Legal Basis of Vietnam's Claims
THE SPRATLYS: LEGAL BASIS OF THE CLAIM OF THE SOCIALIST REPUBLIC OF VIETNAM
ATTY. MANUEL J. LASERNA JR.
Professor of Law, Far Eastern University (FEU) Institute of Law, Manila
INTRODUCTION
This paper will limit itself to the legal basis of the claim of the Socialist Republic of Vietnam to the Spratlys. It will not discuss the legal positions of the other state-claimants. In addition, the author will discuss the geography of the Paracels and the Spratlys, the islands controlled by the individual state-claimants, recent political developments in relation to the Spratlys, and the legal position of the Republic of the Philippines. The author relied heavily on the following primary materials published by the Ministry of Foreign Affairs of Vietnam:
1. White Paper on the Hoang Sa (Paracel) and Truong Sa (Spratly) Islands. Saigon: Ministry of Foreign Affairs, Republic of Vietnam, 1975.
2. Vietnam's Sovereignty Over the Hoang Sa and Truong Sa Archipelagoes. Hanoi: Information and Press Department, Ministry of Foreign Affairs, Socialist Republic of Vietnam, 1979.
3. The Hoang Sa and Truong Sa Archipelagoes: Vietnamese Territories. Hanoi: Ministry of Foreign Affairs, Socialist Republic of Vietnam, 1981.
4. Dossier: The Hoang Sa and Truong Sa Archipelagoes (Paracels and Spratly), Part I and Part II. Hanoi: Vietnam Courier, 1981.
5. Situation of the Paracels and Spratly at the End of 1993. An unpublished listing of islands in the Paracels and the Spratlys. Manila: Embassy of the Socialist Republic of Vietnam, 1999.
GEOGRAPHY: PARACELS AND SPRATLYS
The Paracels and the Spratlys are located in the South China Sea.
The Vietnamese call the Spratlys "Truong Sa". They call the Paracels "Huong Sa". China calls the Spratlys "Nansha" and the Paracels "Xisha". The Philippines calls the Spratlys the "Kalayaan Group of Islands" (or "Freedomland").
The Spratlys is a group of small islands, reefs, shoals and cays located between 8 degrees and 11 degrees, 40 minutes North latitude. It is located 250 miles from Cam Ranh Bay, 280 miles from Pahn Thiet, and 210 kilometers from Hon Hai ( all located in Vietnam).
In relation to the other major claimants, the distances of the Spratlys are as follows:
* To Hainan Island (China) 580 miles
* To Palawan (Philippines) 310 miles
* To Taiwan 900 miles
The Spratlys contains nine (9) islands of relatively significant size:
1. Truong Sa or Spratly Island proper
2. An Bang or Amboyna Cay
3. Sinh Tonh or Sin Cowe
4. Thai Binh or Itu-Aba
5. Thi Tu
6. Loai Ta
7. Song Tu Tay or South West Cay
8. Song Tu Dong or North East Cay
The Spratlys links the Pacific Ocean and the Indian Ocean. All its islands are coral, low and small, about 5 to 6 meters above water, spread over 160,000 to 180,000 square kilometers of sea zone (or 12 times that of the Paracels), with a total land area of 10 square kilometers only. The Paracels also has a total land area of 10 square kilometers spread over a sea zone of 15,000 to 16,000 square kilometers.
Vietnamese ancient history treated both the Paracels and the Spratlys as one entity. Due to advances in the sciences of navigation and geography, such group is now divided into two as the Paracels and the Spratlys.
The ancient Vietnamese names for the Paracels and the Spratlys (as a group) are:
1. Bai Cat Vang (Golden Sandbank)
2. Hoang Sa
3. Van Ly Hoang Sa
4. Dai Truong Sa
5. Van Ly Truong Sa
THE CLAIMANTS AND THE ISLANDS UNDER THEIR CONTROL
Vietnam claims the whole of the Paracels and the Spratlys as part of its national territory.
In the Spratlys,
Vietnam controls 21 islands, reefs, shoals, and cays:
1. Da Lat (Ladd Reef)
2. Dao Truong Sa (Spratly Island)
3. Da Tay (West London Reef)
4. Da Giua (Central London Reef)
5. Da Dong (East London Reef)
6. Dao An Bang (Amboyan Reef)
7. Thuyen Chai (Barque Canada Reef)
8. Da Phan Vinh (Pearson Reef)
9. Bai Toc Tan (Alison Reef)
10. Da Nui Le (Cornwallis South Reef)
11. Da Tien Nu (Tennent Reef)
12. Da Lon (Great Discovery Reef)
13. Da Len Dao (Landsdowne Reef)
14. Da Hi Gen
15. Dao Sinh Ton (Sin Cowe Island)
16. Da Gri-san
17. Dao Nam Yet (Namyit Island)
18. Dao Son Ca (Sand Cay)
19. Da Nui Thi (Petley Reef)
20. Dao Song Tu Tay (South West Cay)
21. Da Nam (South Reef)
The
Philippines control the following islands in the Spratlys:
1. Dao Song Tu Dong (Parola or North East Cay)
2. Dao Dua (Ben Lac) (Likas or West York Island)
3. Dao Thi Tu (Pag-asa or Thitu Island)
4. Dao Binh Nguyen (Patag or Flat Island)
5. Dao Vinh Vien (Lawak or Nansham Island)
6. Dao Cong Do (Rizal or Commodore Reef)
7. Con San Ho Lan Can (Panata or Lamkian Cay)
8. Dao Loai Ta (Kota or Loaita Island)
China controls the following islands in the Spratlys:
1. Da Chu Thap (Fiery Cross Reef)
2. Da Chau Vien (Cuarteron Reef)
3. Da Gac Ma (Johnson Reef)
4. Da Hu-go (Hughes Reef)
5. Da Gaven (Gaven Reef)
6. Da Su-bi (Subi Reef)
7. Mischief Reef
Malaysia controls the following islands in the Spratlys:
1. Da Ky Van (Mariveles Reef or Terumbu Mantanani)
2. Da Kieu Ngua (Ardasier Reef or Terumbu Ubi)
3. Da Hoa Lau (Swallow Reef or Terumbu Layang)
Taiwan controls Dao Ba Binh island (Itu Aba Island or Taiping Dao Island).
VIETNAMESE LEGAL POSITION
An 1838 Vietnamese map by Phan Huy Chu entitled Dai Nam Nhat Thong Toan Do mentioned the Spratlys under the name Van Ly Truong Sa as part of Vietnamese national territory. The ancient name of Vietnam was "The Kingdom of Annam."
Other ancient maps relied on by Vietnam are the following:
1. "Toan Tap Thien Nam Tu Chi Lao Do Thu" (Route Map from the Capital to the Four Directions), 17th century, prepared by Do Ba Aka Cong Dao. It depicts the Paracels and the Spratlys as part of Quang Ngai District, Quang Nam province of Vietnam.
2. "Giap Ngo Binh Nam Do," circa 1774, prepared by Bui The Dat.
3. "Phu Bien Tap Luc," 18th century, prepared by Le Qui Don (1726-1784). It also shows the Paracels and the Spratlys as part of Quang Ngai district.
4. "Dai Nam Nhat Thong Toan Do", a Vietnamese Atlas, 1838.
5. "Dai Nam Nhat Thong Chi", 1882, a book written under the Nguyen Dynasty (1802-1945), which showed the Paracels and the Spratlys as part of Quang Nai province.
In 1852 France colonized the southern part of Vietnam, called Cochinchina.
In 1933 the Spratlys were "incorporated into the French colony of Cochinchina". France took "official possession of the islands." Three French ships, the Alerte, Astrabale, and De Lanessa, visited the Spratlys and officially declared the following islands as French territory:
1. Spratly Island
2. Amboine Caye
3. Bombay Castle Shallows
4. Fiery Cross (or Investigation)
5. Cape Pedaran
6. London Reefs
7. Itu Aba
8. Tizard Bank
9. Loaita Bank
10. Thi Thu Reef
11. North Latrang
12. North Danger
After taking possession of the Spratlys, the French Ministry of Foreign Affairs published a notice in the French Journal Official, dated July 26, 1933 (page 7837).
Notice of occupation was made by France to interested countries on July 24 to September 25, 1933. Except for Japan, "no state xxx raised any protest." Three powers "remained silent xxx: the United States (occupying the Philippines), China, and the Netherlands (then occupying Indonesia) xxx."
Japan protested the notice of occupation made by France on the ground that in the past Japanese companies had exploited phosphate on some of the islands. Vietnam claims that such exploitation was made without permission from France and that Japan had not attempted to take possession of the Spratlys in the concept of an owner.
The French Governor-General of Indochina "signed Decree No. 4762-CP, dated December 12, 1933, making the Spratlys part of the Cochinchina province of Ba-Ria" (now Phuoc Tuy province).
In 1934 France conducted a "geographic and geological study" of the Spratlys.
In 1938 the Indochina Meteorological Service set up a weather station on Itu-Aba island which remained under French control from 1938 to 1941. When World War II erupted in 1941 Japan took control of said weather station.
In 1939 the Japanese military government announced its decision to take possession of the Spratlys. France protested on April 4, 1939 when Japan announced it had placed the Spratlys "under its jurisdiction." In 1941 Japan forcibly took over the islands as part of its World War II strategy.
During the last War, France defended the Spratlys from Japanese military forces.
In the 1951 "San Francisco Peace Treaty" Japan relinquished all titles and claims to the Paracel Islands and the Spratlys Islands.
After the Japanese defeat in 1945, France "returned Cochinchina to Vietnam xxx. Thereafter, Vietnamese sovereignty over the Truong Sa Islands faced claims from other countries in the area (whose) military occupied some of the islands of the archipelago."
Vietnam claims that in 1939 the British Ministry of Foreign Affairs had declared "that France exercised full sovereignty over the Spratly Archipelago."
In 1949 Vietnam "inherited" from France all former French rights over the Paracel Islands and the Spratlys Islands.
Vietnam emphasizes "actual exercise of sovereignty over mere geographic contiguity" as a basic ground for its claim.
Rebutting the claim of the Philippines, Vietnam states in its official White Paper, thus:
x x x.
Since the United States did not act (in 1933) where a Philippine claim could have been made, this indicates that there was no ground for a challenge of French rights on behalf of the Philippines. It was only 35 years later (1968) after the French took possession of the Spratly Islands that Philippine troops, taking advantage of the war situation in the Republic of Vietnam, surreptitiously occupied some islands in the Vietnamese archipelago (Loai Ta, Thi Tu, and Song Tu Dong).
x x x.
Vietnam claims that the following four World War II basic documents on territorial settlements do not contain any clause contrary to the sovereignty of Vietnam over the Paracel Islands and the Spratly Islands, to wit:
1. 1951 San Francisco Peace Treaty
2. 1943 Cairo Declaration
3. 1945 Yalta Agreement
4. 1945 Potsdam Declaration
Vietnam also claims that the Peace Treaty between the Republic of China (Taiwan) and Japan on April 28, 1952 merely repeated the 1951 San Francisco Peace Treaty and that it did not mention any country in favor of which Japan renounced its claim during World War II.
Vietnam brands as erroneous the Philippine theory that the Spratly Islands were "res nullius" when Tomas Cloma "pretended to 'discover' the Vietnamese Truong Sa islands in 1956". Cloma named the islands "Freedomland" or "Kalayaan". It covers most of the Spratlys.
In May 1956, "after Cloma created his so-called 'Freedomland', the French charge d'affaires in Manila xxx reminded the Philippine government of the French rights resulting from the 1933 occupation."
In 1956 France completed its troops withdrawal from Indochina.
From 1956 to 1963, Vietnamese naval troops built "sovereignty steles" in the Spratlys:
1. August 1956 - cruiser Tuy Dong
(HQ-4)
2. 1961 - cruisers Dan Kiel and
Van Dan landed on Song Tu Tay (SouthWest Cay), Thi Tu, Loai Ta, An Bang.
3. 1962 - cruisers Tuy Dong and Tay Kiet landed on Truong Sa (Spratly Island proper) and Nam Ai (Nam Yit).
4. 1963 - all sovereignty steles were rebuilt by cruisers Hung Giang and Chi Lang.
Vietnam assails China for its repeated refusal to accede to France's suggestion to resolve the Paracel and Spratly issues thru the international court. On August 24, 1951 China attacked French and Philippine claims on the Spratlys which China considered as "outposts of Chinese territories."
On June 8, 1956 Taiwan sent troops to occupy Thai Binh Island (Itu Aba). It is the largest island in the Spratlys. Vietnam claims that "as late as December 1973, the Far Eastern Economic Review of Hongkong reported that a marker still stood there with the inscription: 'France - Ile Itu Aba et Dependences - 10 Aout 1933."
Vietnam claims that since 1956 it has publicly reiterated thru public announcements and press statements worldwide its sovereignty over the Spratlys. It argues that during the negotiation for the 1951 San Francisco Peace Conference, its Foreign Minister Vu Van Mau of the Republic of Vietnam reaffirmed Vietnam's rights over the Spratlys which China and the Philippines did not challenge.
It claims that on June 28, 1974 during the conference on the United Nations Law of the Sea (UNCLOS) in Caracas it reaffirmed its sovereignty over the Paracels and the Spratlys.
It reminds the Philippines that on July 13, 1971 during the Asia Pacific (ASPAC) Conference in Manila, the Republic of Vietnam, thru its Foreign Minister Tran Van Lam, "reaffirmed Vietnamese sovereignty" over the Paracels and the Spratlys.
Vietnam believes that the Spratlys issue "must be settled in accordance with international law and the Charter of the United Nations."
The most aggressive claimant in the region is China. In 1909 it seized some islands in Xisha (the Paracels). In 1946 it seized Itu Aba (in the Spratlys) and Phu Lan Island (in the Paracels). In 1950's it seized additional Hoang Sa (Paracels) islands, which it forcibly repeated in 1974. Vietnam claims that these acts were unlawful and that the United States in 1974 conspired with China for the take-over of the Paracels.
Assailing China for its allegedly ulterior goal of converting the whole of the South China Sea as a huge "communist Chinese lake", Vietnam stated in its White Paper, thus:
x x x.
The islands , islets, shoals and banks that the People's Republic of China claims as 'the outposts of Chinese territory' cover the entire South China Sea, and would virtually convert the whole sea into a communist Chinese lake.
x x x.
PHILIPPINE LEGAL POSITION
Presidential Decree No. 1596 claims title to the Kalayaan Group of Islands.
The Philippine Government registered its claim with the United Nations Secretariat on May 20, 1980, with a technical description of Kalayaan.
Kalayaan was "discovered" by Tomas Cloma, a Filipino seafarer, between 1947 to 1956, and named it Freedom Land. Cloma ceded his rights to the Philippine Government, which created a municipality out of it as part of Palawan province. Kalayaan is located 400 kilometers west of Palawan and is made up of 53 islands, reefs cays, and shoals.
The Philippines bases its claim to the Spratlys on the legal principles of "discovery" and "occupation" (exercise of sovereignty and jurisdiction). It claims that the Kalayaan was res nullius when "discovered" by Cloma.
The first ever attempt of the Philippines to claim ownership of the Spratly Islands was in 1947 when, shortly after independence in 1946, it demanded that the "New Southern Islands" which were occupied by Japan during the Second World War be given to the Philippines.
A Filipino political scientist, Prof. Estrella D. Solidum, has done an extensive study on the Spratlys issue on the occasion of the 1998 Philippine Centennial Independence Celebration, which this researcher quotes extensively, thus:
x x x.
In 1956, Filipino navigator Tomas Cloma asserted ownership over the Spratly Island Group by issuing a "Proclamation to the Whole World." Ownership was claimed based on discovery and occupation of the territory, which Cloma re-named "Freedomland," consisting of 33 islands of sand cays, sand bars, coral reefs, and fishing grounds involving an area of 64,976 square miles.
xxx In 1971, the Philippine Government sent a diplomatic note to Taipei demanding that the Chinese garrison on Itu Aba, the largest island in the group, be immediately withdrawn. The Note argued that the garrison constituted a threat to the security of the Philippines, which had a legal claim to the island through discovery and occupation, and which island group was within the archipelagic territory of the Philippines. It further argued that the garrison was not called for, because Chinese occupation (of) some of the islands represented only de facto trusteeship of said islands on behalf of the World War II allies.
In 1974, the Philippine government declared that it had garrisoned five of the islands. On 11 June 1978, President Marcos issued Presidential Decree 1596, placing most of the islands, cays, shoals, and reefs within Philippine territory and naming them collectively as the Kalayaan Island Group. Some Filipino nationals have settled there, even with a local government established in one of the islands. The Philippine has possession of seven islands. These have been integrated as a municipality of the province of Palawan. Another Presidential Decree was issued on the same date as PD 1596, PD 1599, proclaiming a 200-mile exclusive economic zone for the Philippines x x x.
The present claimants to the Spratlys are the following countries: the People's Republic of China, Republic of China (Taiwan), both claiming historic rights since the Yuan Dynasty before the 1400s; Malaysia which in 1980 claimed that is continental shelf extends as far as the Spratlys and even part of the Palawan islands; Brunei; and the Philippines whose claim to sovereignty appears on Tomas Cloma's occupation proclamation in 1956. The Philippine has claimed that the Spratlys are a case of territorium nullius, a territory over which there is no effective sovereignty and is thus open to occupation and ownership.
xxx
(A)lthough the Philippines is the latest of all active claimants, it may be the first to make an assertion of title and to take actions to support its claims for ownership and sovereignty.
The legal grounds for the Philippine claim as stated in Presidential Decree 1596 are 1) the islands are part of the continental margin of the Philippine archipelago; 2) the islands do no belong to any state and the Philippine has made effective occupation; and 3) claims by other states had lapsed because of abandonment.
x x x
Several proposals have been made for the peaceful use of the Spratlys but the particular suggestion of China for the joint development has been based on assumed acknowledgment by others of its sovereignty over the Spratlys.
x x x.
Former Ambassador Rodolfo Arizala, in a legal article, has criticized the apparent confusion or lack of coherence in the legal stance and international strategy of the Philippines in relation to its claim in the Spratlys, thus:
x x x.
Despite the existence of Presidential decree No. 1596 declaring the Kalayaan Group as part of the Philippine territory; the reservation we made at Montengo Bay, Jamaica in 1982, concerning Kalayaan Islands; and the various Executive Orders issued on the subject mentioned above[1], it appears we do not have yet a clear and consistent concept regarding the nature of our claim in the Spratlys in so far as Kalayaan Island Group is concerned. x x x.
However, if we consider now that Mischief or Panganiban Reef is part of our exclusive economic zone (EEZ), then it weakens our claim that the Kalayaan Island Group is part of our national territory because we admit that we not own said territory. For under Article 58 of the UNCLOS, the exclusive economic zone (EEZ) is considered part of the high seas and "no State may validly purport to subject any part of the high seas to its sovereignty, according to Article 87 of the same Convention. We have no absolute right to prohibit or hinder the passage of foreign vessels as well as the building of structures in the area due to "freedom of navigation" and other freedoms guaranteed in Article 87 of the UNCLOS.
x x x.
In view of all the foregoing, it appears advisable that the Philippines articulate in clear language whether it considers the Mischief or Panganiban Reef and the Kalayaan Island Group as part of its exclusive economic zone or of its territory as stated in Presidential Decree No. 1596 and the reservation No. 4 of the Declaration made by the Philippines on 10 December 1982 at Montengo Bay, Jamaica. If in the latter case, (claim of sovereignty as owner), the Philippines should show that it has legal and valid title and it exercises effective acts of sovereignty recognized by international law. x x x.
REVIEW OF PHILIPPINE RELATIONS WITH
CHINA, ASEAN, AND EUROPE ON THE SPRATLYS ISSUE
The Philippine-Chinese controversy over the Spratlys erupted during the term of Pres. Fidel V. Ramos and has continued during the present term of Pres. Joseph Ejercito Estrada.
A Filipino international relations professor, Benito Lim, has made a recent study of the effects of the Spratlys issue on Philippine-Chinese relations, which this researcher quotes extensively, thus:
x x x.
The most controversial issue between the Philippines and China during the Ramos administration centered on rival claims on the Spratlys islands west of Palawan. Purported Chinese fishermen kept coming to the islets, as installations have been already built on some of the Kalayaan island group claimed by the Philippines. This occurred even after an agreement was signed during President Ramos' state visit to the P.R.C. The agreement stated that both countries would shelve the sovereignty issue, and adhere to the ASEAN Manila Declaration enjoining all claimants in the Spratlys to settle their conflicting claims peacefully.
The P.R.C. occupation of Panganiban Reef (Mischief) in the Kalayaan Islands, discovered in early 1995, the recurrent entry of Chinese patrol boats and fishing vessels, and the attempted occupation of the Scarborough Shoal, have not only engaged the attention of the Ramos government but have led to confrontational behavior that marked Philippine-P.R.C. diplomacy over the spratlys.
x x x.
x x x.
xxx
(O)fficials from the Department of Foreign Affairs xxx have managed to convince the Chinese to sign a Code of Conduct agreement on the procedure and protocol in future actions in the Spratlys. xxx. The Code has become the current basis for resolving differences between the two countries.
x x x.
Unless all claimants give thought to an agreement or a protocol detailing more binding and realistic means of conserving and sharing these resources, the agenda of all claimants on sovereignty may harden, deterring all future negotiations.
x x x.
The Ramos administration xxx has achieved a milestone in initiating the Code of Conduct. x x x.
x x x.
Prof. Lim made a more recent inventory (1998) of the islands controlled by each of the claimants, thus:
China, Taiwan and Vietnam claim all the islands in the Spratlys. The Philippines essentially claims only the western section of the Spratlys, or the Kalayaan Island Group, an assortment of about 51 islands, islets, reef, shoals, cays, and rocks, depending whether it is high or low tide, the group is nearest to Palawan but which also contains most of the larger islands in the archipelago. Malaysia claims only three islands it presently occupies, as well as Amboyna Cay which is held by Vietnam. Brunei has staked its claim to Louisa Reef, one of the Southern Shoals of the Spratlys which is underwater. Vietnam occupies 25 islands with its main base on Spratly Island (Truong Sa). The Philippine holds eight islands with its base on Thi'tu Island (Pag-Asa). China holds eight islands. Malaysia has three and has opened Shallow Reef (Torumbu Layang-Layang). Taiwan holds Itu Aba, the largest of the islands.
x x x
The issue of ownership was raised with the P.R.C. when Senator Salvador Laurel visited China in March 1972.
x x x.
Indonesia, a non-claimant state, believes that it is possible to bring the claimant states together to resolve their conflicts peacefully and renounce the use of force to settle their claims. Indonesia has hosted several conferences to discuss the problems and find peaceful solutions. ASEAN also adopted the Manila Declaration of 1992 by which the claimants agreed to settle conflicts peacefully.
Another Filipino international relations professor, Alma Ocampo-Salvador, has conducted a study on Philippine-European relations in relation to the Spratlys issue, which this researcher quotes, thus:
x x x.
Through ASEAN, the Philippines has been engaged in political dialogue with the European Union most actively under the Ramos government. The structures available for political dialogue include the ASEAN-E.U. Ministerial Meetings where regional issues such as the Spratly islands conflict have been addressed, at one time resulting in the issuance by the E.U. of a declaration in support of a peaceful resolution of the problem. Regional issues are also discussed within the framework of the ASEAN Regional Forum where the E.U. ministers participate in the discussion of security issues along with other ASEAN dialogue partners such as the United States, Russia and China.
x x x.
x x x.
CONCLUSION
The consensus among the Asean members is to peacefully resolve the Spratlys issue within the Asean mechanism and/or multilaterally among the claimants themselves and not to internationalize the issue by involving nuclear powers which are remotely affected by the issue, such as the United States. This is a correct approach which coincides with Asian values.
There is a general agreement among the claimants to explore the concept of joint-venture type of economic development of the Spratlys. This is warranted by the current economic crisis facing the region.
Vietnam, like the Philippines, is ready to settle the issue peacefully in accordance with international law and the Charter of the United Nations. Other claimants assume the same attitude. What is needed, though, is a series of confidence-building measures among them to inspire them to sit before the negotiating table and resolve the issue amicably, with one goal in mind: regional and world stability, peace and prosperity.
Paracel and Spratly Islands Forum: Legal Basis of Vietnam's Claims
