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| Sovereignty over the Paracel and Spratly Islands |
An introduction to "Monique Chemillier-Gendreau (2000). Sovereignty over the Paracel and Spratly Islands. Kluwer Law International." Monique Chemillier-Gendreau is Professor of International Law at l'Universite de Paris VII, Denis Diderot, France. |
Table of Contents
INTRODUCTION 1
CHAPTER I
BACKGROUND INFORMATION ON THE PARACELS AND SPRATLYS 15
Geographical Background 15
General facts 15
The Paracels 17
The Spratlys 19
The Legal Issue 21
Category of territory and identification of the dispute 22
The nature of the disputed territories 22
The legal nature of the dispute 25
The norms of international law applicable to a settlement
of the dispute 27
The argument of geographical contiguity 27
The machinery of intertemporal law 29
Chronology 34
Before colonization 35
The period of French colonization up to the end of World War II 36
The period after World War II 40
CHAPTER II
ACQUISITION OF THE ORIGINAL TITLE 49
The Norms of International Law Regarding the Acquisition
of Territories until the Latter Half of the 19th Century 49
The material element 51
Mere knowledge of the territory 52
The notion of taking possession 52
The element of intention 54
Awareness or Discovery. The Situation of the Archipelagos Before
the 18th Century 56
The documents produced by the Chinese 58
Geographical knowledge 58
Uncertainty as to China's intentions 60
The documents produced by the Vietnamese 64
The Affirmation of Sovereignty (18th to 19th centuries) 66
The Vietnamese documents of the 18th and 19th centuries 66
The formation of a right to the islands and the scope of this right 70
The possible expression of competing rights 73
The case of China 73
The other States in the region 79
CHAPTER in SUBSEQUENT DEVELOPMENT OF THE TITLE 81
The Franco-Chinese Treaty of 26 June 1887 81
Applicable Law after 1884 86
The rules governing rights to a territory in the late 19th century
and thereafter 86
Notion of State or government succession and its consequences 88
The case of Vietnam 89
The case of China 91
The content of the rules of State succession 92
Principle of the prohibition of the acquisition of territories by force 93
Notion of the critical date and the moment of crystallization
of the dispute 94
The Fate of the Archipelagos during the Colonial Period 96
From the French colonization of Indochina to World War II 98
The policy of China 98
The attitude of France from taking possession of Indochina
until World War II 103
Were rights established for States other than China or France? 1ll
End of the colon ial period (after World War II) 115
Th e material elements 115
The multi-faceted element of intention 117
The Post-Colonial Period 124
The period of the division of Vietnam (1956-1975) 125
The material elements 125
The elements of intention 126
The return to a reunified Vietnam after the 1975 victory 131
CHAPTER IV
CONCLUSIONS AND BASES FOR A SETTLEMENT OF THE DISPUTE 135
Substance of Rights to the Archipelagos 135
The case of the Paracels 135
The case of the Spratlys 137
Prospects for a Settlement 139
BIBLIOGRAPHY 145
General Texts 145
Articles by Legal Commentators on General Issues 146
Books and Articles on the Question of the Archipelagos of the
South China Sea 147
Arbitral Judgments or Awards 151
Miscellaneous 152
Ad hoc documents produced by the Vietnamese government to
explain its position: 152
Documents expressing the Chinese positions 152
Documents relating to the draft peace treaty with Japan and the
San Francisco Conference (1951) 152
United Nations documents 153
Archive Documents 153
In the archives of the French Foreign Ministry 153
In the overseas archives (Aix-en-Provence) 153
Maps 153
ANNEXES 155
Introduction
The maritime space traditionally named the South China Sea by geographers and today called the Eastern Sea by the Vietnamese, lying south-east of Asia and bounded to the north by China and Hainan Island, to the west by Vietnam, to the south by Malaysia and Brunei, to the east by the Philippines and to the north-east by Taiwan, is dotted here and there with unprepossessing archipelagos. The legal status of two of these, the Paracels in the north and the Spratlys in the south, is today undecided, their sovereignty being disputed by several States.1 It may be asked whether there is sufficient subject-matter here for a book.
It could well be argued that these quirks of geology, flyspecks on the map, barely protruding above water, do no more than break the calm of the sea and create numerous hazards for sailors. Admittedly, by modifying the relationship between the land and sea masses, they play a role in the formation of specific meteorological phenomena in this tropical area, and provide privileged vantage points for observing the formation of typhoons. It is understandable that seafarers should take an interest in them in order to give them a wide berth. It is conceivable that meteorologists should scrutinize their role in massive disturbances to the sky and sea. Yet for jurists to take an interest in these islands, home to rats, turtles and cyclones and cloaked in torrid heat for part of the year, can only be understood once we unveil the prodigious strategic and economic interests they represent in the latest game of geopolitics.
Since ancient times, these inhospitable places have been known to longdistance navigators, who strove to avoid them so as not to perish. For a few months of the year skilled sailors and fishermen from neighbouring continents camped there in order to fish or glean a seasonal harvest. Before the 20th century, they were coveted by none save the Emperors of Annam, who rationally organized fishing and the seizure of the goods regularly yielded by wrecks.
(continued)
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