Who are the Occupants? — A Reply to Dr. Nguyen’s Post

Who are the Occupants? — A Reply to Dr. Nguyen’s Post

[Junru Lyu is a J.D. Candidate at Georgetown University Law Center, with an LL.B. degree obtained from Shandong University.]

Photo credit: Gallo Images—Getty Images

On Apr. 17th, Dr. Trung Nguyen Quoc Tan published his post concerning the occupation status of the Paracel Islands and the Spratly Islands. He claims in his post that given China’s military and paramilitary activities in the South China Sea over the last decades, using the law of occupation could help Vietnam to claim a return of the Islands from China.

From the law and the facts, there are ample arguments to reject this approach. The author would like to focus on the simplest one: presenting ample counterevidence to Dr. Nguyen’s claims.

Decisions from international tribunals and state practice all confirmed that the determination of occupation status is a matter of fact. The first prong of the two-threshold test Dr. Nguyen used requires that the “new power obtains territory from a legitimate administrator via hostility.” Therefore, two questions are present. First, had France obtained the sovereign title over the Paracel Islands before its occupation of the Paracel Islands in the 1930s? Second, was the sovereign title returned to France and, later on, Vietnam after WW II? The author contends that those questions, even if cannot both be answered negatively, are highly debatable.

Had France Obtained the Sovereign Title over the Paracel Islands before its Occupation of the Paracel Islands in the 1930s?

France did not obtain control before the 1930s over the Paracel Islands. And even if we do not mention the ample research of China’s civil and commercial exploitation of the resources in the South China Sea and on Paracel Islands dating back to the 7th century AD, there are mass documents confirming China’s administrative control over the Paracel Islands and international recognition to China’s sovereignty over the Islands in 19th and 20th centuries. China formally asserted sovereignty over the Paracel Islands to defeat the French efforts to incorporate them under its domination over French Indochina during the 1884-1885 Sino-French War. In 1909, An Imperial China’s Governor inspected more than fifteen islands of the Paracel Islands with the company of Tsing Imperial Navy’s fleet. They set up stone tablets engraved with the names of the islands (p. 405). After that, the Imperial government and the succeeding Republic of China government continuously exercised administrative power over the Paracel Islands until the French occupation of the Islands in 1930 and 1932. The French invasion of the Paracel Islands could also be fairly attributed to the fear of Japan (pp. 4-5) since the French Ministry of Foreign Relations also recognized the sovereignty of the Chinese government over the Paracel Islands before the occupation (p.40). The recognition of Chinese sovereignty over the Spratly and Paracel Islands from France and Japan was also abundant.

Therefore, at least it would be too hasty to derive a conclusion that the French government had sovereignty over the Paracel Islands when it occupied the Islands in the 1930s. Occupying terra nullius gives the State sovereign claims over the islands. Occupying islands that were already under the other States’ administration and control, on the other hand, does not. What is more, France did not effectively govern and administer the Islands after their annexation in the 1930s and before the Japanese invasion (p. 31).

Was the Sovereign Title Returned to France and, Later on, Vietnam after WWII?  

Dr. Nguyen claims that the international community recognized French sovereignty over the Spratly Islands and the Paracel Islands. However, this might not be a solid case even for the Vietnamese government. Vietnamese Vice Foreign Minister acknowledged in 1956 that according to historical data, the Xisha and Nansha Islands were parts of China’s territory (p.176).

France signed the Treaty of San Francisco, thereby in effect relinquished any claims to the Spratly and Paracel Islands by failing to reassert annexing the Islands following Japan’s renunciation. Also, Japan signed the Peace Treaty with Nationalist China in 1952, reiterating renunciation all claims to Spratly and Paracel Islands. Given Japan’s stipulation that the treaty deals with only territories concerning Nationalist China, treaty interpretation would speak in favor of the recognition of China’s sovereignty over the Paracel and the Spratly Islands (p. 79-80).  By 1974, France conceded to England that its title to the Spratly Islands had lapsed (p. 111).

The international community’s views also vary. The United Kingdom and the former Soviet Union also showed some degree of support of China’s claim of sovereignty over the Spratly Islands and the Paracel Islands (p. 413), despite the United Kingdom’s swinging attitudes suggested by some scholars. The United States recognized that there was a dispute over the titles of those Islands but preferred to stay out of this dispute. The most conservative conclusion is that States did not reach a consensus about the sovereignty over the Paracel and Spratly Islands during the 1940s. After that, the Republic of China government declared sovereignty over the Islands in 1947; only France voiced objections.

The Silent International Community after the Armed Conflicts in 1974

The law of occupation is a matter of jus in bello, but the sovereignty of the battlefield is not. As is also noted by Dr. Nguyen, the claim of reparation relies on a prior wrongful act of occupying foreign territories.

The international community generally does not acquiesce to unlawful attacks of foreign territories. For example, the disputed Six-Day War in 1967 received a unanimous Security Council Resolution in which the Security Council restated the “inadmissibility of the acquisition of territory by war” and a draft from former Yugoslavia concerning the situation was also presented in the General Assembly, receiving more than 50 votes for it. Not to mention the broad concerns over the situation of Namibia repeatedly expressed by the Security Council and the General Assembly. In contrast, when Israel initiated an airstrike to destroy a suspicious Syrian nuclear reactor that was neither reported to the IAEA nor publicly disclosed, the international community remains silent on this issue.

After the 1974 conflict between China and Vietnam over the Paracel Islands, there were few reactions to it from other States. The United States decided to “stay clear of the whole area”  without any specific remarks on the legality of the conflict (p. 512). Indonesia voiced support of China’s sovereignty over the Paracel Islands in an interview from AFP.  It could surely be argued that Vietnam did not raise a case before the Security Council based on the fear that China could exercise the veto right. But diplomatic communications revealed that South Vietnam was concerned that there would be a number of States sitting in the Security Council voting against their proposals. Despite the suggestions from the United States that the case could be brought before the International Court of Justice, the ITLOS, or the General Assembly, there was no action taken either by Vietnam or other States in the United Nations to express concerns. Such a silence to the armed conflict at concern, although not direct evidence of the legality of China’s claim over the Paracel Islands, facilitated such a recognition.

Based on the evidence listed above, Dr. Nguyen might draw his allegations too hastily when he did not provide enough evidence to solidify his claims and when there is contrary evidence to them. The failure to prove this definite fact leads to the failure to prove its significance in legal advocacy. If the determination of the occupation status itself relies on definite proof of Vietnam’s sovereignty over the disputed Islands, then the premise has more significance than this means.

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Asia-Pacific, General, International Humanitarian Law
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