Found this:
A legal analysis in support of Vietnam's position regarding the Paracel & Spratlys
CHINA AND TAIWAN'S ARGUMENTS
As China and Taiwan share the same arguments about the Paracel and Spratly Islands, they can be presented together as
follows.
China was the first country to discover and occupy the Paracel and Spratly Islands as terra nullius
China asserted that it was the first country to find the archipelagos, and this discovery was made as early as the reign of Emperor Wǔof the Hàn Dynasty (2nd century BCE)10. This argument, however, is not backed up by official historical documents. On
this issue, Nguyễn Hồng Thao commented that “most of these documents are travel accounts, monographs, and navigation
books demonstrating knowledge of ancient people about territories belonging to not only China but also other countries”9.
Moreover, in these documents, the territories which China now claims to be the Paracels and Spratlys are named inconsistently,
thus there are no convincing arguments that those territories are really the Paracels and Spratlys5.
Moreover, the aforementioned assertion from China contradicts the encyclopedia Gǔjīn TúshūJichéng(古今圖書集成, Complete Atlas on the Past and Present) completed by the Qing Dynasty in 1706. None of the maps in Zhífāng Diăn(職方典, Dictionary of
Administrative Units) of this encyclopedia, including Zhífāng Zŏngbùtú(職方總部圖, General Map of the Administrative Units,
Number 1), Guăngdōng Jiāngyùtú (廣東疆域圖, Territorial Map of Guăngdōng, Number 157), and Qióngzhōufǔ Jiāngyùtú(琼州府疆域圖, Territorial Map of Qiongzhou Prefecture, Numer 167), indicate any archipelagos farther to the south than Hainan Island.
The islands depicted in Guăngdōng Tōngzhì (廣東通志, Annals of Guăngdōng), made during the reign of Emperor Jiājìng of the Ming Dynasty (1522–1567), also do not go beyond Qiongzhou (i.e. Hainan)11
.
The finding of ancient money and goods dated back to the Wáng Măng (王莽
Era (9–23 CE) is also used as archaeological evidence by China to support the early presence of its fishermen in the archipelagos. However, even if these pieces of evidence are
valid, Chinese fishermen’s early presence was merely private/individual activities and thus cannot constitute an effective occupation by a State as required by international law.]
China also claims sovereignty over the archipelagos by asserting the following events:
The Sòng Dynasty (960–1127) sent its military patrols to the Paracel Islands’ area. This assertion is based on Wǔjīng Zŏngyào (武经总要, Military General Records) with a prologue written by Emperor Rénzōng5. However, according to
Monique Chemillier-Gendreau, this record merely indicates that there were geographical surveillance trips conducted by the
Chinese that went as far as the Indian Ocean, and that China knew of the Paracel Islands. The document, however, does not
demonstrate any possession.
- In the 13th century, emperors of the Yuán Dynasty ordered the astronomer GuōShŏujìng (郭守敬
to conduct astronomical observations in many areas, including the Paracel Islands. However, Guō’s observations, performed both inside and outside of China, were only astronomical research activities and thus could not legitimize any sovereignty status over the territories from which the observations were made.
- Wu Sheng (吳升
, Guangdong navy’s rear-admiral, commanded a patrol to the Paracel Islands in 1710–1712. However, according to Monique Chemiller-Gendreau, this was in fact a patrol around Hainan Island and did not go as far as the Paracels.
- The local government of Guangdong opposed a German ship conducting research in the Spratly Islands in 1883. This opposition, however, was only a diplomatic action and did not have any legal status as China’s sovereignty had not been established9.
Therefore, historical evidence used by China to support its claim is insufficient and weak according to international law. These
pieces of evidence do not demonstrate any occupation, effective administration, or sovereignty12. As far as the effective
occupation of the Paracel and Spratly Islands as terra nullius without protests from other States are concerned, Viet Nam’s
arguments are stronger than those of China13.
China’s arguments regarding the period from early 20th century to 1945
It was not until the beginning of the 20th century that China showed any real efforts in occupying the Paracel Islands. In 1909, Admiral LǐZhǔn (李准
commanded a small-scale landing (over a period of 24 hours) in the Paracel Islands. His troops raised their flag and fired their guns to mark China’s sovereignty5 (which raises the question of why LǐZhǔn’s fleet acted as if this was the first time the islands were discovered despite China’s claim to have possessed them long before?)
]
In 1921, the self-proclaimed Guăngzhou Military Government annexed the administration of the Paracel Islands to Yái (崖
District. This action did not meet any response as the Guăngzhou Military Government was not recognized by any countries in the world.
In 1937, Japan occupied the islands offshore of Indochina despite the opposition from the French authorities, renamed them to “Shinnan Shoto”, and put them under the jurisdiction of Kaohsiung (Taiwan), which China had ceded to Japan in the Treaty of Shimonoseki of 1895. Japan maintained its occupation in the South China Sea’s archipelagos throughout World War II.
In summary, with a limited effort in early 20th century to demonstrate its sovereignty in the Paracel Islands, China neither
actually and continuously occupied nor effectively established administration over the archipelago. At the same time, China had absolutely neither influence nor interest in the Spratly Islands and did not protest when Japan claimed and occupied them. In contrast, France was the only country to protest against Japan’s occupation of the Spratlys. An irrefutable evidence of China not
considering the Spratlys to be its territorry was China’s diplomatic note to France in September 1932 claiming that the Paracels
“form the southernmost part of Chinese territory”5.
China’s arguments regarding the period after 1945
After Japan’s surrender in 1945, it withdrew troops from mainland and all archipelagos of Indochina. France promptly restored its presence in the Paracel Islands in June 1946. In July 1947, the Republic of China sent its troops to Woody Island in the Paracels. In response, France opposed this illegal occupation and sent a military unit to the Paracel Islands to set up a garrison and built a meteorological station which would be in operation for the next 26 years until the People’s Republic of China used military force to occupy the archipelago in 1974.
At the end of 1946, the Republic of China sent its troops to occupy Itu Aba Island in the Spratlys after France had erected a sovereignty stele. The Chinese Civil War’s conclusion and the proclamation of the People’s Republic of China in October 1949 forced the Republic of China’s troops to leave Woody Island in the Paracels and Itu Aba Island in the Spratlys while the French garrisons were maintained.
In April 1956, French forces were withdrawn from Indochina. In the Paracels they were replaced by the Republic of Viet Nam’s
troops (i.e.,South Viet Nam’s troops). At the same time, the People’s Republic of China’s troops secretly landed and occupied
Amphitrite Group in the eastern part of the Paracel Islands5. On September 4, 1958, China issued a statement on its
twelve-nautical-mile territorial waters, including around both the Paracel and Spratly Islands. On January 19, 1974, China used its military forces to occupy completely the Paracel Islands. Until then, the Spratly Islands “were completely out of China’s
influence, let alone China’s intention to control them”7. In February 1988, China sent troops to some islands in the Spratlys, and a month later, seized six islands from Viet Nam5. All of these events make China a unique claimant in the Spratly Islands for its
exclusive claim over the whole archipelago and its absolute lack of control in reality until 1987.
China then established its 33rd province including Hainan Island, the Paracels, and the Spratlys in April 1988, occupied one more small island in the Spratly Islands in May 19895, and seized Mischief Reef of the Philippines in February 1995.
China’s main approach to seize control over the islands is to use military force, an approach which has been condemned by
international law since early 20th century. The Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, adopted on October 24, 1970, also states
explicitly that “The territory of a State shall not be the object of military occupation resulting from the use of force in
contravention of the provisions of the Charter. The territory of a State shall not be the object of acquisition by another State
resulting from the threat or use of force. No territorial acquisition resulting from the threat or use of force shall be recognized as
legal”. The use of military force is therefore against international law and cannot legitimize any legal status for China in the
Paracel and Spratly Islands.
China’s use of statements by the Democratic Republic of Viet Nam
China maintains that Viet Nam recognized China’s sovereignty over the Paracel and Spratly Islands during the Viet Nam War by
statements of the Democratic Republic of Viet Nam (North Viet Nam) including
- A verbal expression by Deputy Foreign Minister Ung Văn Khiêm on June 15, 1956 to a standing member of the Embassy of China in Ha Noi that these archipelagos are part of China’s territory in terms of history. However, China fails to provide the meeting’s
minutes that contains this expression by Deputy Foreign Minister Khiêm14. It should also be noted that, according to
international law, deputy foreign ministers do not by default have the authority to represent a State in such matters.
- A diplomatic note by Prime Minister Phạm Văn Đồng on September 14, 1958 in which China’s claim of twelve-nautical-mile territorial sea was said to be approved without any reservation of opinion regarding the Paracel and Spratly Islands.
Whether these statements have legal implications for the Socialist Republic of Viet Nam’s sovereignty over the Paracel and
Spratly Islands will require further studies in international law. However, the author would like to offer a perspective on these
statements as below.
- On May 9, 1965, in response to the the escalation of the Viet Nam War and the establishment of tactical zones in the South China Sea by the United States, the Democratic Republic of Viet Nam’s newspaper Nhân Dân (The People) stated that the Paracel Islands were under the sovereignty of China. It should be noted that, according to international law, newspapers are not
considered representatives of a State.
Whether these statements have legal implications for the Socialist Republic of Viet Nam’s sovereignty over the Paracel and
Spratly Islands will require further studies in international law. However, the author would like to offer a perspective on these
statements as below.
During the Viet Nam War (1954–1975), there were two States co-existing in Viet Nam, namely, the Democratic Republic of Viet Nam (DRVN) in the North, and the Republic of Viet Nam (RVN) in the South. The co-existence of these two States is agreed upon by many leading international laywers, such as James Crawford, Robert Jennings, Nguyễn Quốc Định, Jules Basdevant, Paul
Reuter, Louis Henkin, and Grigory Tunkin14.
Acccording to the DRVN and RVN’s understanding of the 1954 Geneva Accords, and to thede facto administration, the RVN was
the successor State to the Vietnamese titles over the Paracel and Spratly Islands. As mentioned above, the RVN had
continuously controlled, exercised administration, and affirmed sovereignty until China’s occupation of the Paracel Islands by
force in 1974, and until the Provisional Revolutionary Government of the Republic of South Viet Nam’s takeover of the Spratly
Islands in 1975. The DRVN was a third party in the dispute between the RVN and China over the Paracels, and in that between the RVN, the Philippines and China over the Spratlys.
First, given that it was the RVN, and not the DRVN, which was the successor State to the Vietnamese titles over the Paracel and Spratly Islands, the DRVN did not have the duty to defend these titles. Therefore, its conduct cannot be interpreted as acquiescence to China or the Philippines’ claims. Furthermore, as a third party, the DRVN was not in dispute or negotiation with any other State over these archipelagos. Therefore, no statement made by the DRVN can be said to have been made in the context of a dispute or negotiation over these archipelagos between it and China or the Philippines.
Second, the 1958 diplomatic note of the DRVN’s Prime Minister Phạm Văn Đồng and other DRVN’s statements on the issue did not affect RVN’s titles over the archipelagos. Any legal obligation that might arise from the DRVN’s statements could only apply to the DRVN, not to the RVN.
Third, let us consider whether the DRVN’s statements gave rise to any binding obligations for itself? The statements made by DRVN on the issue are unilateral ones. According to international law, to determine whether a unilateral statement might give rise to binding obligations, three main conditions must be considered, namely,
1. the context in which the statement was made;
2. whether the unilateral statement is explicit, and whether the party making the statement explicitly expresses the intention
that it wishes to be bound by its own statement; and
3. whether there has been detrimental reliance for the other party, i.e., damage or loss caused by that party’s reliance on the unilateral statement.
In addition, judgements by the International Court of Justice require that the unilateral statements are made continuously over a prolonged period of time for it to give rise to binding obligations15.
It is not difficult to see that the DRVN’s statements on the issue lack most of these prerequisite conditions, and therefore did not give rise to any binding obligations for the DRVN. Regarding the criterion of context, these statements were not made in the context of the DRVN and China contesting the Paracels and Spratlys with each other. Regarding the criterion of explicitness, the
only authoritative statement from the DRVN – the diplomatic note by Prime Minister Phạm Văn Đồng, did not say anything explicit about the Paracels or Spratlys. Regarding the criterion of detrimental reliance, China has not taken any actions that could be
said to be detrimental reliance on the DRVN’s statements.
As the successor State to the DRVN and the RVN (and subsequently the Provisional Revolutionary Government of the Republic of South Viet Nam) since 1976, the Socialist Republic of Viet Nam (SRVN) succeeded to both the sovereignty of the Paracel and
Spratly Islands from the RVN and the unilateral, non-binding statements from the DRVN. Since the latter is non-binding, the SRVN is free to choose to uphold the former. The re-unified Vietnamese State, therefore, has full legal basis to assert its sovereignty over the Paracel and Spratly Islands.
Hundred Viet's (Bai Yue): A legal analysis in support of Vietnam's position regarding the Paracel & Spratley Islands
Frankly, I really hope you dare to shot the first bullet together, seriously, take a try!
Reasonable men will fight with reason. The lesser man will resort to violence.
why wait until we collapsed if you are such powerful country hahaha
