On January 17, 1974, taking advantage of the ongoing Vietnam War, China deployed a large naval force to attack and occupy the Paracel Islands. China’s use of force to take control of the Paracel Islands seriously violated not only the UN Charter but also international principles on acquisition of territorial sovereignty.
In order to settle once and for all territorial disputes between countries, after the Berlin Conference of 1885 and the conference of the Institute of International Law in Lausanne, Switzerland in 1888, many scientists as well as countries around the world agreed on the implementation of a new sovereignty acquisition method. It’s the “effective occupation.” This is the legal principle Vietnam relies on to prove and claim sovereignty over Paracel Islands and Spratly Islands.
The key idea of “effective occupation” in international law is that the determination of territorial sovereignty must be carried out by the State. The effective occupation must take place peacefully in a territory not currently under sovereignty of any state (terra nullius) or in a territory abandoned by a state which had previously owned it (dereclicto). The use of force to take over is an illegal action. The occupying state has to exercize its sovereignty at necessary levels, at least suitable for the natural conditions and population in that territory on a continuous and peaceful basis.
Due to the principle’s logicality and coherence, even though the Treaty of Saint Germain in September 10, 1919 declared to cancel the Berlin Act of 1885 since the world no longer had terra nullius, lawyers and international arbitrations still apply the principle in solving sovereignty disputes over islands.
Some examples illustrating it are The Hague Permanent Court of Arbitration (PCA)’s application of this principle in solving the sovereignty dispute over Palmas Island between the US and the Netherlands in April 1928; the award of the UN International Court of Justice (ICJ) in the sovereignty dispute over Minquiers Island and Ecrehous Island between the UK and France in November 1953; the award of the ICJ in December 2002 ruling Malaysia’s win over the case regarding sovereignty over Pulau Ligitan and Pulau Sipadan as Malaysia has exercised its state function activities there regularly.
According to this principle, the Paracel Islands fully belongs to Vietnam. Many historical materials with high legal value in Vietnam and international archives demonstrate that Vietnam was the first country to occupy and exercise its sovereignty over the Paracel Islands when they were still terra nullius, at least since the 17th century. The effective occupation and exercise of sovereignty by Vietnam in these islands were clear, continuous, peaceful and in accordance with the existing method of territorial acquisition – effective occupation principle – of international public law.
Vietnam’s effective occupation and exercise of sovereignty over Paracel Islands can be seen throughout history. For 3 centuries, since the 17th century to the end of 19th century and through 3 different regimes, Vietnam had been carrying out its sacred duty as the State of Dai Viet to effectively occupy and exercise sovereignty over the Paracel Islands.
The Hoang Sa (Paracel) Flotilla was a body established by the state to manage, protect and exploit the islands. The Hoang Sa Flotilla, later forming additional Bac Hai (North Sea) Flotilla the command of the Hoang Sa Flotilla, had acted on the order of 7 lord generations, since Lord Nguyen Phuc Lan or Nguyen Phuc Tan to the Tay Son Uprising, and did not encounter any conflict or struggle.
The Vietnamese feudal state already had administrative unit of Paracel Islands in the then state administrative system. It is clearly written in Vietnam’s historical materials. Under the reign of the Lords of the Nguyen family, Paracel Islands belonged to Thua Tuyen Quang Nam Province or Quang Nghia (or Ngai) as either “tran” ( commune) or “phu” (district): “Bai Cat Vang trong phu Quang Nghia (The Golden Sand in Quang Nghia district)” (Toan tap Thien Nam Tu chi Lo do thu – Complete Route Maps of the Four Directions of the Southern Sky); “Hoang Sa o phu Quang Nghia, thuoc dinh Quang Nam, huyen Binh Son, xa An Vinh (Paracel Islands in Quang Nghia district, Quang Nam province, Binh Son town, An Vinh village)” (Phu bien Tap luc by Le Qui Don – Le Quy Don’s Records of the Court). In the Tay Son era, Quang Nghia district changed its name to Hoa Nghia. In the Nguyen regime, Paracel Islands belonged to Quang Ngai province.
Following the feudal state of Vietnam, to represent the state of Vietnam diplomatically according to the Patenotre Treaty of 1884, the French colonial government protected and managed Paracel Islands in accordance with contemporary legal regulations. Many materials, including legal documents in France and Vietnam demonstrate this.
When Vietnam was divided into the North and the South according to the 1954 Geneva Agreements, the Paracel Islands, situated below the 17th parallel, should have been under the control of the Republic of Vietnam (South Vietnam). The government of the Republic of Vietnam, a legal entity in international relations, continued to protect and govern Paracel Islands since 1954. It continuously exercised sovereignty over Paracel Islands through national administrative documents as well as on the field until China attacked in 1974.
After the unification of the North and the South Vietnam in 1975, the government in Hanoi always issued a protest against China’s actions in Paracel Islands and affirmed its sovereignty over the islands, emphasizing that Chinese illegal actions were violating Vietnam’s sovereignty. China’s occupation by force and its illegal actions could not constitute “Chinese sovereignty” over these islands.
To argue for its occupation by force, China opined that it had “historical rights” to the Paracel Islands (which China called “Xisha Islands”). It said that Chinese ancestors for the past thousands of years had discovered, exploited, occupied and exercised sovereignty over the islands. This is a fallacy that leaders in Beijing reiterated. China has been seeking ways, quoting books and historical, geographical materials to prove and defend its legal position on the actual process of establishing and exercising so-called “historical rights” to the Paracels.
In reality, China cannot find any specific materials to support its argument which was all but distorted truth and misleading quotes. All China-made maps from before till the Qing Dynasty showed that the southern border of China ended at Hainan Island. It is critical to mention this because if China had found the real proofs of its sovereignty, it will not be so hesitated to present them to the international arbitration.
Even Li Linghua, a known Chinese expert in international public law, said that “these [historical] proofs are losing their significance in modern international law…, the only convincing evidence is effective occupation. You say it belongs to you, but have you ever governed it? Do the people there serve and follow you Is there not any objection? If the answers are “yes” then you win the case. We [China] don’t have it…”
Monique Chemillier Gendreau, a political science and international public law professor at Paris VII Denis Diderot University and former president of French Federal Bar Association, said that “the Chinese’s long time awareness of multiple islands in the South China sea is not sufficient to serve as a legal basis to defend the argument that China was the first country to discover, exploit, and govern the two islands”.
Thus, it is clear that China’s “historical rights” are invalid, and possibly a very dangerous point of view which causes instability to the current legal existence of countries around the world, including China itself as historical basis alone cannot confirm the existence of many states.
Despite the above truth, to cover up the gradual occupation by force of Paracel Islands in 1909 (Governor of the Guang Dong and Guang Xi), 1956 and 1974 (People’s Republic of China), China has been utilizing political, legal and propaganda tricks as well as scientific forums, economic projects, reclamation and expansion of offshore features as well as military facility construction to lure the recognition for its ambiguous and false “historical rights.”
China’s occupation of the Paracel Islands by force is an act of invasion which seriously violated the UN Charter and other standards of international law. China’s argument for “historical rights” also breaks the principles of territorial acquisition.
It was 46 years ago, on January 17, 1974, China deployed a huge number of marine and navy forces to invade Paracel Islands. Let us all look back at the whole story from a historical viewpoint to see clearly the true ugly face of a hegemonist and expansionist China and join hand in defending Vietnam’s sovereignty of the Paracel Islands./.