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Historical documents prove that from the Tang and Song Dynasties, the Chinese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They have exploited all the elements recorded in the historical documents of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