The turning point of 1884 is an important one for the archipelagos, marking as it does the beginning of the period of French colonization in Vietnam and also, coincidentally, the establishment (after the Congress of Berlin) of new rules of international law. While at first valid in the specific context of the Great Powers present in Berlin and relating only to African territories, the rules extended under the effect of custom and by application in jurisprudence to the point where they became universal. They were later followed by other fundamental changes in the law.
Yet the period which then dawned was a tangled web of extreme complications both as regards the general situation in the two countries chiefly concerned (China and Vietnam), and as regards the administration and occupation of the two archipelagos. Was the right of sovereignty over the archipelagos, which had developed up to the 19th century in Vietnam's favour, consolidated and maintained, or did it disappear through the simple abandonment of these territories, or did it give way to another sovereignty and in what circumstances?
First, we must outline the development of international law since 1884 (Section I). Then the situation in the archipelagos will be considered in relation to the two main historical periods: the years during which the French colonial State exercised international authority over Vietnam until 1954— 1956 (Section II), then the years when the Vietnamese people reappeared speaking for itself, but with the many complications and contradictions of the history of Vietnam since the end of the colonial war (Section III).
One element will be analysed in an introductory paragraph thus dispensing with one argument relating to the Franco-Chinese Treaty of 26 June 1887, which had no bearing on sovereignty over the archipelagos.
THE FRANCO-CHINESE TREATY OF 26 JUNE 1887 Where the acquisition of sovereignty is concerned, treaty titles occupy an important place, even though this is not necessarily decisive in all cases.True, inter-State relations are more solid if based on a written text, each word of which tells and to which the States have pledged themselves by their signature and ratification.
States having acquired territories originally vacant by discovery followed by effective administration with the intention of exercising sovereignty, have thus traditionally sought firmly to base their rights by ensuring that they were recognized in written conventions concluded with third and sometimes rival States.
However, and notwithstanding the solidity of the rights recognized by treaties, deriving from the principle of respect for an undertaking given (pacta sunt servanda), the treaty can only be the proof and support of effective administration. By itself it cannot make up for the lack of such administration. Still less could it entail the attribution of sovereignty to a State whose inactive title conflicted with an effective administration actually exercised by another State.
This was the whole thrust of the award delivered on 4 April 1928 by Judge Max Huber in the Island of Palmas case. The Award states, among other things:
Moreover, even if she (i.e. Spain) had acquired a title she never intended to abandon, it would remain to be seen whether continuous and peaceful display of sovereignty by any other Power at a later period might not have superseded even conventional rights.1
What has to be investigated, therefore, is both the reality of the administration of the islands and the intention to exercise that administration as a sovereign.
However, it is still illuminating to establish whether there was a genuine treaty commitment with respect to these territories.
Where the archipelagos in the China Sea are concerned, no such reference is made by either of the parties with respect to the period examined in the previous chapter.
On the other hand, when during the colonial period France expressed interest in the Paracels and the French Government challenged China's right to grant concessions on the archipelagos, China sought to base its claim on various arguments. A Note dated 29 September 1932 from the Republic of China to the French Government based itself on the Franco-Chinese Convention of 26 June 1887, which traced the frontier between China and
Vietnamese territory then under French control.2 The Chinese Government still holds to this view today. An example is a Chinese publication of 1956, which states:
In Kwangtung, it is understood that the disputed points which are situated to the east and north-east of Monkai, beyond the frontier as fixed by the Delimitation Commission, are allocated to China. The islands which are east of the Paris meridian of 105°43' east,3 that is to say the north-south line passing through the eastern point of the island of Tcha's-Kou or Ouan-Chan (Tra Co) which forms the boundary, are also allocated to China. The island of Gotho [Kao Tao] and other islands west of this meridian belong to Annam.
A Chinese author, Shao Xunxheng, bases himself on the terms of this Convention when contending, in an article published in Renmin RibaoPeking No. 3 of July 1956, that the Paracels and Spratlys lying east of this delimitation belonged to China under the same text.
The French colonial power would thus appear, by this form of words which does not even mention the two archipelagos, to have abandoned them three years after extending its protectorate over the whole of Vietnam. This is an argument which is found in a number of western authors writing in English or French.4
However, there is good reason to consider this view irrelevant. For the Vienna Convention of 29 June 1969, which codified the rules for the interpretation of treaties, stresses the role of good faith in the interpretation and the need to interpret the texts in accordance with the ordinary meaning to be given to the terms and in the light of the object and purpose of the treaty (Article 31).
The same Convention (Article 32) authorizes recourse to the preparatory work and to the circumstances surrounding the conclusion of a treaty where a first interpretation leaves doubt about its meaning or leads to an absurd result.
The object and purpose of the 1887 Treaty were the delimitation of the frontier between Tonkin and China (indeed, this is the title of the Convention as formulated by its authors). The Convention relates to the land territories. Although indications of lines drawn in the sea are given in old conventions
2 See Annex 10 for this Note.
3 In other words, at longitude 108 ° 03' 13 " east of Greenwi ch.
4 See, for example, Jeannette Greenfield, op. cit., p. 155.
such as the one concluded between France and China in 1887, as well as in others such as the 1886 Convention between France and Portugal,5 they cannot be used in contemporary maritime delimitation negotiations other than as pointers to be reviewed in the light of modern delimitation law.6 The only maritime territory on which the States claimed rights was the territorial sea. Its usual breadth was three nautical miles (the nautical mile is equivalent to 1.8 kilometres). For some States, it had been extended to six miles. There was neither contiguous zone, nor fisheries zone, nor continental shelf, all these institutions dating from after World War II.
The frontier to be delimited was that between Tonkin and China. Only this part of the present Vietnam was concerned, which France referred to as Tonkin.
Hence, the interpretation of this text must mean that it can be seen as an indication of the attribution of the coastal islands of the two States. As a convention intended to settle the fate of the mainland, its additional purpose was to determine the closest islands. In the interests of simplicity and effectiveness, the text does not enumerate all of them. There are some very small ones and there would be the danger of omitting one or other of them from the attribution. The inclusion of the meridian is illuminating. Furthermore, if some new island were to be formed by the accumulation of sand or some other geological phenomenon, it would be attributed in pursuance of the text. This and nothing else is the meaning of the 1886 formulation.
In support of this interpretation, it is very important to note that the line indicated has a precise starting point - the north-south line passing through the eastern point of the island of Tcha's-Kou (Tra Co) - but has no terminal point. This cannot be either chance or an oversight. The line has no need to end on a point. Its useful length is a function of the existence of the coastal islands.7
5 Note, in this connection, the somewhat analogous case between the Republic of Guinea and the Republic of Guinea-Bissau (Arbitral Award of 14 February 1985). A treaty of 12 May 1886 was disputed. The Treaty had drawn a maritime perimeter to separate the islands under French and those under Portuguese sovereignty. The Republic of Guinea held this line to possess the status of a maritime boundary. The Tribunal did not endorse this view, holding (paragraph 56 of the Award) that the object of the 1886 Convention had been the attribution of land territories alone.
6 On the 1887 Convention and the maritime delimitation between China and Vietnam, see J.R.V. Prescott, The Maritime Political Boundaries of the World (London, New York, Methuen, 1985), pp. 224 et seq.
7 This is indeed the meaning given to the terms of the Convention by the French diplomats, for whom this meridian marks only the maritime extremity of the boundary between China and Tonkin (Foreign Affairs Note of 20 July 1933).
How could it possibly have been thought that the authors of the text had envisaged the legal validity of this line to where it intersects the coast of Annam? All the Vietnamese coastal islands in the region which lie south of Hue would have become Chinese by virtue of this text... Yet this is precisely what the Chinese authors do not scruple to defend, seeing as they do in this Treaty the conventional basis of China's title to the Spratlys. The recognition of China's rights therefore had no limits in the east and south-east. It can thus quite legitimately be asked why one should stop at these coral archipelagos? The rights conceded to China by France might thus be extended so considerably as to border on the absurd... and prompt China to claim a conventional title to the Philippines for instance. For are the Philippines not islands situated east of the meridian indicated?
However, if the interpretation becomes absurd, the pointers provided by the Vienna Convention must be followed to see whether the preparatory work can confirm or invalidate it.
The preparatory work does indeed illustrate the concerns of the two parties and what was at stake in their relations at the time. This was trade. France was dominated by the concern to secure the Indochinese market (an Indochina with delimited, and therefore controllable, land frontiers), and, in view of European rivalries in this field, to create the most favourable possible conditions for penetrating China.
The question of the archipelagos was not raised by either side during the negotiations.
Subsequent events were clearly to show that the years which followed were years of loss of interest on the part of these two countries in the Paracels and the Spratlys. The awakening would come later, prompted by other desires. It was then that China sought to invoke an ad hoc interpretation of the 1887 Treaty. France, however, the other contracting Party to this Convention, strongly protested against this interpretation:
The provisions of the 1887 Treaty... had no other object but to fix the maritime frontier between China and Tonkin in the region of Monkai, attaching to China some territories and islands situated east of the mouth of the River Monkai and which were formerly under Annam. To simplify matters, the 105°43' Paris meridian was chosen as the demarcation line. However, the text of the agreement clearly shows that the clause at issue specifically refers to the Monkai region. To seek to apply it to the Paracels, which are situated almost 300 nautical miles south-east, would amount to saying that everything east of the 105°43' meridian belongs to China. China could therefore lay claim to most of the coastal islands of Indochina, Poulo Cecir among them! The absurd consequences of such an argument clearly show that only local scope and significance should be given to the clause in the 1887 Convention.8
Meanwhile, international law relating to the attribution of territories has evolved. It has become exacting and more technical.APPLICABLE LAW AFTER 1884 The late 19th century, a period of intense international relations, was also a period of many changes which gradually refrained international law.
The rights of the various parties are evaluated on the basis of four concepts. These are: the fresh requirements of international law with regard to consolidating and maintaining title to territory (1884-1885); the concept of State succession with the need to identify the predecessor and successor State in each case, and its extensions in the form of the principles of the protection of territorial integrity and of the right of peoples to selfdetermination; the prohibition of the use of force and of the acquisition of territory by force; the notion of the critical date when weighing up international disputes, especially territorial disputes, and the need to identify the moment of crystallization, after which the acts of States can no longer be taken into account for the construction of a right, because such acts are carried out with the intention of belatedly displaying their authority.
The rules governing rights to a territory in the late 19th century and thereafterLike any other treaty, the Berlin General Act of 1885 which divided up the African territories, was relative in character. It bound only the States parties and was valid only in respect of the territories under negotiation.
Yet, because it was the expression of the new social requirement, its content rapidly became universal in scope.
The acquisition of title (which could have taken place under the less stringent requirements of the previous era) then had to be consolidated under the new, stricter conditions. The right was maintained only if such conditions were complied with.
In order to examine whether or not this process of consolidated acquisition of sovereignty took place, we shall endeavour to identify the manifestations of sovereignty of the claimant State, and of its supposed rivals.
The party which claims title must be able to prove that it exercised that title through regular acts of the State, covering the entire territory concerned inasmuch as physical conditions allowed, these acts corresponding to permanent, uninterrupted possession and peaceful administration. Where this is lacking, international tribunals consider that there is insufficient evidence of the government's intention to act as sovereign, since in that case:
Those acts [are not] of such a character that they can be considered as involving a manifestation of State authority in respect of the islets.9
The machinery of consolidation is therefore very important.The method followed by the Court (particularly in the Minquiers and Ecrehos case) consists in acknowledging the territorial sovereignty of the State which is able to prove a long, well-established usage, reflecting a set of interests or relations attaching the territory to the State.10
Consolidation and maintenance of title over the centuries are linked to acquiescence on the part of other States." Such acquiescence may be active but it may also be passive.
Consolidation may apply to territories where it is not possible to establish whether they used to belong to another State, it may be achieved not only through acquiescence per se but more easily through a sufficiently long period of absence of opposition on the part of States which might be interested in disputing possession.12
The silence of third parties is important in the case of an original occupation, when a State is the first to administer unclaimed territory, and continues to do so for many years without any challenge from third parties.
9 International Court of Justice, Minquiers and Ecrehos case, Reports 1953, at p. 71.
10 Suzanne Bastid, Les problemes territoriaux dans la jurisprudence de la C.I.J. (1962) Recueil des Cours de l'Academie de Droil International. II, vol. 107, at p. 441.
11 See Jean Barale, 'L'acquiescement dans la jurisprudence internationale' (1965) Annuaire Francais de Droit International, at pp. 389 et seq.
12 Suzanne Bastid, op. cit., p. 441.
It is even more important when third parties claim that the original title was invalid because the territory was not terra nullius, other rights having already been established. If it can provide evidence of a long period of continuous, peaceful, public administration, in which the previous occupying State showed no interest, the current occupying State is then in a position of acquisitive prescription. In such a case, the judges or arbitrators scrutinize most carefully the attitude of the States claiming to hold the true, original title. Their silence implies acquiescence; conversely protest preserves their rights. For 'a sovereignty which is challenged must react, on pain of forfeiture',13 there being no 'customary rule attributing to effective possession atone the capacity to shift the existing title to sovereignty'.14 Thus nonrecognition may impede the validation of a de facto situation.15 However, such non-recognition must be periodically renewed and must reflect a genuine will to oppose the actual situation. It therefore requires a certain degree of intensity.
Such are the rules shaped by the greater demands of relations between societies and the increasing rarity of undiscovered territory, and also by the exacerbation of political rivalries between States.
All we would need to do is verify their application to the situation of the archipelagos, were it not for the fact that the vicissitudes of history introduced other concepts whose legal content must be determined before we proceed.
Notion of State or government succession and its consequencesThe issue of the international status of the archipelagos in the China Sea is greatly complicated on all sides by problems of State or government succession.16
13 Jean-Pierre Cot, Chronique de jurisprudence Internationale, Affaire du Temple de Preah Vihear (1962) Annuaire Francais de Droit International, at pp. 389 et seq.14 Marcelo G. Cohen, Possession contestee et souverainete territoriale, Publications de l'Institut Universitaire des Hautes Etudes Internationales (Geneva, PUF, 1997), p. 492.
15 Gerard Cohen-Jonathan, Les iles Falkland (Malouines) (1972) Annuaire Francais de Droit International, at p. 240.
16 For an outline of these difficulties, see the note by the Foreign Ministry's legal adviser dated 25 May 1950, Annex II. It must be noted that the legal analyses favouring the Chinese position rarely take account of the various State successions, inter alia Jian Zhou,
op. cit.
On the Vietnamese side, 120 years were to elapse between the pre-colonial Empire of Annam and a sovereign, reunified Vietnam (the shelling of the port of Tourane in 1856 marked the start of the colonial conquest).
In the initial, somewhat uncertain period (lasting approximately until the nomination of Paul Doumer as Governor General in 1897), the Empire of Annam retained a degree of international personality through the system of the protectorate. Under the first Treaty (15 March 1874), the Emperor simultaneously promised 'to align his foreign policy on that of France and to change nothing in his current diplomatic relations' (Article 3, paragraph 1) and retained the power to conclude treaties under certain conditions, albeit restrictive conditions under French control.
On 6 June 1884 a second Treaty of Protectorate, known as the Patenotre Treaty, came into force, giving France more swingeing powers. 'France shall represent Annam in all its external relations' (Article 1, paragraph 2).
The personality of Annam, a highly fictitious one, was nevertheless preserved.
Its gradual incorporation into the Indochinese Union began with the decree of 17 October 1887. Its attachment to the Ministry of the Colonies was effective from 1894 onwards.
Therefore a first instance of State succession did take place, this being understood as * the fact of the replacement of one State by another ... with respect to a given territory'" ... and a given time.
The status of French colony left no room for an international legal personality, and the personality of France effectively replaced that of the Empire of Annam. The Patenotre Treaty had not been formally abolished, yet from 1885 onwards the situation was, de facto, a colonial one.1*
The renaissance of the unified Vietnamese State was long and painful.
Although colonial France spoke for Vietnam from the time of the protectorate until the Japanese overran the French troops in Indochina on 9 May 1945, between 1945 and 1975 many voices were raised on its behalf.
A first declaration of independence was made by Emperor Bao Dai on 11 March 1945. However, on 19 August 1945 the Emperor abdicated in
17 Sir Humphrey Waldock (1968) Yearbook of the International Law Commission, vol. II, at p. 91. Quoted by Michel Virally in the preface to the work by Nguyen Huu Tru.
18 See on this subject Nguyen Huu Tru, op. cit., pp. 44-50. The author bases his reasoning on some scholarly opinion and on judgments in French administrative jurisprudence which recognized the inclusion of Annam and Cambodia in a legal entity of French public law.
favour of the Revolutionary Government of Ho Chi Minh. The Revolutionary Government, which controlled Tonkin and Annam,19 proclaimed both independence and the creation of the Democratic Republic of Vietnam on 2 September 1945.20
France found itself in a cleft stick: on the one hand, under the Agreement of 6 March 1946, it recognized 'the Republic of Vietnam as a free State having its own government, army and finances, and forming part of the Indochinese Federation and the French Union' (Article 1); on the other it was endeavouring to reassert its sovereignty over Indochina and more precisely to obtain the withdrawal of Chinese troops from Vietnamese territory.
The issue of the international status of the Republic of Vietnam was the spark which ignited the armed colonial conflict. At the time France still considered itself to have sovereignty over Indochina, whereas Vietnam intended to make full use of its international personality.
From late 1946 onwards, therefore, competing claims to exercise acts of sovereignty emerged. Under such conditions, which country validly represented Vietnam in international law between 1946 and 1949?
Changing its strategy and banking on division, on 27 June 1947 France set up a Provisional Central Government of Vietnam in Saigon, recognizing its independence in the Along Bay Declaration of 5 June 1948.
The Agreements of 8 March 1949 created an Associated State of Vietnam. Thenceforth, with the agreement of France (although not without further hesitation), the Associated State of Vietnam had an international personality.21 Through a process of tortuous legal manoeuvres, France adopted a position under which Cochin China was incorporated into this State, which was then considered to be the successor to the Empire of Annam, formerly a protectorate.
This legal procedure counted for little. From 1949 to 1954, effective government was shared between: the French Expeditionary Force, which was still present along with political advisers; the Viet Minh Government, which controlled a large part of Tonkin and Annam and was internationally recognized by certain States from 1950 onwards; the Government of the Associated State, which controlled Cochin China alone.
19 But which had had neither the time nor the means to impose its authority on Cochin China.
20 See Chronology, supra, p. 34.
Which country, therefore, was entitled to carry out international acts in the archipelagos? What was the value of such acts for the governments of later periods?
From 1954 onwards, under the Geneva Agreements, France recognized the full independence and sovereignty of the State of Vietnam. At the same time, the armistice agreements between the two high commands were concluded.
The Vietnamese military command represented the Democratic Republic of Vietnam, its French partner represented France alone, not the State of Vietnam, which rejected the Agreements.
So a further phase in the history of Vietnam commenced, one in which two States co-existed de facto, at war with each other, each claiming with different diplomatic support to represent the Vietnamese nation, and each having de facto only partial control over the territory and the population.
How should the acts concerning the archipelagos carried out by either State during this period be evaluated?The case of China
Thouh not as complex, China's case also presents some interesting difficulties in terms of State succession.
The first arises from the fact that some of the instruments issued by China on the archipelagos (especially in 1921) were issued by a local government which was recognized neither by the Central Government of China nor by the European powers.
How far could the Central Government subsequently rely on these acts? Moreover, is it possible to interpret the relations of power within China, particularly the rules for attributing international powers, on the basis of categories shaped by western political and legal culture?
From 1949 onwards a second issue of State succession arose: should the People's Republic of China or Nationalist China succeed to the claims to the archipelagos formerly made by China?
International law on State succession is somewhat vague, providing only ill-defined solutions. It gives no precise guidance on how to identify the successor and predecessor States (or Governments) when there are several contenders. That is an issue settled bilaterally through the procedure of recognition. Confronted with several contenders, each member State of the international community is free to recognize the State or government it chooses.
The content of the rules of State successionThis content is itself equivocal, since practice is so diversified.22
Nonetheless, contemporary international law has formulated and refined some recent principles which may be useful in seeking a solution to the dispute over the archipelagos.
First, the status of territories has an objective character in international law. Status remains valid not only for the signatories to a treaty (when status derives from a treaty) or for the parties directly concerned, but for all parties.
Second, there is the protection afforded to the right of self-determination of peoples under contemporary international law. It was written into the purposes of the Charter, in Article