa detachments.711
705
706
M. Chemillier‐Gendreau, note 15 supra, at Annex 8 (Letter of 22 January 1929, from the Chief Resident of
Annam, Hué, to the Governor General of Indochina, Hanoi) (“…The Paracel archipelago…seems to have remained
res nullius until the beginning of the last century. …Monsignor Jean Louis Taberd…reports the occupation of the
Paracels…in 1816 by Emperor Gia Long…. Although doubts may be cast on the authenticity of the formal taking of
possession by Gia Long himself, the occupation was nonetheless effective….”).
707
Id., at p. 75.
708
H. Nguyen, note 204 supra, at p. 172 (“Today the maritime frontiers are limited in the South by the island of
Hainan….”).
709
M. Chemillier‐Gendreau, note 15 supra, at Annex 8 (Letter of 22 January 1929, from the Chief Resident of
Annam, Hué, to the Governor General of Indochina, Hanoi).
710
Id., at pp. 67, 69.
711
111
Economic exploitation of the South China Sea islands continued under French rule after
Vietnam became a part of the French Empire in 1887. French authorities in Indochina granted
licenses for the exploitation of phosphate deposits in both the Paracels and the Spratlys in the
1920s and 1930s. After Vietnam regained its independence, licenses were granted by the South
Vietnamese Ministry of Economy to both domestic and international companies to exploit
phosphate deposits in the Paracels—Le Van Cang (1956),712 Vietnam Fertilizers Company (1959‐
1963),713 Vietnam Phosphate Company (1960),714 and the Vietnam Fertilizer Company and
Marubeni Corporation of Tokyo joint venture (1973).715
Following the unification of the country in 1975‐76, the new government entered into
cooperative agreements with a number of countries, including Japan (July 1978) and the Soviet
Union (July 1980), to explore and exploit hydrocarbon reserves in and around the Spratlys.716
3. Effective Occupation and Administration

Vietnam has additionally presented convincing evidence that it effectively occupied and
administered the Paracels, beginning in 1802 and culminating in the formal annexation of the
archipelago by Emperor Gia Long in 1816.717 In 1946, legal experts from the French Foreign
Ministry determined that this annexation and flag‐raising ceremony were carried out in
conformity with the international law of the time and that “the annexation therefore conferred
legal title to Annam.”718
The 1816 annexation and flag‐planting ceremony are recorded in Reverend Jean‐Louis
Taberd’s 1837 “Note on the Geography of Cochinchina” (printed in the Journal of the Royal
Asiatic Society of Bengal, India).719 A similar report is contained in Jean‐Baptiste Chaigneau’s
Notice sur la Cochinchine.720 The first map published by the kingdom, in 1830, included the
Paracels (and presumably included the Spratlys) as part of Vietnamese territory.721 Search and
rescue services were also provided to foreign ships that wrecked near the Paracels (e.g., a
French merchant ship in 1830 and a British merchant vessel in 1836).722
In 1833, Emperor Minh Mang reinforced Vietnam’s sovereignty and administrative
control of the Paracels by ordering the planting of trees on the islands to enhance safety of
navigation in the hazardous waters around the archipelago.723 A mapping expedition of the
712
Id.; see also H. Nguyen, note 204 supra, at p. 188.
713
714
MFA White Paper (1974); see also Historical documents on Vietnam’s sovereignty over Paracel and Spratly
Islands, note 203 supra.
715
Id.; see also SOUTH CHINA SEA STUDIES (2012), at p. 3.
716
717
H. Roque, note 208 supra, at p. 192; see also B. Dubner, note 29 supra, at p. 311; H. Chiu and C. Park, note 42
supra, at p. 7; M. Chemillier‐Gendreau, note 15 supra, at p. 35.
718
M. Chemillier‐Gendreau, note 15 supra, at Annex 38 (Notes from the Legal Department, Paris, 6 September
1946).
719
Id.
720
Id., at p. 69.
721
722
Early evidence of Vietnamese search and rescue efforts in the islands dates back to 1634 (assistance provided to
the Dutch ship Gootebrok) and 1714 (assistance provided to three Dutch vessels). H. Nguyen, note 204 supra, at
pp. 182‐183.
723
112
islands was conducted the following year by a naval detachment and, in 1835, naval personnel
were deployed to the Paracels to build a temple on Bach Sa (white‐sand) Island.724 Additionally,
a plan to systematically survey and explore the islands was completed in 1836.725 That same
year, Emperor Minh dispatched a naval detachment to explore and map the entire archipelago
and erect sovereignty markers on several of the islands.726 Data collected during this expedition
were used to draw the Detailed Map of the Dai Nam (1838), which clearly reflected that the
Paracels and Spratlys were part of Vietnam.727 Thereafter, a naval detachment was deployed to
the Paracels each spring to improve knowledge of the sea routes around the archipelago and to
collect taxes on fishermen exploiting the region.728 Reports were also periodically prepared by
the Ministry of the Interior describing the expenditures and exploitation activities of the Hoang
Sa Company in the Paracels.729
These acts of sovereignty by successive Nguyen emperors were conducted openly and
peacefully, without objection by China.730 Therefore, not only did China fail to exercise
sovereignty over the archipelago, but, by its silence, it acquiesced in Vietnam’s claim to the
islands.
a. Effective Administration During the French Colonial Period

Effective occupation and control over the South China Sea islands continued under
French colonial rule until Vietnam regained its independence after World War II. An 1898
memorandum from the Ministry of the Colonies to the Government General of Indochina
discussed the building of a lighthouse in the Paracels in order to assert French sovereignty.731
Scientific studies of the islands were conducted, and French warships were tasked with securing
the sea lanes for maritime traffic and conducting search and rescue operations for wrecked
ships.732 By 1920, French customs officials in Indochina had begun making regular deployments
to the islands to counter illegal trafficking in weapons, munitions, and opium.733
French activities in the Paracel Islands continued unabated and unchallenged
throughout the 1920s and 1930s. French colonial institutions conducted a series of scientific
missions to the islands beginning in 1925, when scientists from the Oceanographic Institute of
Nha Trang, embarked on the French vessel De Lanessan, confirmed the existence of rich
phosphate deposits in the archipelago.734 Subsequent scientific survey missions were
conducted by the French ships Alerte, Astrobale, and Ingénieur‐en‐Chef Girod in 1927, 1928,
724
Id.
725
Id., at p. 69.
726
MFA White Paper (1974); see also Historical documents on Vietnam’s sovereignty over the Paracel and Spratly
Islands, note 203 supra; see also NATIONAL COMMITTEE OF BORDER AFFAIRS White Paper.
727
H. Chiu and C. Park, note 42 supra, at p. 7; T. Kelly, note 133 supra. Compare B. Dubner, note 29 supra, at p.
311.
728
729
Id., at p. 69.
730
Id., at p. 74.
731
Id., at p. 104.
732
733
H. Chiu and C. Park, note 42 supra, at pp. 7‐8; T. Kelly, note 133 supra; M. Chemillier‐Gendreau, note 15 supra,
at pp. 37, 101, 104.
734
H. Chiu and C. Park, note 42 supra, at p. 8; see also M. Chemillier‐Gendreau, note 15 supra, at pp. 37, 104.
113
and 1934.735 In 1929, the Pierre de Rouville delegation proposed that lighthouses be
constructed on Triton and Lincoln Islands, as well as on Da Bac (the North) and Bombay
Reefs.736 The crew of the French ship La Malicieuse also landed on a number of islets in the
Paracels in 1930 and planted flags and emplaced sovereignty columns, without objection from
the Chinese government.737
In contrast, during this same timeframe, France zealously protested attempted Chinese
incursions in the Paracels. On December 4, 1931, France diplomatically protested an
announcement by the Chinese government that it intended to invite bids from foreign
companies to exploit the phosphate deposits in the Paracels.738 France renewed its protest on
April 24, 1932, after China publicly called for bids, citing Vietnam’s former rights to the islands
as its legal basis.739
After China rejected France’s offer to have the Paracel dispute settled by an
international tribunal, the Governor General of Indochina designated the Paracels as an
administrative unit of Thua Thien (Huế) Province on June 15, 1932 (Decree No. 156‐SC).740 In
1937, the head of public works was dispatched to the Paracels by the French colonial
government to evaluate the possibility of constructing maritime and air traffic facilities on the
islands, as well as build a lighthouse on Pattle Island.741 Also in 1937, a second attempt to
resolve the outstanding dispute through international arbitration met with Chinese opposition.
As a result, Vietnamese troops (Garde Indochinoise) under the command of French officers
occupied the islands and erected sovereignty columns on a number of the islets in the
archipelago.742 A lighthouse, meteorological station, and radio station were also constructed on
Pattle Island.743
The following year, in March 1938, Emperor Bao Dai confirmed Decree No. 156‐SC in a
Vietnamese imperial ordinance.744 Then, on May 5, 1939, the Governor General of Indochina
divided the Paracel archipelago into two delegations— the Crescent Group and the Amphitrite
Group.745 Following the division, French civil service officers and Vietnamese police were
permanently stationed on Pattle Island (Crescent Group) and Woody Island (Amphitrite Group)
on a regular basis.746
French/Vietnamese forces remained in the Paracels until 1956, with a hiatus of several
years during Japan’s occupation of the islands during the Second World War. In February 1946,
France and China agreed that French troops would relieve Chinese troops stationed in
735
736
Historical documents on Vietnam’s sovereignty over the Paracel and Spratly Islands, note 203 supra; see also
737
738
Id., at pp. 38, 102.
739
Id.
740
Id., at pp. 39, 113.
741
Id., at pp. 38, 113.
742
Id., at p. 39
743
SOUTH CHINA SEA STUDIES (2012), at p. 2; see also NATIONAL COMMITTEE OF BORDER AFFAIRS White Paper; Historical
documents on Vietnam’s sovereignty over Paracel and Spratly Islands, note 203 supra.
744
745
Id., at p. 39.
746
Id.
114
Indochina north of the 16th degree of latitude (which includes both the Paracels and Spratlys)
no later than March 31, 1946.747 Accordingly, French forces were dispatched to re‐occupy the
Paracels in June 1946. Although these forces were withdrawn from the Paracels three months
later due to the ongoing French‐Vietminh War, French Chief of Staff of National Defense
General Alphonse Pierre Juin urged the Chairman of the Committee on Indochina to reoccupy
the Paracels in October 1946 in order to consolidate France’s legal position vis‐à‐vis China.748
Additionally, all ships calling on the Paracels were required to request permission from the
French High Commission in Saigon.749
Upon learning that Chinese Nationalist forces sent to the Paracels to accept the
surrender of the Japanese garrison had illegally remained in the archipelago following the
withdrawal of Allied occupation forces from French Indochina in 1946, France issued a formal
diplomatic protest on January 13, 1947.750 The warship Le Tonkinois was also deployed to the
area on January 17, 1947, to eject the Chinese Nationalists from Woody Island. Realizing that
they were outnumbered, however, the French‐Vietnamese forces retreated to Pattle Island.751
Later that year, the weather station that had operated on Pattle Island from 1938 to 1944 was
rebuilt.752 That same year, France again suggested that the ongoing dispute be submitted to the
ICJ for resolution, but China refused, insisting that French troops be immediately withdrawn
from the islands.753 The French hydrographic survey ship Ingenieur en chef Girod was
subsequently deployed to the Paracels in 1953 to conduct oceanographic, geologic, geographic
and ecological studies.754
As previously discussed, China’s assertion of sovereignty over the Paracels is also
contrary to its statement in 1896 concerning the vessels Bellona and Imegu Maru. When
confronted by British authorities after the shipwrecked vessels were looted by Chinese
fishermen, the Qing (Ch’ing) government denied ownership of the islands, stating “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.”755 A similar response was provided when Britain
747
Id., at pp. 40, 116; Exchange of Letters between China and France Relating to the Relief of Chinese Troops by
French Troops in North Indochina, Chungking, Feb. 28, 1946, U.N.T.S. Vol. 14, 1948, at p. 151.
748
M. Bennett, note 14 supra, at pp. 440‐441; M. Katchen, note 120 supra, at p. 1179; S. Tønnesson, note 55 supra,
at p. 11; M. Chemillier‐Gendreau, note 15 supra, at p. 40; M. Chemillier‐Gendreau, note 15 supra, at Annex 33
(Letter from General Juin, Chief of Staff of National Defense, to the Chairman of the Committee on Indochina, 7
October 1946).
749
Id., at pp. 117‐118.
750
M. Bennett, note 14 supra, at pp. 440‐441; see also M. Katchen, note 120 supra, at p. 1179.
751
Id.; see also S. Tønnesson, note 55 supra, at p. 11; M. Chemillier‐Gendreau, note 15 supra, at p. 40.
752
M. Bennett, note 14 supra, at pp. 440‐441; M. Katchen, note 120 supra, at p. 1179.
753
M. Chemillier‐Gendreau, note 15 supra, at Annex 35 (Telegram from Ministry of Foreign Affairs, Nanking, 8
March 1947), Annex 36 (Wire from Agence France Presse, Nanking, of 31 May 1947 and telegram of 3 June 1947),
Annex 42 (Note of 15 May 1950 from the Directorate for Asia‐Oceania).
754
Historical documents on Vietnam’s sovereignty over Paracel and Spratly Islands, note 203 supra; see also
755
M. Chemillier‐Gendreau, note 15 supra, at 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), Annex 12 (Note dated 6 May 1921,
from the Directorate for Political and Indigenous Affairs, Government General of Indochina, Hanoi), Annex 15
(Letter dated 4 May 1909 from Mr. Beauvais, Consul of France in Canton, to the Minister for Foreign Affairs, Paris),
115
complained about the lack of navigational aids on the Paracels after two British ships collided
with a Chinese fishing vessel near the islands. Again, China disclaimed any responsibility,
indicating that it did not own the islands.756
Contemporaneously with its activities in the Paracels, France also solidified its
sovereignty over the Spratly archipelago. In 1927, the De Lanessan conducted an initial
scientific survey of the islands.757 The following year, in November 1928, the New Phosphates
Company of Tonkin applied to the Governor of Cochinchina for a permit to exploit phosphate
deposits in the Spratlys.758 Then in 1930, a French survey team from the La Malicieuse
conducted a second survey of Spratly Island and hoisted the French flag over the island—the
first recorded instance of a sovereignty marker being placed on any of the Spratly Islands.759
Thereafter, on September 23, 1930, France notified the other Great Powers that it had
occupied the Spratlys on the grounds that the islands were terra nullius.760 China correctly
points out that the French found Chinese fishermen living on the island during the expedition.
However, as previously discussed, the fact that a handful of Chinese fishermen sporadically
lived on the island for short periods of time is irrelevant to the determination of sovereignty
over the archipelago.761
Subsequently, France dispatched the Alerte, the Astrobale, and the De Lanessan to the
Spratlys in April 1933 to officially take physical possession of the archipelago.762 Three months
later, the French MFA published a notice in the French Journal Officiel (July 26, 1933, page
7837) notifying the international community that French naval units had effectively occupied
Spratly Island (with its dependent isles), Islet caye of Amboine (with its dependent isles), Itu
Aba Island (with its dependent isles), North East Cay and Shira Island (with their dependent
isles), Loaita Island (with its dependent islands), and Thi Tu Island (with its dependent
islands).763 Individual notifications were additionally provided to China, Great Britain, Japan, the
Netherlands, and the United States.764 By claiming the features along with their “dependent”
islets/islands, France clearly intended to claim sovereignty over the entire archipelago.765
Annex 26 (Letter No. 1512‐A.Ex dated 18 October 1930 from the Governor General of Indochina, Hanoi, to the
Minister for the Colonies, Paris); see also H. Chiu and C. Park, note 42 supra, at p. 7.
756
757
M. Chemillier‐Gendreau, note 15 supra, at p. 37; see also H. Chiu and C. Park, note 42 supra, at p. 8; T. Kelly,
note 133 supra.
758
759
Id.; see also H. Chiu and C. Park, note 42 supra, at p. 8; T. Kelly, note 133 supra.
760
M. Chemillier‐Gendreau, note 15 supra, at pp. 38, 97, 111.
761
See text accompanying notes 264‐272, notes 585‐589, and notes 898‐902 supra. See also B. Murphy, note 29
supra, at pp. 201‐202. Accord M. Bennett, note 15 supra, at pp. 434‐435, 446; C. Joyner, note 166 supra, at p. 59;
H. Roque, note 208 supra, at p. 200; Dissenting Opinion of Judge McNair in the Fisheries Case (United Kingdom v.
Norway), I.C.J. Reports 1951, p. 116, at p. 184.
762
763
S. Tønnesson, note 55 supra, at p. 8; see also H. Roque, note 208 supra, at p. 192; T. Kelly, note 133 supra; M.
Chemillier‐Gendreau, note 15 supra, at pp. 38, 111.
764
The Netherlands (occupying Indonesia) and the United States (occupying the Philippines) remained silent on the
issue. Great Britain determined that it never perfected its inchoate title to the islands and therefore did not have
title to the Spratlys. China and Japan, however, purportendly questioned France’s occupation.
765
M. Chemillier‐Gendreau, note 15 supra, at 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)).
116
Following the announced annexation of the Spratlys in July 1933, a headquarters for the
French administrative office and guard detachment for the archipelago was established on Itu
Aba Island. In December 1933, Governor General Pasquier signed Decree No. 4762‐CP (dated
December 21, 1933), assigning the Spratlys to the Cochinchinese province of Bà Ria (French
Indochina).766 A radio station and weather station were subsequently built on Itu Aba by the
Indochina Meteorological Service in 1938—data provided by the weather station was listed by
the World Meteorological Organization as originating in Cochinchina.767 The French also
continued to conduct scientific surveys in the archipelago.768
On April 4, 1939, France reasserted its sovereignty over the Spratlys, reaffirming that
the islands were part of Annam (Vietnam), after Japan announced that it was placing the islands
under the administrative jurisdiction of Taiwan.769 The Annamese militia was additionally
deployed to counter a Japanese deployment of Formosan militia that had established a camp in
the Spratlys, and a French warship on patrol in the South China Sea called on the Spratlys.770
China, on the other hand, did not protest either the Japanese declaration or the deployment of
Annamese and Formosan militia to the islands.
In October 1946, the French battleship Chevreud was deployed to the Spratlys to re‐
assert French interests in the archipelago and its crew installed a sovereignty stele on Itu Aba
Island.771 When France learned that Chinese naval units had occupied Itu Aba in November
1946, French authorities protested the action, demanding that the Nationalist troops withdraw
from the island.772 A decade later, when Tomas Cloma of the Philippines proclaimed his so‐
called “Freedomland” in May 1956, France (even though it had withdrawn from Indochina),
reminded the Philippine government that the Spratlys were sovereign French territory.773
During the same time period, the French Navy vessel Dumont d’Urville was deployed to Itu Aba
Island in a demonstration of French‐Vietnamese interest in the archipelago.774
Chinese scholars claim that the Shanghai newspaper Shen Bao reported that China
protested France’s formal occupation of the Spratly Islands on July 26, 1933.775 A week later,
the newspaper reported that a similar protest was filed with French officials by the Guangdong
766
Id., at Annex 30 (Decree by the Governor of Cochin China (J. Krautheimer), Saigon, 21 December 1933). See also
H. Chiu and C. Park, note 42 supra, at pp. 8‐9; B. Murphy, note 29 supra, at p. 203; T. Kelly, note 133 supra.
767
H. Chiu and C. Park, note 42 supra, at p. 9; see also T. Kelly, note 133 supra.
768
769
M. Chemillier‐Gendreau, note 15 supra, at Annex 32 (Note from the Ministry of Foreign Affairs, Directorate for
Political Affairs and Trade, (Asia), 10 August 1940). See also H. Chiu and C. Park, note 42 supra, at p. 8; T. Kelly,
note 133 supra.
770
M. Chemillier‐Gendreau, note 15 supra, at Annex 32 (Note from the Ministry of Foreign Affairs, Directorate for
Political Affairs and Trade, (Asia), 10 August 1940).
771
772
Id.
773
774
Id.
775
Shen II, at p. 143 (“The…[Spratly] islands…have been inhabited by Chinese fishermen only, and have been
recognized by the international community as China’s territories. We are shocked to have received the official
French journal announcing France’s formal occupation. …The Foreign Ministry…will put forward serious protests
over the French actions.”); see also H. Chiu and C. Park, note 42 supra, at p. 18; B. Murphy, note 29 supra, at pp.
191, 203.
117
provincial government.776 Two days later, on August 4th, the Chinese government allegedly
delivered a diplomatic note to French authorities reserving its position on China’s rights to the
Spratlys pending an investigation of the French actions.777 After confirming that the nine islands
in question were in fact part of the Spratly archipelago, Ambassador Wellington Koo (Gu
Weijun) formally protested France’s occupation, stating that the Spratly Islands were sovereign
Chinese territory.778 China’s argument that it protested France’s occupation of the Spratlys in
1933 is questionable, at best.
Vietnamese officials deny that these diplomatic exchanges occurred. Some scholars
have similarly questioned whether China actually protested France’s occupation of the Spratlys,
observing that the protest note cited by Chinese scholars is not dated and is not mentioned in
the February 1974 Memorandum on Four Large Archipelagoes of the Republic of China in South
Sea.779 Nevertheless, even if China did object to the occupation, its protest was based, not on
official governmental regulation or effective control of the Spratlys, but rather, primarily on the
grounds that Chinese fishermen were living on some of the islets.780
As discussed above, under prevailing international law, when determining issues of
territorial sovereignty, “the independent activity of private individuals is of little value unless it
can be shown that they have acted in pursuance of a licence or some other authority received
from their Governments or that in some other way their Governments have asserted
jurisdiction through them.”781 In the case of the Spratlys, there is simply no reliable evidence
that Chinese fishermen acted pursuant to government authority or that the Chinese
government subsequently sanctioned these private acts.782 Thus, the private activities relied
upon by China do not constitute acts á titre de souverain reflecting the intention and will to act
776
Shen II, at pp. 143‐144 (“The Southwest Commissioner is seriously concerned with the incidents of France
occupying the…[Spratly] islands, and will do everything he can to preserve China’s sovereignty over these island
groups. …the Yue [Guangdong] Provincial Government…has already lodged protests to the French authorities.”).
777
Id., at p. 144 (“The Chinese Government is very much concerned with…[the French‐declared occupation of and
sovereignty over nine islands in the South China Sea]. She hereby requests…the Minister of the French Legation to
inquire into and ascertain the name, the exact location and the longitude and latitude of each island and report the
same to the Chinese Government. Pending such investigation…, the Chinese Government reserves her titles vis‐à‐
vis the…declaration of the French Government.”); see also Shen I, at p. 41.
778
Shen II, at p. 144; see also Shen I, at p. 42; H. Chiu and C. Park, note 42 supra, at p. 13; T. Kelly, note 133 supra.
779
H. Chiu and C. Park, note 42 supra, at note 59; see also F. Bonnet, note 223 supra, at p. 17 (“Following the
discovery that the Spratly Islands and the Paracel Islands were two different groups, the Chinese government did
not protest the French claim on the nine islands”).
780
H. Chiu and C. Park, note 42 supra, at p. 12; see also Shen I, at p. 42 (“At the time of the occupation, the French
Government stated that the islands in question were terra nullius, but conceded that during their occupation, ‘the
only people living on the islands were Chinese.’”); M. Katchen, note 120 supra, at p. 1178.
781
Fisheries Case (United Kingdom v. Norway), I.C.J. Reports 1951, p. 116, at p. 184. Accord Sovereignty over Pulau
Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, I.C.J. Reports 2002, p. 625, at p. 683 (“…activities by
private persons cannot be seen as effectivités if they do not take place on the basis of official regulations or under
governmental authority.”); see also M. Chemillier‐Gendreau, note 15 supra, at p. 54.
782
118
in that capacity and therefore do not support China’s claim of indisputable sovereignty over the
Spratly archipelago.783
China’s position also ignores the fact that, at the time of France’s occupation of the
Spratlys in 1933, conquest—followed by effective occupation—was a valid method of acquiring
territory under prevailing international law.784 China’s protest, even if it did occur, is therefore
irrelevant to the determination of French sovereignty over the Spratly Islands.
In short, there is considerable evidence that France did not intend to abandon its claims
in the Spratlys and that it engaged in a series of activities that substantiate French effective
control of the archipelago until French troops were withdrawn from Indochina and replaced by
South Vietnamese naval forces in August 1956.
b. Effective Administration by South Vietnam

Vietnam started to exercise sovereign control of the South China Sea islands in the
1950s as France slowly began to withdraw from Indochina. On October 14, 1950, France
formally turned over defense of the Paracels to Vietnamese forces.785 The following year,
Premier Tran Van Huu reaffirmed Vietnamese sovereignty over the Paracel and Spratly
archipelagoes at the San Francisco Peace Conference.786 None of the 51 nations present at the
conference objected to this statement, and there is no evidence that the ROC ever opposed the
statement.787 At the time, the ROC occupied the Chinese seat at the United Nations.
The Vietnamese Navy assumed responsibility for the defense of the archipelago in
August 1956, and South Vietnamese forces occupied Pattle Island and Robert Island in April and
July 1956, respectively.788 That same year, the Department of Mining, Technology, and Small
Industries conducted surveys on Pattle, Money, Robert, and Drumond Islands in the Paracels.789
Vietnamese Marines subsequently took over the defense of the islands in 1957; however, the
Vietnamese Navy continued to regularly patrol the waters around the archipelago.790 Beginning
in 1959, defense responsibilities were transferred to the Regional Forces of Quang Nam
Province.791 In February of that same year, South Vietnamese forces occupied Duncan Island,
783
at p. 683. See also C. Joyner, note 166 supra, at p. 59 (“Evidence of…permanent settlement is not compelling in the
case of China’s claim to the Spratlys.”); accord M. Bennett, note 14 supra, at pp. 434‐435 (“Despite the official
government position that the Spratly Islands formed an integrated part of its territory, the continuous Chinese
presence seems to have consisted of fishermen from Hainan Island, who would temporarily settle on the islands to
fish and collect tortoise shells. These stays appear to have been brief, and it is unlikely that the huts and other
structures they built survived their departures. …[T]he question arises as to whether isolated contacts by individual
Chinese fishermen are sufficient to establish sovereignty over the Spratlys under international law. Thus the
validity of the PRC’s official position is subject to doubt.”); SOUTH CHINA SEA STUDIES (2012), at p. 5; H. Nguyen, note
204 supra, at p. 169.
784
M. Katchen, note 120 supra, at p. 1179; see also M. Bennett, note 14 supra, at pp. 440‐441.
785
786
Id., at p. 41.; see also H. Chiu and C. Park, note 42 supra, at p. 8; T. Kelly, note 133 supra.
787
Id.; see also B. Murphy, note 29 supra, at pp. 192‐193, 201.
788
789
Historical documents on Vietnam’s sovereignty over Paracel and Spratly Islands, note 203 supra; NATIONAL
790
791
Id.
119
evicting over 80 Chinese fishermen that were illegally living on the island.792 And in March,
Vietnamese troops occupied Drummond Island.793
French scientists were also granted permission to conduct scientific studies of the
Paracels on behalf of South Vietnam (1955, 1957, 1958, and 1961).794 In 1960, the first South
Vietnamese officials were posted to the Paracels to administer the islands.795 The following
year, jurisdiction over the Paracels was transferred back to Quang Nam Province (Decree No.
174‐NV of July 13, 1961) and given the status of a “Xa” (village of the mainland).796
Continued Chinese incursions in the Paracels in the 1970s prompted South Vietnam to
reaffirm its sovereignty over the archipelago in a statement issued on July 15, 1971.797 That
same year, in May, Vietnamese forces conducted a survey on Triton Islands (Paracels).798 A
lengthy proclamation was issued in February 1974 condemning the Communist Chinese
invasion of the Paracels on January 21, 1974.799 A diplomatic note was also sent to the
signatories of the Paris Peace Accords of 1973, calling for a special session of the Security
Council.800 The Provisional Revolutionary Government of South Vietnam likewise expressed its
concern, albeit guarded, over the Chinese invasion.801 Later that year, South Vietnam
reaffirmed its sovereignty over the Paracels at the March meeting of the Economic Commission
for the Far East and at the July meeting of the Third United Nations Conference on the Law of
the Sea.802
Following the French withdrawal from Indochina in 1956, South Vietnam also began to
exercise sovereignty over the Spratly archipelago as the successor state to French claims. On
June 1, 1956, the Republic of Vietnam confirmed Vietnamese sovereignty over the Spratlys
after Tomas Cloma established his so‐called “Freedomland” in the eastern portion of the
archipelago.803 Then in mid June, South Vietnam’s Foreign Minister reaffirmed Vietnamese
sovereignty over the island chain.804 In October, administrative control of the Spratlys was
assigned to Phuoc Tuy Province pursuant to Decree No. 143/NV of October 22, 1956.805
792
SOUTH CHINA SEA STUDIES (2012), at p. 3; Historical documents on Vietnam’s sovereignty over Paracel and Spratly
793
Id.
794
MFA White Paper (1974); see also H. Fontaine, note 358 supra.
795
796
In 1969, the Paracel Islands became part of the village of Hoa Long, Hoa Vang District, Quang Nam Province
(Decree No. 709‐BNV/HCDP/26 dated October 21, 1969). MFA White Paper (1974); see also Shen I, at p. 52; H.
Nguyen, note 204 supra, at p. 189; M. Chemillier‐Gendreau, note 15 supra, at p. 127.
797
798
Shen I, at p. 52.
799
Proclamation by the Government of the Republic of Vietnam, Feb. 14, 1974, available at
http://www.nguyenthaihocfoundation.org/lichsuVN/tuyenbo_vnch.htm; see also M. Chemillier‐Gendreau, note 15
supra, at p. 127.
800
801
Id., at pp. 45, 128.
802
Id., at pp. 45, 127.
803
MFA White Paper (1974); see also B. Dubner, note 29 supra, at p. 311.
804
Id.; see also H. Chiu and C. Park, note 42 supra, at pp. 8‐9; B. Murphy, note 29 supra, at pp. 192‐193, 201.
805
B. Murphy, note 29 supra, at p. 204; accord B. Dubner, note 29 supra, at p. 311. See also H. Chiu and C. Park,
note 42 supra, at p. 9; M. Chemillier‐Gendreau, note 15 supra, at pp. 43, 127.
120
Faced with increasing Chinese and Filipino incursions in the Spratlys (Itu Aba Island and
“Freedomland”), the South Vietnamese Navy launched a series of operations to reassert control
over the archipelago. In August 1956, the crew of the cruiser Tuy Dong (HQ‐04) was directed to
erect sovereignty steles and hoist the Vietnamese flag on many of the Spratly Islands.806 In
1961, crew members from the Vietnamese cruisers Van Kep and Van Don landed on Southwest
Cay, Thitu Island, Loaita Island, and Amboyna Cay to erect sovereignty steles and raise the
Vietnamese flag.807 The cruisers Tuy Dong and Tay Ket engaged in similar activities in 1962 on
Spratly Island and Namyit Island. In 1963, the sovereignty steles on all of the main islands in the
Spratlys were rebuilt by crew members of the Navy vessels Huong Giang, Chi Lang, and Ky Hoa
(Spratly Island, May 19, 1963; Amboyna Cay, May 20, 1963; Thitu and Loaita Islands, May 22,
1963; and North East and South West Cays, May 24, 1963).808 Regular naval patrols of the
archipelago continued through 1964,809 although the frequency of the patrols was significantly
reduced after 1963 as a result of the ongoing conflict with North Vietnam. Vietnamese naval
units also carried out a number of survey and mapping expeditions in the region between 1960
and 1967.810
Continued counterclaims by other claimants to the Spratlys during the 1970s resulted in
sharp protests by the Saigon government. In April 20, 1971, the MFA delivered a diplomatic
note to the Malaysian government outlining Vietnam’s position in support of its sovereignty
claims in the archipelago.811 Three months later the MFA reaffirmed Vietnamese sovereignty
over the Spratlys in a statement issued on July 15, 1971.812 In May 1973, Vietnam conducted
surveys on Pagasa Island, Loaita Island, and Northeast Cay, and, in July, occupied Namyit Island
in the Spratlys.813 Also in July, the Ministry of Agricultural Development and Land’s Institute of
Agricultural Research conducted a survey of Namyit Island.814 Then, on September 6, 1973, the
Spratlys were incorporated into Phuoc Tuy Province (Decree No. 420—BNV/HCDP/26).815
Diplomatic notes were also delivered to Taiwan (January 29, 1974) and the Philippines
(February 12, 1974) rejecting Taipei’s and Manila’s respective claims to the Spratlys as
unfounded.816 Later that year, South Vietnam reaffirmed its sovereignty over the island chain at
the March 1974 meeting of the Economic Commission for the Far East and at the July 1974
meeting of the Third United Nations Conference on the Law of the Sea.817
806
807
MFA White Paper (1974); see also H. Nguyen, note 204 supra, at p. 189.
808
809
810
Shen I, at p. 52.
811
812
Id., at p. 44.
813
Shen I, at p. 52.
814
815
816
817
121
Based on the foregoing, the other South China Sea claimants cannot argue convincingly
that South Vietnam did not exercise effective control of the South China Sea islands or that
Saigon intended to abandon its claims to the two island groups. Nevertheless, some scholars
have noted that, despite the extensive diplomatic initiatives by Saigon, South Vietnam did not
physically occupy any of the Spratly Islands until 1973.818 However, given the harsh conditions
and remote location of the islands, as well as the ongoing civil war on the mainland, it is
understandable that South Vietnamese military units were not deployed to the Spratlys
between 1956 and 1973.819
c. Post‐unification Administration
Following unification of the country on April 30, 1975, the Socialist Republic of Vietnam
inherited South Vietnam’s title to the Paracels and Spratlys and continued to assert sovereignty
over the two archipelagoes. In April 1975, North Vietnamese troops replaced the South
Vietnamese garrisons on Southwest Cay, Sand Cay, Sin Cowe Island, Spratly Island, and
Amboyna Cay.820
In May 1975, the Vietnamese government incorporated the Paracel and Spratly Islands
into the territory of Vietnam and renamed the archipelagoes Hoang Sa and Truong Sa.821 The
following year, Vietnam incorporated the Spratly Islands into Đong Nai Province in March
1976.822 On May 12, 1977, the Vietnamese government issued a Statement on the Territorial
Sea, the Contiguous Zone, the Exclusive Economic Zone and the Continental Shelf, which
reaffirmed, in part, that the Spratlys and Paracels formed an integral part of Vietnamese
territory.823
In September 1982, the Paracels were placed under the administrative control of Quang
Nam‐Da Nang Province.824 Two months later, on November 12, the Government of Vietnam
issued a statement on the territorial sea baselines of Vietnam, which included both the Paracel
and Spratly Islands.825 Then, on March 25, 1983, Vietnam protested Malaysia’s claim to three
islets in the archipelago.826 In a further demonstration of sovereignty, Vietnamese forces
subsequently occupied Bo Reef, West Reef, Ladd Reef, Pigeon Reef, East Reef, Cornwallis South
818
819
Island of Palmas Case (Netherlands/U.S.A.), U.N. Rep., Vol. II, p. 829 (1928), p. 831, at p. 840; Legal Status of
Eastern Greenland Case (Denmark v. Norway), P.C.I.J., Series A/B, No. 53 (1933), at p. 46; Western Sahara Advisory
Opinion, I.C.J. Reports 1975, p. 12, at p. 43; Clipperton Island Arbitration (Mexico v. France), 2 R.I.A.A. 1105 (1931),
at pp. 393‐394. [The cited pages are from the English translation at 26 Am. J. Int’l L. 390, at 393‐394 (1932).]
820
Shen I, at p. 55; see also M. Chemillier‐Gendreau, note 15 supra, at p. 45.
821
Id.
822
Shen I, at p. 55.
823
Statement on the Territorial Sea, the Contiguous Zone, the Exclusive Economic Zone and the Continental Shelf of
12 May 1977, available at https://www.un.org/depts/los/LEGISLATIONANDTREATIES/STATEFILES/VNM.htm.
824
Additional administrative measures regarding the Paracels were taken in June 1996 (annexed the Paracels into
the city of Da Nang) and April 2007 (establishment of Truong Sa town, Song Tu Tay and Sinh Ton Communes under
Truong Sa District. Historical documents on Vietnam’s sovereignty over Paracel and Spratly Islands, note 203 supra;
825
Statement of 12 November 1982 by the Government of the Socialist Republic of Viet Nam on the Territorial Sea
Baseline of Viet Nam, available at
https://www.un.org/depts/los/LEGISLATIONANDTREATIES/STATEFILES/VNM.htm.
826
M. Chemillier‐Gendreau, note 15 supra, at p. 45
122
Reef, Collins Reef, Lansdowne Reef, Alison Reef, Petley Reef, South Reef, Prince of Wales Bank,
Bombay Shoal, and Vanguard Bank between February 1987 and July 1989 to counter continued
Chinese inroads in the archipelago.827 An economic and scientific complex was also constructed
in the Spratlys in August 1989.828 In addition, a government‐organized fishing fleet was
dispatched to exploit the East Sea fisheries and the government built a series of civilian
installations, including scientific stations and lighthouses, on a number of the occupied islets.829
Official acts, decrees, resolutions, laws, diplomatic correspondence, etc., taken by the
Socialist Republic of Vietnam since unification of the country have continued to demonstrate
sovereignty over both the Spratly and Paracels Islands. Vietnam’s declaration upon ratifying the
United Nations Convention on the Law of the Sea in 1994 reaffirmed Vietnamese sovereignty
over the disputed archipelagoes.830 Similarly, Vietnam delivered a note verbale to the United
Nations in August 1998 protesting China’s 1998 Law on the Exclusive Economic Zone and the
Continental Shelf of the People’s Republic of China, which provides, in part, that Vietnam had
indisputable sovereignty over the two island groups.831
On December 3, 2007, Vietnam strongly protested China’s decision to establish Sansha
City to administer the Spratly and Paracel Islands.832 Similarly, on March 12, 2009, Vietnam
protested the Philippines’ new archipelagic baselines, which refers to some of the Spratly
Islands as Philippine territory.833 On May 8, 2009, Vietnam sent a diplomatic note to the UN
Secretary‐General rejecting China’s U‐shaped line in the South China Sea and reaffirming
Vietnamese sovereignty over the Spratlys and Paracels.834 A similar position was taken by Hanoi
827
Shen I, at p. 56.
828
829
830
Socialist Republic of Vietnam Declaration upon Ratification of UNCLOS, July 25, 1994, available at
http://www.un.org/Depts/los/convention_agreements/convention_declarations.htm.
831
Viet Nam: Dispute regarding the Law on the Exclusive Economic Zone and the Continental Shelf of the People’s
Republic of China which was passed on 26 June 1998, reprinted in UN LAW OF THE SEA BULL., No. 38, 1998, at p. 55.
832
COMMITTEE OF BORDER AFFAIRS White Paper).
833
Id.
834
http://www.un.org/depts/los/clcs_new/clcs_home.htm. Most international maritime law experts and foreign
governments (including the other South China Sea claimants), however, would agree that China’s U‐shaped claim
in the South China Sea has no basis in international law or state practice. Vietnam, for example, has asserted that
“China’s claim over the islands and adjacent waters in the Eastern Sea (South China Sea) as manifested in the [U‐
shaped] map attached with Notes Verbale CLM/17/2009 and CLM/18/2009 has no legal, historical or factual basis,
[and] therefore is null and void.” Note Verbale, Permanent Mission of the Socialist Republic of Vietnam to the
United Nations, No. 86/HC‐2009 (8 May 2009),
http://www.un.org/depts/los/clcs_new/commission_submissions.htm. Similarly, the Philippines has stated that
“the claim…by the People’s Republic of China on the relevant waters as well as the seabed and subsoil thereof (as
reflected in the so‐called nine‐dash line map attached to Notes Verbales CML/17/2009…and
CML/18/2009…)…would have no basis under international law, specifically UNCLOS. Note Verbale, Philippine
Mission to the United Nations, No. 000819 (4 August 2009) and 000228 (5 April 2011), at
http://www.un.org/depts/los/clcs_new/commission_submissions.htm. Even Indonesia, which is not a party to the
dispute, has protested China’s claim, indicating that the “so called nine‐dotted‐lines map as contained in…circular
note Number CML/17/2009…clearly lacks international legal basis and is tantamount to upset[ting] the UNCLOS
1982.”834 Note Verbale, Permanent Mission of the Republic of Indonesia, No. 480/POL‐703/VII/10 (8 July 2010),
123
in response to the Philippines’ protest of Vietnam’s submission to the UN Commission on the
Limits of the Continental Shelf claiming an extended continental shelf for Vietnam in the South
China Sea.835 Additionally, Vietnam’s new Law of the Sea (2012) specifically applies to both the
Paracel and Spratly archipelagos.836
Based on the foregoing, it is clearly apparent that the unified Vietnam has not
abandoned its legitimate claims to the South China Sea islands.
4. Right of Cession
International law recognizes that a state may cede sovereignty over a particular territory
to another state.837 Therefore, provided that Vietnam can prove that France validly exercised
sovereignty over the South China Sea islands in the 1930s, and that France ceded the islands to
Vietnam (South Vietnam) after it became an independent state, the SRV would have an
indisputable claim to the islands by right of cession.838
Some scholars, however, are skeptical that the right of cession applies to the Spratlys
because France purportedly did not relinquish control of the islands to Vietnam after it was
granted independence.839 A letter written in 1951 by Jean Letourneau, French Minister of State
with responsibility for relations with Associated States, to the Minister for Overseas Territories
suggested that the Spratlys remained French territory following the establishment of the new
State of Vietnam and should therefore be placed under the control of the French Department
of Overseas Territories:
…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…. 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. …[T]he 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. …[U]nless it
is considered…that the French High Commissioner in Saigon should retain the
administration of these territories within his powers, it would appear…that the Spratlys
http://www.un.org/depts/los/clcs_new/commission_submissions.htm. The United States has also questioned the

validity of the “nine‐dashed line.” On February 5, 2014, Assistant Secretary of State Daniel Russel testified before
the House Committee on Foreign Affairs Subcommittee on Asia and the Pacific. During his testimony, Secretary
Russel indicated, in part, that “any use of the ‘nine‐dash line’ by China to claim maritime rights not based on
claimed land features would be inconsistent with international law.” Daniel R. Russel, Assistant Secretary, Bureau
of East Asian and Pacific Affairs, Testimony Before the House Committee on Foreign Affairs Subcommittee on Asia
and the Pacific (Washington, DC), Maritime Disputes in East Asia, Feb. 5, 2014, available at
http:/www.state.gov/p/eap/rls/rm/2014/02/221293.htm.
835
836
Law of the Sea of Viet Nam, Law No. 18/2012/QH13, June 21, 2012.
837
BROWNLIE 217 (8th ed.).
838
839
H. Roque, note 208 supra, at p. 204 ; see also M. Chemillier‐Gendreau, note 15 supra, at pp. 118, 124.
124
should now come under the French Department of Overseas Territories, on the same
basis as other French territories in the Pacific. …840
An internal note written by the French Ministry of Foreign Affairs in 1957 similarly indicated
that France had not claimed the Spratlys on behalf of Vietnam, but rather, for itself:
The French Government considers that the Spratly islands, taking official possession of
which was the subject of a notice published in the Official Journal of 26 July 1933, are
French. The sovereignty of these islands is also claimed by the governments of Beijing,
Taipei and Saigon. Manila communicated support for a claim made privately in the last
year by one of its nationals.841
Accordingly, although France may have ceded the Paracels to Vietnam, it did not do so with
regard to the Spratlys. The efficacy of this argument is highly problematic, however, given the
multitude of official actions taken by the French government dating back to the 1930s that
bring into question the true intent of the 1951 letter and 1957 note and lead to a different
conclusion.
On June 14, 1932, the Governor General of Indochina designated the Paracels as an
administrative unit of Thua Thien (Huế) Province in Annam (Decree No. 156‐SC).842 The
following year, on December 22nd, Governor General Pasquier assigned the Spratlys to the
Cochinchinese (French Indochina) Province of Bà Ria (Decree No. 4762‐CP).843 Then, on April 4,
1939, in response to Japan’s announcement that it was placing the Spratlys under the
administrative jurisdiction of Taiwan, the French government filed a strongly worded protest,
indicating that the islands were part of Vietnam.844
840
M. Chemillier‐Gendreau, note 15 supra, at p. 118, 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).
841
“Le gouvernement français considère que les îles Spratly, dont la prise de possession officielle a fait l'objet d'un
avis publié au Journal Officiel du 26 juillet 1933, sont françaises. La souveraineté de ces îles est également
revendiquee par les gouvernements de Pékin, de Taïpei et de Saïgon. Celui de Manille vient d'appuyer une
revendication formulée, l'an dernier, à titre privé, par un de ses ressortissants.” Note pour le Secrétaire Général
a.s. des Iles Spratly, Ministère des Affaires Etrangères, Asie‐Océanie, No. 20 JMB/GM, 20.2.57, pp. 389‐392, dos.
522, Chine 1956‐67, série Asie‐Océanie, MAE, reprinted in S. Tønnesson, note 55 supra, at p. 12 (note 28).
842
Emperor Bao Dai confirmed the French decree in a Vietnamese imperial ordinance on March 30, 1938. MFA
White Paper (1974); see also H. Chiu and C. Park, note 42 supra, at p. 8; H. Nguyen, note 204 supra, at p. 185;
SOUTH CHINA SEA STUDIES (2012), at p. 2; Nguyen Ba Dien, note 203 supra; Historical documents on Vietnam’s
sovereignty over Paracel and Spratly Islands, note 203 supra; M. Chemillier‐Gendreau, note 15 supra, at pp. 39 and
113; NATIONAL COMMITTEE OF BORDER AFFAIRS White Paper.
843
MFA White Paper (1974); see also B. Murphy, note 29 supra, at p. 203; H. Chiu and C. Park, note 42 supra, at
p. 9; T. Kelly, note 133 supra; SOUTH CHINA SEA STUDIES (2012), at p. 2 (The decree was implemented by the Governor
of Cochinchina, Jean‐Féliz Krautheimer.); M. Chemillier‐Gendreau, note 15 supra, at pp. 39, 111, Annex 30 (Decree
by the Governor of Cochin China (J. Krautheimer), Saigon, 21 December 1933); Nguyen Ba Dien, note 203 supra;
COMMITTEE OF BORDER AFFAIRS White Paper; H. Nguyen, note 204 supra, at p. 186.
844
MFA White Paper (1974); see also H. Roque, note 208 supra, at p. 192; SOUTH CHINA SEA STUDIES (2012), at p. 2; T.
Kelly, note 133 supra; H. Chiu and C. Park, note 42 supra, at p. 8; M. Chemillier‐Gendreau, note 15 supra, at p. 39.
125
A decade later, on June 5, 1948, France and Vietnam signed the Ha Long Bay
Agreement, which allowed for the creation of a unified State of Vietnam (Tonkin, Annam, and
Cochinchina) associated with France within the French Union.845 The following year, on March
8, 1949, France signed the Élysée Agreement with the State of Vietnam, agreeing to recognize
the independence of Vietnam and transferring administrative power of the state to the
Vietnamese government.846 Then, on July 5, 1949, the French government proclaimed the
unification of Tonkin, Annam and Cochinchina into the State of Vietnam within the French
Union. Based on the assignment of the Paracels to Annam in 1932 and the Spratlys to
Cochinchina in 1933, the new State of Vietnam included both of the archipelagoes.
French inaction with regard to the Spratlys during the 1950s likewise draws into
question the validity of the 1951 letter and 1957 note. There is no evidence that France
attempted to include a provision in Article 2 of the San Francisco Peace Treaty that would have
returned the Spratly Islands to French control after the war. Nor did France object to the
statement by Prime Minister Tran at the Peace Conference that reaffirmed Vietnamese
sovereignty over the Spratly and Paracel Islands.847 France also did not challenge Foreign
Minister Vu Van Mau’s statement several weeks later that reaffirmed Vietnam’s sovereignty
over the archipelago,848 or the Vietnamese decree (Decree No. 143/NV of October 22, 1956)
that assigned administrative control of the Spratlys to Phuoc Tuy Province.849 Vietnam’s
placement of sovereignty steles on a number of the Spratly Islands in 1956,850 1961,851 1962,852
and 1963853 also went unchallenged by France. If France had really intended to retain title over
845
The Pentagon Papers, Gravel Edition, Vol. 1, Chap. 2 (Boston: Beacon Press, 1971), pp. 1‐52.
846
Id.
847
MFA White Paper (1974); see also H. Chiu and C. Park, note 42 supra, at p. 8.; SOUTH CHINA SEA STUDIES (2012), at
BORDER AFFAIRS White Paper; B. Murphy, note 29 supra, at pp. 192‐193, 201.
848
Id.
849
B. Murphy, note 29 supra, at p. 204; accord B. Dubner, note 29 supra, at p. 311. See also H. Chiu and C. Park,
note 42 supra, at p. 9 (Decree No. 143/NV 2 as reconfirmed and readjusted in 1958 (Decree No. 76/BNV/HC 9 ND
of March 20, 1958) and 1959 (Decree No. 34/NV of January 27, 1959)); T. Kelly, note 133 supra; Nguyen Ba Dien,
note 203 supra; H. Nguyen, note 204 supra, at p. 189; Historical documents on Vietnam’s sovereignty over Paracel
850
In August 1956, the cruiser Tuy Dong (HQ‐04) was assigned the mission of erecting sovereignty steles and
building flag poles to hoist the Vietnamese flag on a number of the Spratly Islands. MFA White Paper (1974); see
also H. Nguyen, note 204 supra, at p. 189 (“…the ROV Navy landed on Spratly Islands and erected a monument
asserting sovereignty on August 22, 1956.”).
851
In 1961, crew members from the Vietnamese cruisers Van Kep and Van Don landed on Southwest Cay, Thitu
Island, Loaita Island and Amboyna Cay to erect sovereignty steles and raise the Vietnamese flag. MFA White Paper
(1974); see also H. Nguyen, note 204 supra, at p. 189; Nguyen Ba Dien, note 203 supra; Historical documents on
White Paper.
852
In 1962, the cruisers Tuy Dong and Tay Ket erected sovereignty steles and raised the Vietnamese flag on Spratly
Island and Namyit Island. Id.
853
In 1963, the sovereignty steles on all of the main islands in the Spratlys were rebuilt by crew members of the
Navy vessels Huong Giang, Chi Lang and Ky Hoa: May 19, 1963 steles on Spratly Island; May 20, 1963 steles on
Amboyna Cay; May 22, 1963 steles on Thitu and Loaita Islands; and May 24, 1963 steles on North East Cay and
South West Cay. Id.
126
the Spratlys as stated in the two documents, it certainly would have challenged Vietnam’s
comprehensive, open, and effective display of authority over the archipelago. Thus, regardless
of whether Vietnam’s historical claims are valid, Hanoi may claim sovereignty over the South
China Sea islands as the successor state to France, which effectively occupied the two island
groups in the 1930s.854
Nevertheless, some scholars argue that France relinquished its sovereignty over the
South China Sea islands after the Second World War by failing to re‐occupy the islands after
1945, and failing to assert a claim to the archipelagoes at the 1951 San Francisco Peace
Conference.855 Accordingly, as the successor state to France, Vietnam had nothing to succeed
to because its predecessor had previously relinquished its sovereignty over the islands. This
argument, however, ignores a series of steps taken by France and Vietnam after the war to re‐
assert sovereignty over the Spratlys and Paracels.
French forces did not return initially to the Spratlys or Paracels after 1945 because
Chinese Nationalist forces were tasked with accepting the surrender of Japanese forces in
French Indochina north of 16 degrees north latitude.856 However, in June 1946, the
Bougainville‐class aviso Savorgnan de Brazza was dispatched to the Paracels to re‐occupy the
islands.857 Although French forces were withdrawn from the archipelago three months later,
when France learned that the ROC occupation force illegally remained on Woody Island
(Paracels) and Itu Aba Island (Spratlys) after the Allied occupation of Indochina officially ended
in March 1946, the French government diplomatically protested the incursion on January 13,
1947.858
The warship Le Tonkinois was also deployed to the Paracels on January 17, 1947, to try
(albeit unsuccessfully) to eject the Chinese Nationalists from Woody Island.859 Subsequently,
the French established a headquarters on Pattle Island and, in late 1947, the French garrison
rebuilt the weather station that had operated on the island from 1938 to 1944.860 The French
hydrographic survey ship Ingenieur en chef Girod was later deployed to the Paracels, in 1953, to
conduct oceanographic, geologic, geographic, and ecological studies.861
854
855
B. Murphy, note 29 supra, at p. 205; see also H. Chiu and C. Park, note 42 supra, at p. 18; Tao Cheng, note 31
supra, at p. 272.
856
General Order Number 1 (September 2, 1945) provided, in part, that “the senior Japanese commanders and all
ground, sea, air and auxiliary forces within China (excluding Manchuria), Formosa and French Indo‐China north of
16 north latitude shall surrender to Generalissimo Chiang Kai‐shek….” Supreme Commander for the Allied Powers,
General Order No. One, Sept. 2, 1945.
857
H. Chiu and C. Park, note 42 supra, at p. 13; see also S. Tønnesson, note 55 supra, at p. 11; M. Chemillier‐
Gendreau, note 15 supra, at pp. 39, 116; SOUTH CHINA SEA STUDIES (2012).
858
M. Bennett, note 14 supra, at pp. 440‐441; M. Katchen, note 120 supra, at p. 1179; M. Chemillier‐Gendreau,
859
M. Bennett, note 14 supra, at pp. 440‐441; see also M. Katchen, note 120 supra, p. 1179; S. Tønnesson, note 55
supra, at p. 11 (“France…made an unsuccessful attempt to force a Chinese garrison to leave Wood Island. When
the Chinese refused, France instead established a permanent presence, on behalf of Vietnam, on Pattle Island in
the western part of the Paracels.”).
860
M. Bennett, note 14 supra, at pp. 440‐441; M. Katchen, note 120 supra, at p. 1179; SOUTH CHINA SEA STUDIES
(2012).
861
127
France similarly engaged in a series of activities in the Spratlys to substantiate French
sovereignty over the archipelago until French troops were ultimately withdrawn from Indochina
in August 1956. In October 1946, the French battleship Chevreud was deployed to the Spratlys
and installed a sovereignty stele on Itu Aba Island to re‐assert French interests in the
archipelago.862 The following month, when France learned that Chinese naval units had illegally
occupied Itu Aba, French authorities protested the action, demanding that the Nationalist
troops withdraw from the island.863 France likewise protested Philippine incursions in the
Spratlys after Tomas Cloma proclaimed his so‐called “Freedomland” in the eastern part of the
archipelago in May 1956, reminding the Philippine government that the Spratlys had been
French territory since 1933.864 The Bougainville‐class aviso Dumont d’Urville was also
dispatched to Itu Aba Island to demonstrate French‐Vietnamese interest in the archipelago.865
Diminished French activity in the South China Sea in the early 1950s is understandable,
given the remoteness of the islands, French military setbacks in the ongoing war, and the
emergence of an independent Vietnam. Moreover, given its new status as an independent
nation, it was logical for Vietnam, not France, to assert sovereignty over the archipelagoes at
the San Francisco Peace Conference in 1951. Overall, these events do not demonstrate intent
on the part of France to abandon its claims to the South China Sea islands until it ceded its
sovereignty over the archipelagoes to South Vietnam at the conclusion of the French‐Indochina
War.
Ample independent evidence exists to support a conclusion that the international
community has recognized Vietnamese sovereignty over the Paracel and Spratly Islands since
the 17th century. The Journal of Batavia, published by the Dutch East Indies Company in 1634,
recorded incidents showing Vietnamese jurisdiction over the Paracels.866 Portuguese and Dutch
maps from the early 17th century likewise identify the islands as Vietnamese territory.867
Evidence of foreign recognition of Vietnamese sovereignty over the Paracels can also be
traced to documents from the 18th century. Mystere des atolls—Journal de voyage aux Paracels
(Mystery of the atolls—Journal of the voyage to the Paracel Islands), written in 1701, reflects
that the Paracels belonged to the Kingdom of Annam.868 Similarly, a note written by French
Admiral Charles Henri d’Estaing in 1768, following his aborted raid against the city of Huế,
recorded the presence of Vietnamese naval vessels in the Paracels.869 A subsequent memoire
from the Admiral in 1759 indicated that the cannons emplaced on the walls of Lord Vo Vuong’s
palace had been taken from ships wrecked on the Paracels.870
Western writings from the 19th century likewise recognize Vietnam’s control of the
Paracels. John Barrow’s A Voyage to Cochinchina (1806) contains a detailed description of the
862
SOUTH CHINA SEA STUDIES (2012), at p. 3; see also T. Kelly, note 133 supra.
863
Id.
864
865
Id.
866
867
868
869
Id.
870
Id.
128
types of boats used by the Hoang Sa Company to exploit the resources of the islands.871
Additionally, books and maps published by French missionary Monseigneur Jean‐Louis
Taberd—Note on the Geography of Cochinchina (1837),872 History and Description of the
Religion, Customs, and Morals of All Peoples (1838), and An Nam Dai Quoc Hoa Do (Tabula
Geographica Imperii Annamitici—The Map of the An nam Empire) (1838)—describe the
Paracels as part of Cochinchina. Similarly, Jean‐Baptiste Chaigneau’s memoires (Memoires sur la
Cochinchina) refer to Emperor Gia Long’s annexation of the Paracels in 1816.873 A reference to
the Paracels as Vietnamese territory can also be found in Adolphe Dubois de Jancigny’s Japon,
Indo‐Chine, Empire Birman (ou Ava), Siam, Annam (ou Cochinchine), Péninsule Malaise, etc.,
Ceylan;874 German missionary Karl Gützlaff’s Geography of the Cochinchinese Empire (1849);875
Aldriano Balbi’s The Italian Compendium of Geography (1850);876 and the French geography
book Tableau de la Cochinchine (1862).877
Vietnam has also correctly pointed out that Japan tacitly acknowledged French
sovereignty over the Paracels in 1927 after a dispute arose between France and Japan over the
Spratly Islands. According to a letter written by the Governor General of Indochina to the
Minister for the Colonies on March 20, 1930, the Japanese Counsel General in Hanoi was
instructed to unofficially inquire of the French authorities about the status of several groups of
islands in the South China Sea. The Paracels, however, were explicitly excluded from the
discussions by the Japanese because the question of ownership of the Paracel Islands was not
in dispute with France.878
Chinese authors and Chinese geographical documents describing the limits of the
Chinese Empire confirm the accuracy of these Western writings. Hai Lu’s Hai Quoc Do Chi
(1730),879 a 1731 map of Kwangtung (Guangdong) Province, a description of the Quiongzhou
Prefecture,880 Hoang Chao’s Map of the Unified Empire (1894),881 Zhongguo Dilixue Jiaokeshu
(Manual of Geography of China) (1906),882 and Li Hanzhung’s Geography of Guandong (1909) all
indicate that the terminus of Chinese territory in the South was Hainan Island.883
Finally, the British Foreign Office determined in 1932 that the United Kingdom had not
perfected its inchoate title to the Spratlys and therefore could not effectively claim sovereignty
over the archipelago.884 Subsequently, during the negotiations of the San Francisco Peace
871
Id.
872
873
H. Chiu and C. Park, note 42 supra, at p. 7; see also M. Chemillier‐Gendreau, note 15 supra, at p. 69.
874
875
876
Id., at p. 183.
877
878
M. Chemillier‐Gendreau, note 15 supra, at 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).
879
Id., at p. 74.
880
Id., at p. 62.
881
Id., at p. 75.
882
Id.
883
Id., at p. 172.
884
Id., at p. 112; see also S. Tønnesson, note 55 supra, at p. 7.
129
Treaty, the Foreign Office indicated in 1947 that the United Kingdom would not contest
France’s claims to sovereignty over the Spratly Islands, which Britain considered to be good in
law.885 Australia likewise supported French claims to the archipelago.886
On balance, there is sufficient independent evidence to support the conclusion that the
international community recognized French/Vietnamese sovereignty of the South China Sea
islands over that of China/Taiwan.
C. Final Thoughts
Based on the arguments and evidence submitted by the claimants and general
principles of international law related to the acquisition of territory, it would appear that
Vietnam clearly has a superior claim to the South China Sea islands.
Vietnam’s title to the Paracels is well founded in both history and law. Beginning in the
early 18th century, Vietnam demonstrated a clear intent to assert sovereignty over the islands
through the establishment of a government‐sponsored company to exploit and manage the
resources of the archipelago. That intent was confirmed by the annexation of the islands and
symbolic acts of sovereignty in the early 19th century, followed by peaceful, effective, and
continuous administration of the islands by successive Nguyen dynasties until the advent of the
French colonial period. France continued to effectively administer the islands on behalf of
Vietnam and physically took possession and occupied the Paracels in the 1930s. Thereafter,
France continued to assert its sovereignty over the Paracels until its departure from Indochina
in 1956. Following the French withdrawal, South Vietnam (and subsequently a united Vietnam)
effectively administered the islands and never ceased to assert Vietnamese sovereignty over
the archipelago, even after China illegally occupied a portion of the islands in 1956 and the
entire archipelago in 1974.
On the other hand, the first demonstration of Chinese sovereignty over the Paracels did
not occur until 1909, two centuries after Vietnam had legally and effectively established its title
to the islands. Moreover, China’s illegal occupation of Woody Island in 1956 and its occupation
of the entire archipelago by force in 1974 clearly violate Article 2(4) of the UN Charter and
accordingly do not confer a clear legal title to the Paracels.
With regard to the Spratlys, France annexed the islands as terra nullius in the 1930s—at
the time, occupation by force was a valid method of acquiring sovereignty over territory. Great
Britain, which had controlled some of the Spratly Islands in the 1800s, abandoned its claims
following the French annexation and effective occupation, so French title to the Spratlys was
legally and soundly established. France’s title to the archipelago was ceded to South Vietnam in
the 1950s and the South Vietnamese government (and subsequently a united Vietnam)
effectively and peacefully controlled the islands until ROC forces illegally occupied Itu Aba
Island in 1956 and PRC forces illegally occupied a number of islets in the archipelago in 1988.
The ROC’s occupation of Itu Aba Island in 1946 and 1956, and the PRC’s invasion of the
Spratlys in 1988, violate Article 2(4) of the UN Charter and cannot confer clear title to the
Spratlys to either Taiwan or China. The fact that China may have challenged Vietnamese
sovereignty over the Spratlys between 1951 and 1988, rights that were legally ceded by France
885
886
130
to Vietnam, does not in and of itself create a clear title for China. On the contrary, China’s claim
to the Spratlys has no legal basis in international law.
Although China’s claims to the Macclesfield Bank and Scarborough Shoal are not
contested by Vietnam and have not been discussed in detail in this paper, it should be noted
that it is highly questionable whether China (or Taiwan) can validly claim sovereignty over these
two features.
Macclesfield Bank and its surrounding shoals are located beyond the territorial sea of
any nation and are permanently submerged at low tide. Therefore, these features may not be
claimed by China or any other nation. Although the ICJ has stated that “international treaty law
is silent on the question whether low‐tide elevations can be considered to be ‘territory,’” and
that there is no “customary rule which unequivocally permits or excludes appropriation of low‐
tide elevations,” the few rules in the law of the sea that govern low‐tide elevations “do not
justify a general assumption that low‐tide elevations are territory in the same sense as
islands.”887 Moreover, the Court noted that “it has never been disputed that islands constitute
terra firma, and are subject to the rules and principles of territorial acquisition; [however,] the
difference in effects which the law of the sea attributes to islands and low‐tide elevations is
considerable.”888 Accordingly, the Court concluded that “it is thus not established that in the
absence of other rules and legal principles, low‐tide elevations can, from the viewpoint of the
acquisition of sovereignty, be fully assimilated with islands or other land territory.”889
China’s claim that it discovered Scarborough Shoal and has exercised effective control
over the reef for hundreds of years suffers from the same infirmity as its claims to the Spratly
and Paracel Islands discussed herein. There is absolutely no independent evidence to
corroborate China’s assertion that it discovered and effectively occupied the shoal, which is
situated 170 nautical miles east of Macclesfield Bank and over 470 nautical miles from the
Chinese coast.890 Moreover, China’s position that Scarborough Shoal is associated with the
Macclesfield Bank is untenable—most experts agree that the shoal cannot actually be part of
the bank from a geographical standpoint.891
Philippine claims to Scarborough Shoal, on the other hand, can be traced to Spanish and
American activities in the area during the late 19th and early 20th centuries.892 The shoal was
first surveyed by the Philippine‐based Spanish frigate Santa Lucia in April 1800 and the results
published in a chart in 1808.893 Documents held by the Spanish Hydrographic Office (Anuario de
la Dirrectión de Hidrografía, año 4, número 56, 1866) also describe search and rescue
operations conducted by Spanish Navy units based in the Philippines to assist mariners in
distress on the shoal, a responsibility that was later transferred to the U.S. Coast Guard after
887
Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports
2001, p. 40, at pp. 101‐103; accord Sovereignty over Pedra Branca/Pulau Batu Puteh Middle Rocks and South Ledge
(Malaysia/Singapore), Judgment, I.C.J. Reports 2008, p. 12, at pp. 99‐101.
888
Id.
889
Id.
890
If the term “Zhongsha Islands” is regarded merely as the English equivalent of “Macclesfield Bank,” then
Scarborough Shoal does not form part of this group. Nevertheless, in the Chinese conception, the term “Zhonghsa
Qundao” is not limited only to Macclesfield Bank, but includes Scarborough Reef and other shoals. Id.
891
R. Beckman, note 7 supra; accord Z. Keyuan, note 9 supra.
892
F. Bonnet, note 223 supra.
893
Id., at pp. 8‐9; accord D. Hancox and V. Prescott, note 535 supra, at p. 24.
131
the United States took possession of the Philippines after the Spanish‐American War.894 These
activities occurred without Chinese consent or protest. Manila claims to have effectively
occupied the reef after it gained its independence from the United States in 1946 and
subsequently built and operated a lighthouse on the shoal in 1965.895 Over the years, Philippine
authorities have also conducted numerous hydrographic and scientific research surveys in the
surrounding waters, have used the shoal as an impact range for military exercises, and have
exercised law enforcement jurisdiction over smuggling and illegal fishing activities, all of which
demonstrate Philippine sovereignty over the reef.896
894
Id.
895
R. Beckman, note 7 supra; accord Z. Keyuan, note 9 supra, at p. 74.
896
Id.
132
The CNA Corporation
This report was authored by CNA Corporation’s Strategic Studies (CSS)
division.
CNA Corp. Strategic Studies division is CNA's focal point for regional
expertise and analyses, political-military studies, and U.S. strategy and
force assessments. Its research approach anticipates a broad scope of
plausible outcomes assessing today’s issues, analyzing trends, and
identifying "the issue after next,” using the unique operational and policy
expertise of its analysts.
IOP-2014-U-008433-Final
www.cna.org ● 703-824-2000
3003 Washington Boulevard, Arlington, VA 22201

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A CNA Occasional Paper

China versus Vietnam:

With a Foreword by CNA Senior Fellow Michael McDevitt

Distribution unlimited. for public release

Distribution unlimited. Specific authority contracting number: E13PC00009.

Approved by: August 2014

Ken E. Gause, Director

Copyright © 2014 CNA

Captain Pedrozo’s findings are summarized below:

Pedrozo’s findings are supported by Professor Monique Chemillier‐Gendreau in her

Senior Fellow and Project Director

II. ACQUISITION OF TERRITORY ................................................................................................................... 3

III. CHINA .................................................................................................................................................... 5

A. Chinese Claims ............................................................................................................................. 5

A. Vietnam Claims .......................................................................................................................... 37

A. Evaluation of China’s Position .................................................................................................... 64

II. ACQUISITION OF TERRITORY

The Southwest Commissioner is seriously concerned with the incidents of France

The Chinese Government is very much concerned with…[the French‐declared

a. The Sino‐French Treaty of 1887

b. French Recognition before World War II

c. French Recognition after World War II

e. World War II Documents

g. San Francisco Peace Conference

it is an indisputable fact original Chinese territories which were severed from…[China],

h. International Civil Aviation Organization (ICAO) Conference

j. Other Supporting Publications

“Cochinchina…includes Cochinchina proper, Tonkin, a few scarcely inhabited islands not

a. French Colonial Rule

A number of scientific studies of the islands were subsequently conducted by the

Republique Francaise [French Republic]

Notice concerning the occupation of certain islands by French naval units.

b. Return to South Vietnamese Control

 May 19, 1963, steles on Truong Sa Island (Spratly proper)

…Paracel and…Spratly Archipelagoes are integral parts of Vietnamese territory. Viet

1. Discovery versus Awareness

2. Probative Value of Historic Maps

a. Remote and Uninhabited Territories

Manifestations of territorial sovereignty assume…different forms, according to

Few territorial features in the world…can more adequately be described as remote

b. Suzerain and Vassal

Thus, to be considered relevant, acts by private individuals must be immediately followed up or

a. The Sino‐French Treaty of 1887

Professor Zou further concludes that the purpose of the treaty

A similar argument can be made with respect to a determination of sovereignty of the

b. French Recognition before World War II

…sufficient to establish incontrovertibly that Annam took effective possession of the

c. French Recognition after World War II

e. World War II Documents

g. San Francisco Peace Conference

 subparagraph (b)—the rights of China to Formosa and the Pescadores;

Vietnam’s position regarding Article 2 of the Treaty is supported by statements made in

As to territorial trusteeship, it appeared desirable that the Governments represented at

US has no thought of opposing the reestablishment of French control in Indochina and

h. International Civil Aviation Organization (ICAO) Conference

i. North Vietnamese Indifference

Command, p. 223, http://www.history.navy.mil/avh‐1910/PART08.PDF. See also H. Nguyen, note 204 supra, at p.