Case Western Reserve Journal of

International Law
Volume 23 | Issue 3

1991

China's Claim of Sovereignty over Spratly and

Paracel Islands: A Historical and Legal Perspective
Teh-Kuang Chang

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Teh-Kuang Chang, China's Claim of Sovereignty over Spratly and Paracel Islands: A Historical and Legal Perspective, 23 Case W. Res. J.
Int'l L. 399 (1991)
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 China's Claim of Sovereignty Over Spratly and Paracel Islands:
A Historical and Legal Perspective

Teh-Kuang Chang*

I. INTRODUCTION

(Dn August 13, 1990, in Singapore, Premier Li Peng of the People's Re-
public of China (the PRC) reaffirmed China's sovereignty over Xisha
and Nansha Islands. 1 On December. 29, 1990, in Taipei, Foreign Minis-
ter Frederick Chien stated that the Nansha Islands are territory of the
Republic of China.2 Both statements indicated that China's claim to sov-
ereignty over the Paracel and Spratly Islands was contrary to the claims
of other nations.
Since China's claim of Spratly and Paracel Islands is challenged by
its neighboring countries, the ownership of the islands in the South China
Sea is an unsettled international dispute.3 An understanding of both

* Professor of Political Science, Ball State University.

1 Premier Li Peng told reporters in Singapore that "China is willing to cooperate with the
South East Asian countries for the development of the Nansha Islands, and to shelf the problems of
sovereignty aside temporarily." World Journal, Sept. 8, 1990, at 1. However, a Chinese military
officer who was present explained that Li Peng's proposal would not apply to the Xisha Islands,
which are under the jurisdiction of the PRC. Id. In any event, the PRC will not abandon its claim
of sovereignty over the Nansha Islands. Id. Li's statement is similar to the 1978 agreement with
Japan concerning the territorial dispute over Tiaoyutai (Senkaku in Japanese) id., which shelved the
issue of sovereignty while Japan and China agreed to cooperate for the development of the islands.
Id.
2 Chien said that the Foreign Minister of Indonesia should not make any suggestions or com-
ments about setting up a cooperative zone in the Nansha Islands. Central Daily News, Dec. 31,
1990.
Foreign Minister Chien's remark was a reaction to an announcement made by the Indonesian
Foreign Minister on December 28, 1990. The Indonesian Foreign Minister, Ali Alatas, planned to
invite the countries involved to discuss the South China Sea islands in an effort to prevent conflict in
the region. Jakata Post, Dec. 28, 1990.
3 Shao Hsun-Cheng, Chinese Islands in the South China Sea, People's China, July 1, 1956, at
25-27; Chinese Warning on South Vietnam Intrusions,Peking Review, Mar. 3, 1959, at 9; Tiny Isles
in Pacific Make Big Waves, New York Times, July 12, 1971, at 2, col. 3; China's TerritoryNansha
Islands Brooks No Violation, Peking Review, July 23, 1971, at 19; J. Cushing, The Dragon'sLong
Reach, Far Eastern Economic Rev., May 5, 1988, at 23; M. Hiebert, No, Not Another War! Far
Eastern Economic Review, May 5, 1988, at 24; R. Tacker, China and Vietnam Dispute over Spratly
Islands Association of Southeast Asian Nations, Far Eastern Economic Review, May 5, 1988, at 24;
Shim Jae Hoon, In Dispute with Vietnam over Spratly Islands, Far Eastern Economic Review, May
 CASE W. RES. J. INT'L L Vol. 23:399

China's claim, and the international reaction to it, is a necessary precur-

sor to the formulation of a peaceful solution in the region.
China discovered, and has exploited the islands in the South China
sea for over two thousand years.4 Since the Chinese settled in these is-
lands prior to any other people, China's claim of sovereignty over the
islands in the South China Sea islands predates that of other nations.5
The Chinese government set up administration 6 over, and divided islands
in the South China sea into four groups: Dongsha (East Sand) Archipel-
ago, Zhongsha (Central Sand) Archipelago, Nansha (South Sand) Archi-
pelago, and Xisha (West Sand) Archipelago. 7 China's sovereignty over
the Dongsha Islands and the Zhongsha Islands has never been
questioned.
China's sovereignty over the Xisha Islands and the Nansha Islands,
which were called "Spratly" ' Islands and "Paracel Islands" respectively,
was challenged by France before World War II and by the Philippines
and Vietnam after World War II.
France claimed sovereignty over the Spratly and Paracel Islands in

5, 1988, at 25. China and Vietnam, YourBit of Coral,orMine, The Economist, Mar. 19, 1988, at 38.
Cushing, Beached Again on Shoals, Far Eastern Economic Review, Mar. 17, 1988, at 23.
On December 23, 1990, the Central Daily News reported that Communist China expanded to
the Southern China Sea islands in an effort to strengthen its claim of sovereignty. The PRC is
currently completing an air base on Yung-hsing Island (Woody Island). Vietnam has occupied
twenty-four islands. Malaysia has occupied three islands. The Republic of China claimed owner-
ship of all islands in the South China Sea, even though it only occupies two larger islands. Central
Daily News, Dec. 23, 1990, at 1.
4 Starting in 1ll B.C. under Emperor Wu Di of the Han Dynasty. S. Yeh, Nansha Feng Yun
Yo Kuo-Chi Kung-Fa (Nansha Situation and International Law), 19 EcON. & L. 27 (1988).
5 Starting in 1405, Emperor Cheng Zu of the Ming Dynasty sent the special envoy, Cheng Ho,
to exploit the islands in the South China Sea and to include them on the map as Chinese territory.
Id.
6 On December 1, 1947, the Ministry of the Interior of the Republic of China announced the
new names of the four Archipelagos in the South China Sea, and they were listed under the adminis-
trative jurisdiction of the Hainan Special Administrative District of the Kwantung (Guangdong)
Province of China. United Daily News, Feb. 25, 1974.
7 The Republic of China and the PRC use the same Chinese characters to name the islands in
the South China Sea. However, when Chinese names are translated into English, the PRC uses the
Ping-Ying system, but the Republic of China uses the Wade system. The respective names of the
groups of islands are as follows:
By Meaning Ping-Ying Wade System
East Sand Dongsha Tungsha
Central Sand Zhongsha Chungsha
South Sand Nansha Nansha
West Sand Xisha Hsisha
The Chinese names in this article will use the respective source's citation.
s The islands are named "Spratly" after the British Captain Spratly who mapped them in the
1880s.
 CHINA'S CLAIM OF SOVEREIGNTY

the 1930s. The Japanese occupied all four groups of islands during
World War II, and returned them, along with other territories, to China
after World War II. In both the San Francisco Peace Treaty of 1951 and
the Sino-Japanese Peace Treaty of 1952, Japan renounced its claim over
the Spratly and Paracel Islands.9 The representatives of the Republic of
Vietnam declared its sovereignty over the Spratly Islands and the Paracel
Islands in the San Francisco Peace Conference of 1951; China was not
invited to participate.' 0 Both Taiwan and the PRC, however, repeatedly
refuted the claims by all other countries for these islands.
In summary, disputing parties are the Republic of Vietnam (before
1975), 11 the Democratic Republic of Vietnam (after 1975),12 the Philip-
pines, Malaysia, the PRC, and the Republic of China. From 1973 to
1988, armed conflicts occurred between Vietnam (as invader) and China
(as defender). Both Chinas (either Republic of China or PRC) main-
tained claims that the four groups of islands in South China are solely
Chinese territory. They base such claims on traditional concepts of sov-
ereignty, independence and territorial integrity. The Vietnamese invaded
the Paracel and Spratly Islands, and the Philippines and Malaysia occu-
pied some of the Spratly Islands. 3
This article will analyze the development of China's claim of sover-
eignty over these islands. These claims will be contrasted with the claims
of other nations in search of a peaceful settlement, which would prevent
international political conflicts. Prior to the historical and legal analysis,

9 After the September 8, 1951, signing of the San Francisco Peace Treaty, a bilateral treaty was
signed between the Republic of China and Japan on April 28, 1952, which provided in Article 2:
It is recognized that under Article 2 of the Treaty of Peace with Japan signed at the city of
San Francisco in the United States of America on September 8, 1951, Japan has renounced
all right, title and claim to Taiwan (Formosa) and Penghu (the Pescadores) as well as the
Spratly Islands and the Paracel Islands.
San Francisco Peace Treaty, April 28, 1952, Republic of China-Japan, 138 U.N.T.S. 38. The treaty
came into force on August 5, 1952. During the negotiation of the territorial Article, the Japanese
delegates insisted that the Article should include only those areas relating to the Republic of China.
The Chinese delegates then explained that the Paracel and Spratly Islands were Chinese territory
and should therefore be included in Article 2. See Peace Treaty Between the Republic of China and
Japan, April 28, 1952, Treaties Between the Republic of China and Foreign States (1927-58). Minis-
try of Foreign Affairs 248, 249 (1958). See Record ofProceedings, Conference for the Conclusion and
Signature of the Treaty of Peace with Japan, San Francisco, California, September 4-8, 1951 (Wash-
ington, D.C.: Government Printing Office 1951) at 263.
10 The Sovereignty of the Republic of Vietnam Over the SpratlyIslands Feb. 5, 1974 [hereinafter
FACT SHEET].
11 South Vietnam became the Republic of Vietnam in 1954 when it separated from French
colonial rule, until its collapse after U.S. withdrawal in 1975.
12 After the unification of North Vietnam and South Vietnam in 1975, the name of Vietnam
became the Democratic Republic of Vietnam.
13 H. Chen, An-Chao Hsiung Yung TiNanshaHsing-Shih (The Rise of Storm over the Nansha
Solution), Central Daily News, Nov. 16, 1988, at 1.
 CASE W. RES. J. INT'L LV Vol. 23:399

there will be a geographical discussion of the islands in the South China

Sea.

II. GEOGRAPHIC DESCRIPTION

The Islands in the South China Sea are surrounded by the coastal
states: China, both the PRC on the mainland and the Republic of China
on Taiwan, Vietnam, Philippines, Malaysia, Brunei and Indonesia.
There are over one hundred fifty islets in the South China Sea, which are
divided by the Chinese government into four groups for administrative
purposes. The Nansha (Spratly) Islands, lie 115" E. and 10" N. Taiping
is the largest. The Xisha Islands (Paracels, 112" E., 160 N.); the Zhong-
sha Islands (115 E. and between 15" and 160 N.); and the Dongsha Is-
lands (117* E., 21" N.). 14 The Dongsha archipelago is in the North, near
Guangdong Province of China. The Xisha archipelago is near Hainan of
China and Vietnam. The Nansha archipelago is near the Philippines
and Borneo, but far from Vietnam. The Zhongsha archipelago is be-
tween the three groups at the middle location. All of the islands in these
archipelagos are of different sizes, ranging from regular ellipses of is-
lands, reefs, rocks, banks, and shoals. The largest of the Spratly Islands
is Itu Aba Island on which the troops of the Republic of China have been
stationed since 1946. The Chinese renamed Itu Aba Islands as Taiping
Islands to memorialize the warship which landed there in November,
1946. Also, on this island, China set up a Meteorological Station, at the
request of the U.N. International Civil Aviation Organization, to supply
weather information."i The disputed Paracel Islands are in the Xisha
Archipelago; the Spratly Islands are in the Nansha Archipelago.
The products of these Islands are mainly turtles, crab meat, bird
nests and guano. Recently, the U.N. Economic Commission in Asia re-
ported on the possibility of potential petroleum deposits around the
Spratly and Paracel Islands. These potential deposits have raised inter-
national interest and have attracted other countries to claim their
sovereignty.16

14 Shao Hsun-Cheng, supra note 3, at 25-27.

Is On October 27, 1955, the International Civil Aviation Organization held a conference in
Manila, with representatives of sixteen countries, including: the Republic of China, the Philippines,
the Republic of Vietnam, Japan, the United States of America, the United Kingdom, France, Can-
ada, Australia, New Zealand, and Thailand. The Conference adopted Resolution #24, asking "the
Republic of China to supply four times daily, the weather report and forecast for the Nansha Is-
lands." The conference was chaired by the Philippine representative, J.P. Bareron. See The Memo
on the FourArchipelagos of the Republic of China in the South China Sea, United Daily News, Feb.
25, 1974.
16 S. Yeh, supra note 4, at 27-28.
 CHINA'S CLAIM OF SOVEREIGNTY

III. HISTORICAL ANALYSIS OF THE DEVELOPMENT OF CHINA'S

CLAIM OF SOVEREIGNTY ON XjISHA AD NANSHA ISLANDS
Disputes over sovereignty in the archipelagos are settled according
to the Palmas case under international law. Palmas held: "[It is quite
natural that the establishment of sovereignty may be the outcome of a
slow evolution, of a progressive intensification of State control."' 7 China
tried to establish the legal claim of sovereignty over the Xisha and Nan-
sha Islands based on the historical record.
According to the Chinese history books, China discovered the is-
lands in the South China Sea as early as the second century B.C.; ex-
ploitation and development followed and finally the islands were put
under the administrative jurisdiction of the Chinese Government as Chi-
nese Territory. China began to send naval ships to the South China Sea
during the sixth year of Yuan-Den, (111 B.C.) under the reign of Em-
peror Wu Di of the Han Dynasty. Admiral 8
Yang Pu led 100,000 sailors
to the islands of the South China Sea.'
In the Three Kingdoms Period (220-265), the books Nansho Yi Wu
Zhi (Strange Things of the Southern Provinces) by Zhen and Fu Nan
Zhuan (An Account of Fu Nan) by Kang Tai described the geographical
features of these Islands after they visited in the South China Sea." Chi-
nese voyages to the Xisha and Nansha Islands, and the activities during
more than a thousand years, are recorded as follows:
The location and distribution of these islands are recorded in Meng
Liang Lu (Record of a Day-Dreamer) of the Song dynasty, Dao Yi Zhi
Lu (Brief Account of the Islands) of the Yuan dynasty, Dong Xi Yang
Kao (Studies on the Oceans East and West) and Shun Feng Xiang
Song (Fair Winds for Escort) of the Ming dynasty, Zhi Nan Zheng Fa
(Compass Directions) and Hai Guo Wen Jian Lu (Records of Things
Seen and Heard About the Coastal Regions) of the Qing dynasty and
Geng Lu Bu (Manuals of Sea Routes) of fishermen of various
generations.2 0
In these books, the Xisha and Nansha islands were variously named
Juirulouzhou (Nine Isles of Cowry), Shitang (rocky reefs), Qianlishitang
(thousand li rocky reefs), Wanlichangtang (ten-thousand li rocky reefs),
Qianlichangsha (thousand li sand cays) and Wanlichangsha (ten thou-
sand li sand cays).

17 The Island of Palmas (or Miangas), reprintedin 22 AM. J. INT'L L. 867, 908 (1928) [herein-
after Island of Palmas].
18 S.Yeh, supra note 4, at 27.
19 China'sIndisputable Sovereignty over the Xisha and Nansha Islands. DOCUMENT OF THE
MINISTRY OF FOREIGN AFFAIRS OF THE PEOPLE'S REPUBLIC OF CHINA 3 (1980) [hereinafter Doc-
UMENT OF THE MINISTRY].
2 Id at 7.
 CASE W. RES. J. IN7'L LV Vol. 23:399

The Chinese have lived on the Xisha and Nansha islands since the
Tang and Song dynasties, as evidenced by recent discoveries at the Xisha
Islands of "ruins of living quarters, pottery and porcelain utensils, iron
knives, iron cooking pots and other articles of daily use belonging to the
Tang and Song dynasties." 2 1 The Chinese Government has exercised ju-
risdiction over Xisha and Nansha since the ninth century, along with the
exploitation and development of the islands. During the Song Dynasty
(900-1127 A.D.), Chinese Naval Patrols reached the Xisha Islands. The
Wu Jing Zong Yao (Outline of Military Affairs) recorded that the North-
ern Song Court "ordered patrols by imperial forces and the building of
barracks for naval patrols" in Guangnan (which is now Guangdong),
"commissioning the building of keeled sea-faring warships" which "sail-
ing in the southwestern directions from Tunmenshan, with a fair east
wind, can reach Jiuruluozhou in seven days."' Jiuruluozhou was the
name for today's Xisha Islands and the dispatch of naval warships to
patrol its territories indicated that the Northern Song Court had already
put the Xisha Islands under its jurisdiction.
In 1279, during the Yuan Dynasty, the Kublai Khan, Emperor Shi
Zu assigned Guo Shoujing, famous astronomer and Deputy Director of
the Astronomical Bureau, to do the observations in the South China Sea.
According to the official History of the Yuan Dynasty, Nanhai, Guo's
observation point, was today's Xisha Islands. Thus, the Xisha Islands
were within the bounds of China at the time of the Yuan Dynasty.2 3 In
1405, during the Ming Dynasty, Emperor Cheng Zu sent Eunuch Cheng
Ho, as special envoy, to command 27,800 naval officers and men, with
sixty-two warships for a voyage of exploration of the South China Sea,
and extended the voyages to Java, Sumatra, Ceylon and Africa. He re-
turned to China in 1407.
Afterwards, Chen Ho was again sent to the South Seas for a total of
seven trips during the twenty-eight years, and visited thirty countries.2 4
In every trip, the Chinese Navy passed through the Nansha islands. His
three interpreters each wrote a book about the Nansha Islands. Thus,
some islands in Nansha were named in memory of these exploratory mis-
sions, such as Tizard Bank and Reefs, Flat Island, Nanshan Island,
Loaita Bank and Reefs, Lankiam Cay, London Reefs, and Sin Cowo
Island.2 5
During the Ming and Qing dynasties, the Xisha and Nansha Islands
were under the Administration of Wanzhou of Qiongzhou Prefecture
21 Id at4.
22 Id. at 5.
23 Id.
24 S. Yeh, supra note 4, at 27.
25 The Names of the Islands of Nanshaof the FourGroups ofArchipelago. United Daily News,

Feb. 25, 1974.

 CHINA'S CLAIM OF SOVEREIGN7Y

(now Wanning and Lingshu counties, Hainan Island) then Guangdong

Province.2 6 During the reign of Kangxi, (1719-21), of the Qing dynasty,
Wu Sheng, Vice-Admiral of the Guangdong Fleet, led a naval patrol and
personally went on an inspection tour setting out for Qiongya, rounding
Tonggu and passing through Qizhouyang and Sigengsha, covering 3,000
Li.2 7 The Qizhouyang (Sea of Seven Islands) refers to the sea around the
Xisha Islands.2"
Guo Songtao, the Chinese Minister of the Qing Dynasty to Britain,
in his book Shi Xi Ji Cheng (Travel Notes of an Envoy to the West),
recorded his voyage to his post in 1876 by noting that, on his voyage
through the South China Sea, "nearby to the left were the Paracel Is-
lands (the Xisha Islands) which yielded sea slugs, and also coral, which
was not of very good quality. These islands belong to China."2 9
In the nineteenth century, China's sovereignty over the Xisha and
Nansha Islands was recognized by Europe. In 1883, during the reign of
Guang Xu, Germany conducted surveys on the Xisha and Nansha Is-
30
lands but stopped after protest by the Qing Government.
Besides the books of history, many official maps also provided evi-
dence that the Xisha and Nansha Islands have been China's territories:
Huang Qing Zhi Sheng Fen Tu (Map of the Provinces Directly under the
Imperial Qing Authority) made in the fifteenth year of Emperor Qi-
anlong (1775), Da Qing Wan Nian Yi Tong Di Li Quan Tu (Map of the
Eternally United Great Qing Empire) made in the twentieth year of Em-
peror Jiaqing (1810), and Da Qing Yi Tong Tian Xia Quan Tu (Map of
the Unified Territory of the Great Zing Empire) made in the twenty-
second year of Emperor Jiaqing (1817).31
In 1909, during the reign of the last Emperor Xuantong, Zhang
Renjun, Governor of Guangdong and Guanxi, Li Zhun, Admiral of the
Guangdong Fleet, accompanied more than 170 naval officers and men on
an inspection tour of the Xisha Islands in three warships, the Fubo, the
Guangin and Shenhang. They inspected fifteen islands and set up stone
tablets engraved with the names of the islands, 32 hoisted the flag and
fired a salute on Yung-Hsing Island as reassertion of Chinese
sovereignty.
In 1911, the Chinese Guangdong Province Government announced
that the Xisha Islands would be put under the administration of Yaxian
county, Hainan Island. In 1921, the Ministry of Interior of the Republic
26 DOCUMENT OF THE MINISTRY, supra note 19, at 6.
27 Id.
28 Id.
29 Guo Songtao, Shi Xi Ji Cheng. Id
30 Id at 7.
31 Id
32 Id
406 CASE W RES. J. INT'L L3 Vol. 23:399

of China approved a license for He Ruinian, a merchant of Guangdong

Province, for fishing, plantation operation, and mining on the Xisha Is-
lands. In 1927, when he was found to have transferred the license to
Japanese merchants, the license was revoked by the Chinese government.
British and French books recorded the Chinese living on Nansha
Island. The 1923 British publication China Sea Pilot, in Volume III,
reported that Chinese fishermen from Hainan were making a living on
the Nansha Islands and added further that the communication between
Hainan and the Nansha Islands had been maintained by boats for the
exchange of goods, such as rice, from Hainan, traded for fishermen's
catches on these islands. Volume I also reported: "Tizard Bank...
Fishermen from Hainan usually visit the islands annually in December
and January, 33
and leave again at the commencement of the southwest
monsoon."
In 1927, National Sun Yat-Sen University sent a study group to visit
Xisha Islands by warship and investigate the island's geography. A 1933
French publication, Le Monde ColonialeIllurts Vinielle: Les lots desmers
de Chine, recorded that:
in the islands, only Chinese (Hainan natives) lived there. At that time,
there were residents on Southwest Island. There were residents living
on Thi-Tu Island, two of whom were children. There were residents
living on Spratly Island. On the Lowan Island there remains a Chinese
shrine, huts, and a well. On the Itu Aba Island, although nobody is
visible, a Chinese tablet is discovered with the inscription that a ship-
ment of food was made to this island: Since nobody is here, the food is
left underneath the metal sheet. On other islands,
34 the remains of the
fisherman's living quarters were everywhere.
The above recorded South-West Island is S.W. Cay. Thi-Tu Island is the
Chung-Yeh Island. Spratly is Nanwei Island. The French record, pro-
vides that the Chinese have lived in Nansha Islands for a long time.35
The French occupation of the nine islands of Nansha in 1930 and
1932, was protested by the Chinese Government. Among these nine is-
lands, three were in the Xisha Islands and six were in the Nansha Is-
lands. The Japanese took over all these Islands from France in 1939, and
maintained control until the Japanese surrender in 1945. In 1946, the
Republic of China took back the Nansha Islands and Xisha Islands held
during the Japanese occupation.36
On December 12, 1946, the Chinese government sent thirteen offi-

33 CHINA SEA PILOTS 124 (1923) (reprinted in, MwNISmY OF FOREIGN AFFAIRS, REPUBLIC
OF CHINA, THE NOTES ON INTERNATIONAL CONFLICTS RELATED TO NANSHA ISLANDS 20
(1990)).
34 Le Monde, Colonial Illurts Vimielle: Les flots desmers de chine (1933).
35 United Daily News, Feb. 25, 1974.
36 Id.
1991] CHINA'S CLAIM OF SOVEREIGNTY

cials, representing the Ministry of Interior, Ministry of National Defense,

Chinese Navy Headquarters, and the Provincial Government of Kwang-
tung (Guangdong) with four warships, namely Taiping, Yung-Hsing,
Chun-Jian, Chung-Yeh to take over the islands of Nansha.3 7 In 1946,
the Administration of Nansha Islands was set under the Kwangtung
(Guangdong) Province. When the Hainan Special Administration Dis-
trict was established on April 1, 1946, the Administration of Nansha Is-
lands was placed under its jurisdiction.
In April 1947, the Chinese government sent Professor Wang Kuang,
as the representative of Kwangtung (Guangdong) Government Compila-
tion Committee on the Book on Xisha and Nansha, via warships to in-
spect Xisha, Nansha, and Zhongsha Islands. Professor Wang discovered
underneath the coral reefs of Rockey Island, coins from the Kai-Yuan
Reign of Emperor Suan Zhong of the Tang Dynasty (713-742 A.D.), the
Hung-Wu Reign of Emperor Cheng Zu of the Ming Dynasty (1368-1390
A.D.), and the Yong-Lo Reign of Emperor Cheng Zu of the Ming Dy-
nasty (1403-1425 A.D.). Professor Wang's collection from the Xisha Is-
lands was publicly exhibited on June 11, 1947, in Canton.38
On December 11, 1947, the Ministry of Interior of the Republic of
China announced to the world, the formal names of the islands, reefs,
and banks of the four archipelagos of Dongsha, Xisha, Zhongsha and
Nansha. At that time, no country presented any objection.3 9 On June 2,
1956, the Nationalist Chinese sent warships to inspect the Nansha Is-
lands, and on June 5, arriving at the Taiping Island, (Spratly or Storm
Islands), set up a stone tablet and hoisted a flag as symbols of the recov-
ery of the Islands. On June 10, they went to inspect the West York
Island.'
Again from October 6, to October 27, 1963, the Ministry of Na-
tional Defense, the Ministry of Interior, and the Headquarters of Chinese
Navy jointly sent delegates to inspect the Nansha Islands, including the
Itu Aba Island, Thi-Tu Island, and Spratly Island to comfort the Chinese
soldiers and Meteorological personnel who were stationed there. Work-
ers were sent by the Veterans Commission to set up the stone tablets on
Thi-Tu and other islands, and pictures were taken as evidence. After-
wards, the Chinese Navy frequently sent warships to inspect the Nansha
Islands. The Chinese troops were permanently stationed as garrison on
Taiping Island (Itu Aba Island). From there they could dispatch patrols
to the neighboring islands as defense against foreign invasion.

37 Id.
38 Id.
39 The HistoricalRecord of China's Exploration and Administration of the Islands in South
China Sea, United Daily News, Feb. 25, 1974.
4 Id.
 CASE W. RES J INY'L LV Vol. 23:399

On the other hand, the PRC, which was established on October 1,

1949, also claimed jurisdiction over these islands.4g This indicates that
China's sovereignty over Xisha and Nansha has never been interrupted
by any Chinese government. After 1950, the PRC's Hainan Administra-
tive Area of Guangdong Province set up a meteorological station and
exercised control over fisherman on the Xisha Islands.
In March 1959, the Hainan Administration Area established on
Yongxing Island of the Xisha Islands an "Office of Xisha, Nansha and
Zhongha Islands," which in March 1969, was renamed the "Revolution-
ary Committee of the Xisha, Zhongsha and Nansha Islands of
Guangdong Province," keeping with the changes of the political system
during the Cultural Revolution of the PRC.42 Based on the traditional
concept of national defense of its territory, the PRC took military action
in 1974 to oust the invaders of the Republic of Vietnam from the islands
of Xisha. In January 1988, the PRC for the first time sent troops to the
islands of Nansha. In February 1988, it built a ferry and a helicopter
airport on Yung-Shu Island (Fiery Cross or N.W. Investigator Reef).
Based on the UNESCO plan and support, the PRC built a Maritime
Observation Station on the Island.4 3 On March 14, 1988, the PRC
fought against an invasion of the Xisha and Nansha Islands by the Dem-
ocratic Republic of Vietnam.'
The above historical facts provide recorded evidence of the Chinese
discovery, development and administration on the Xisha and Nansha Is-
lands. Chinese jurisdiction over the islands has been consistent. Thus,
China's claim of sovereignty over the Xisha and Nansha Islands is there-
fore based on the historical record of occupation. However, the histori-
cal record of China's claim of sovereignty over the islands was challenged
by neighboring states. To determine whether the Chinese claim of sover-
eignty based on its historical occupation is valid, it is necessary to review
whether the Chinese claim meets the criteria of the international law of
State sovereignty.

IV. THE LEGAL OBSERVATION OF CHINA'S CLAIM OF SOVEREIGNTY

OVER THE XISHA AND NANSHA ISLANDS

The legal basis of China's claim of sovereignty over the Xisha and
Nansha archipelagos is illustrated from Chinese record of words and
deeds as would be consistent with international legal principles. China's
claim of sovereignty over the South China Sea Islands began in the seven-

41 DOCUMENT OF THE MINISTRY, supra note 19.

42 Memorandum of the Ministry of Foreign Affairs of the People's Republic of China on the
Question of Xisha and Nansha Islands, May 12, 1988 [hereinafter Memorandum].
43 Chen, supra note 13.
44Id.
1991] CHINA'S CLAIM OF SOVEREIGNTY

teenth century, prior to Hugo Grotius' formulation of international

law.4 5 Afterwards, with the development of international law, certain
standards were established for claiming state sovereignty over territories.
In determining whether China's claim of sovereignty over the islands of
Nansha and Xisha based on historical facts is legally valid, it is necessary
to consider international rules.
According to international law, methods of acquiring state territory
include discovery, occupation, prescription and conquest.' China's
claim of sovereignty over the Islands in the South China Sea is based
upon discovery and occupation.

1. Acquisition by Discovery
China discovered the Nansha and Xisha Islands over 2,100 years
ago, during the Han Dynasty.4 7 The discoverers, Admiral Yang Pu and
his subordinates, were sent by the Emperor of the Han Dynasty. Ac-
cording to international law and custom at the time, "[he] who discovers
the territory, holds its sovereignty." 4 8 Since China discovered the Nan-
sha and Xisha Islands, China holds the sovereignty over these islands.
Before the eighteenth century, discovery and symbolic occupation
were enough for a claim of sovereignty, and China's claim of sovereignty
over Nansha and Xisha Islands would have been sufficient to be recog-
nized as valid. However, since the eighteenth century, claims of sover-
eignty by discovery need to be followed by effective occupation and acts
of authority.

2. Acquisition Based on Occupation

China's discovery of Nansha and Xisha Islands not only gives it an
in choate title as discoverer, but also it has continuous effective occupa-
tion by the Chinese government's exercise of jurisdiction after discovery.
The well-known Eastern Greenland Case before the Permanent Court of
International Justice and the arbitration of PalmasIsland by Max Hu-
ber, 4 9 stressed the animus occupandi, effectiveness, and the existence, of

45 See generally, Jones, The InternationalLaw ofMaritimeBlockade:,A Measure ofNaval Eco-

nomic Interdiction, 26 How. L. J.759, 759 (1983) (Hugo Grotius is considered to be one of the
founders of international law and is the author of the well known book, De Jure Belli Ac Paci, (Law
of Peaceand War), published in 1625).
46 L. OPPENHEIM, INTERNATIONAL LAW 209-12 (H. Lanterpacht ed. 1937).
47 Shu-Liang yeh, supra note 4.
48 Cf INTERNATIONAL LAW IN AUSTRALIA 344-45 (D.P. O'Connell ed. 1965).
49 MANUAL OF PUBLIC INTERNATIONAL LAW, 321-23 (M. Sorensen ed. 1968) (citing Eastern
Greenland Case (1933) (PCIJ ser. A/B No. 53) and Palmas Island Case) [hereinafter Sorensen]. In
the Palmas Island case, Judge Huber clearly stated the rationale of this rule. The new land accrues
to a "portion of territory where there exists an actual sovereignty capable of extending to a spot
which fall within its sphere of activity." Id. at 928. 2 INT. ARB.AwARDs 289, 839, 846.
 CASE W. RES. J INTL L Vol. 23:399

claims to sovereignty over the territory. These cases provide that the
acquisition of territory not only should be according the international
law in existence at that time, but also that continuing sovereignty should
be consistent with the international law which is developed later.
According to international law, the acquisition of territory by means
of peaceful occupation must meet two conditions: (1) the occupied terri-
tory belongs to no one and is therefore terra nullius; (2) the territory is
occupied in a visible and effective manner, although this does not neces-
sarily mean that the whole territory need be occupied. 0 The effective-
ness of the occupation is determined by taking possession of and
establishing an administration over territory in the name of, and for, the
occupying State.5 1
Since Admiral Cheng Ho's first trip to the South China Sea in 1405,
China has maintained continuous sovereignty over the Nansha Islands.
Cheng Ho was sent as a special envoy of Emperor Cheng Zu of Ming
Dynasty. He represented that China included the Nansha Islands in his
Cheng Ho Maritime Map and he formally named the Nansha Islands
"Wanlishitang" (Ten Thousand Li Rocky Reefs). Cheng Ho's conduct
constitutes official behavior on the part of the State of China. Nansha
has been included on the Chinese claim of sovereignty over the Nansha
and Xisha Islands since then, and China has perfectly met the theory and
practice of traditional and contemporary international law.
The international legal issue remains whether China's acquisition
may meet the standard set forth by Max Huber at that time, namely,
whether China's claim will remain valid at current international law. In
other words, has China exercised "continuous and peaceful occupation
of state authority" after discovery?
The following evidence demonstrates that China's claim of sover-
eignty over Nansha and Xisha Islands is based upon effective
sovereignty.
1. For several hundred years, Chinese from Hainan regularly
went to make a living on Nansha and Xisha Islands and settled there
to build houses, temples and tombs for those who died there. The re-
cent discoveries of coins, door frames, and Chinaware have established
the evidence of Chinese settlers in those islands.
2. During the eighteenth and the nineteenth centuries, the Qing
Dynasty continuously published six maps, all of which include the

50 See, Minquiers and Ecrehos Case, (Fr. v. U.K.), 1953 I.C.J. 47, in I.C.J. OPINION BRIEFS 8-
1 (1971). Judge Basdevant emphasized in his separate opinion that the exercise of effective military
control did not necessarily mean garrisoning practically uninhabited or uninhabitable places, but
that, for this purpose, meant the power to hold such areas at will and to prevent other states from
occupying them was sufficient. (1953) I.C.J. Rep. 78. See also L. GROSS. INTERNATIONAL LAW IN
THE TWENTIETH CENTURY 293-95 (1969).
51 GROSS, supra note 50, at 293-95.
 CHINA'S CLAIM OF SOVEREIGNTY

name of the Nansha Islands, such as the Da Qing Wa Xih Jian Quan
Tu (China and Foreign World Map of the Great Qing Empire), Qing-
zhih Xen Feng Tu (Qing Dynasty Provincial Map) (1724), HuangQing
Zhih Xen Feng Tu (Royal Qing Dynasty Province Map) (1755), Da
Qing Yi Tong Tian Xia Quan Tu (Map of the Unified Territory of the
Great Qing Empire) (1767), Qing Kuei Fu, Zhou Hsian, Dian General
map (1800), and a new edition of the Da Qing United Territory of the
Great Qing Empire52 (1817). All included Nansha Island by the name
"Wanlishitang."
3. In 1883, when Germany tried to make a survey of Nansha Is-
land, the Qing government dynasty protested. Germany respected
Chinese sovereignty and agreed to stop the surveys.
4. In 1909, the Qing Dynasty sent Admiral Li Zhun to lead the
Chinese navy to inspect the islands of Xisha and Nansha, and to
rename of the islands and reefs.53
5. While China faced Japanese aggression in 1930, the French, as
the colonial power in Vietnam, occupied some islands of the Parcel
and the Spratly, in reliance upon the argument that those islands were
Vietnamese historical territories.
The Chinese government made a strong protest on September 29,
1932, alleging the falsity of the French claim. In support of this protest,
China cited the 1887 Sino-French convention on the boundary line be-
tween China and Vietnam. Article 3 of this Convention specified that:
as for the islands in the sea, those to the east of the southward red the
hill at the east tip of Tra-co (Wanzhu in Chinese, which is to the south
of Mong Cai and southwest of Zhushan), belong to China, and those to
its west, Jiutoushan Islands (Co54 To Illsand in Vietnamese) and the
other islands belong to Annam.
The Xisha Islands are far to the east, and the Nansha Islands are
farther east. Thus, the French were unable to rebut the Chinese legal
position.
On July 25, 1933, France, in its Government Bulletin, announced
the occupation of nine of the Nansha Islands, but the French recognized
the following facts:

52 Memorandum, supra note 42.

53 THE MINISTRY OF FOREIGN AFFAIRS OF THE REPUBLIC OF CHINA, The Basis of China's
Claim of Sovereignty Over Hsisha and Nansha Islands, in THE NOTES ON THE INTERNATIONAL
CONFLICTS RELATED TO THE NANSHU ISLANDS 10 (1990). See also Wang Tsai-Hung, The Fea-
tures ofIslands in the South ChinaSea, People's Daily, Sept. 6, 1990, in which described his visit to
the islands. He mentioned that Yung-Hsing is the main island of the Xisha Islands and Taiping is
the main island of Nansha Islands. He also reported that a stone monument was found, carved with
an inscription dated November 24, 1946, and built by the Republic of China. This provided an
evidence to conform China's sovereignty over these two groups of islands.
54 Journal Officiel de la Repuibliquefrancaise, vol. 65, no. 1752, Jan. 25, 1933, at 7794.
 CASE W. RES. J INT'L L Vol. 23:399

(a) There are Chinese people from Hainan living on the Nansha Is-
lands who fish for their living.
(b) At that time, there were Chinese living on the Islands.
(c) On the Islands, there were houses made of leaves, and there were
statues of God and photos of the deceased for worship.
(d) Every year, the Chinese on Hainan carried food by sailboat to the
Chinese living on the Nansha Islands.55
Using this account of France's description of the Nansha Islands as
evidence, the Chinese Ministry of Foreign Affairs, on August 4, 1933,
protested the French occupation.
Based on international law and international custom, the Chinese
Ministry of Foreign Affairs concluded that upon the new discovery of
islands, sovereignty will belong to that country whose people reside
there. All people currently living on the Nansha Islands are Chinese;
thus, the Nansha Islands clearly belong to China.
Since France was unable to present any argument at the time, it did
not debate the issue with China. After World War II, the French gov-
ernment never again contested the matter.
6. In 1939, Japan occupied Hainan, as well as the Xisha and Nan-
sha Islands, as an extension of aggression against China rather than
considering these islands as belong to Vietnam, which was invaded by
Japan in late 1941.
7. In November of 1946, the Chinese Government sent represent-
atives with warships to take over the Islands of Nansha and Xisha
after the Japanese surrender. Also, the Chinese Government set up an
Administration to exercise jurisdiction over the archipelagos of Xisha
and Nansha under the Kwantung (Guangdong) Province, and later the
Hainan Administrative District.
8. In the 1951 San Francisco Peace Treaty as well as the 1952
Sino-Japanese Peace Treaty, Japan renounced all rights, titles, as well
as claims in Taiwan (Formosa), Penghu (The Pescadores), and the
Spratly and Paracel islands. China took back the Spratly Islands, the
Paracel Islands, along with Taiwan and the Penghu Islands as a recov-
ery of the original territory for the original owner rather than as a new
owner taking the territories as terra nullius.5 6
In reaction to the occupation of some of the Paracels and Spratly
Islands by Vietnam and the Philippines, the Ministry of Foreign Affairs
of the Republic of China made a series of protests on January 25, August
9, August 27 and December 26, 1973, and on January 18, 1984, and
reaffirmed its sovereignty over the Nansha and Xisha Islands.
The above mentioned reasons provide evidence that China has exer-

55 Id.
56 Statement by Ministry of Foreign Affairs, Jan. 18, 1974 (Press Release of the Republic of
China).
1991] CHINA'S CLAIM OF SOVEREIGNTY 413

cised continuous and peaceful occupation of State authority over these

islands, as defined by international law. The Chinese Government, either
the Republic of China or the PRC, declared its indisputable sovereignty
over the islands of Xisha and Nansha as based on the continuity of
China's claim of sovereignty from the ancient to the present.

V. THE INTERNATIONAL REACTION TO CHINA'S CLAIM OF

SOVEREIGNTY OVER XISHA AND NANSHA ISLANDS

The attitudes of other countries towards China's claim of sover-

eignty over the four groups of islands in the South China Sea vary quite a
bit. The reactions to China's claim of sovereignty over the Xisha and the
Nansha Islands can be divided into two categories: First, to respect
China's claim by not reacting to or accepting the claim; and second, to
challenge China's claim with a legal dispute or to take action by occupy-
ing the Islands.

A. Britain
On January 21, 1974, a Senior British diplomat said that, in 1957,
Britain sent a note to the PRC in which Britain impliedly recognized7
China's claim of sovereignty over the islands of Tongsha and Xisha.1
Recent cases also showed Britain's positive reaction to China's claim of
sovereignty in the South China Sea Islands. In the British parliament's
1985 Sub-Committee Report, Sir Peter Blachen, Chairman of the Sub-
Committee on Hong Kong Affairs, mentioned that China included the
islands in the South China Sea as Chinese territory; no country raised
any objection. Since research showed that there is high petroleum and
mineral potential in the South China Sea, the neighboring states have
tried to become involved. 8

B. Germany
In 1883, Germany surveyed the Nansha Islands; however, Germany
abandoned this survey due to the protest by the Chinese government. In
so doing, Germany recognized China's sovereignty over the Nansha Is-
lands. In international
59 law, this constitutes "implicit recognition" or
"acquiescence.2

C. The United States

The U.S. government has taken a position of non-involvement as to
the claim of sovereignty in the South China Sea. In Article 3 of the U.S.-
57 Id.
58 AP News, London, Jan. 21, 1974; Hong Kong Dong-Fang Daily News, Sept. 23, 1985.
59 Yeh, supra note 4, at 28.
 CASE W. RES. J. IN L LV Vol. 23:399

Spanish Peace Treaty, the Philippine territory ceded to the United States,
did not include the Nansha Islands. The World GeographicalNames En-
cyclopedia, published in New York by the Columbia University Press
and the American National Geographical Society, listed Paracel Islands
and Spratly Islands as Chinese territories with the following statement:
Paracel Islands and Xisha Islands of China belong to the part of the
Guangdong Province. Prior to World War II, they were controlled by
the French. From 1939 to 1945, they were under Japanese occupation.
After World War II, they were returned to China.6
On January 19, 1974, John King, spokesman of the U.S. Depart-
ment of State, said that the United States has no desire to involve itself in
the sovereignty dispute surrounding the South China Sea islands.61 See-
retary of State, Henry Kissinger, met the press on January 22, 1974, to
emphasize that the United States would not be involved in the dispute
between the PRC and the Republic of Vietnam. 62 United States non-
involvement in the conflict over the Paracels Islands also was clarified by
Admiral Noel Gayler, U.S. Pacific Commander in Chief, in an interview
with U.S. News & World Report on March 25, 1974. He said, "we cer- 63
tainly kept hands-off in the Paracel battles and that's been noticed.

D. The Soviet Union

The Soviet Union has always recognized Chinese sovereignty over
the Xisha and the Nansha Islands. The 1967, Soviet World Map, a
world map published by the Council of Ministers' Publication, as well as
the 1973 Soviet Encyclopedia, and the Ocean Map published by the Min-
istry of National Defense, all indicated that the Nansha Islands and the
Xisha Islands are Chinese territories. 64
The Soviet Union, in the 1951 San Francisco Conference on the Jap-
anese Peace Treaty, opposed the Saigon Regime's intention to take the
Nansha and the Xisha Islands and indicated that these islands belonged
to China. 65 This is contrary to Vietnam's position, namely that the Re-
public of Vietnam claimed sovereignty after the 1951 San Francisco
Peace Treaty.

E. France
France occupied the Nansha Islands in 1933, while China was ex-
periencing a national crisis based on Japanese aggression. The Chinese
60 Id
61 N.Y. Times, Jan. 20, 1974, at 10, col. 2.
62 Id.
63 U.S. NEWS & WORLD REP., Mar. 25, 1974, at 46.
64 People's Daily News, Jan. 22, 1974.
65 Yeh, supra note 4, at 28.
 CHINA'S CLAIM OF SOVEREIGNTY

government protested strongly to France and cited the 1887 Sino-French

Convention regarding the boundary line between China and Vietnam.
This Convention indicated that the islands of Nansha and Xisha are lo-
cated outside of the boundary line of Vietnam. The Chinese government
used the contents of the French Government Bulletin issued on July 25,
1933, which indicated that only Chinese lived on the islands, contrary to
the French position that there were no Chinese on the islands; thus the
Nansha Islands should belong to China. The French were unable to
present any reasonable argument, and after World War II never again
contested the matter.66

F. Japan
The Japanese accepted the terms of surrender set by the Potsdam
Declaration, including the terms of the 1943 Cairo Declaration, which
provided that Japan would return all Chinese territories that it had
seized from China. Since Nansha and Xisha were occupied by Japan
during World War II, they were returned to China. Thus, both the 1951
San Francisco Japan Peace Treaty and the 1952 Sino-Japan Treaty stipu-
lated that Japan renounce all title and claim to Taiwan (Formosa),
Penghu (Pescadores), the Parcel Islands and the Spratly Islands. Since
then, Japan has not expressed any new position on China's claim of sov-
ereignty over the islands in the South China Sea.

G. Indonesia
On January 22, 1974, the spokesman of Indonesia's Foreign Minis-
try said that the Xisha Islands occupied by the Communist China troops
were Chinese territory. According to the policy of Indonesia, and from
the legal point of view of the 1951 San Francisco Peace Treaty, the Xisha
Islands were recognized as Chinese territory.6 7

H. Vietnam
Vietnam was divided into North and South Vietnam before 1975.
South Vietnam was called the Republic of Vietnam, which existed from
1954 to 1975. North Vietnam defeated South Vietnam in 1975. The uni-
fied Vietnam is called the Democratic Republic of Vietnam. The
Vietnamese attitude toward China's claim of sole sovereignty over
Paracel and Spratly Islands is different.68

66 Id
67 Pand, JaKauta, AP News, Jan. 22, 1974.
68 FACr SHEET, supra note 10.
 CASE W. RES. J INT'L Lv Vol. 23:399

1. The Republic of Vietnam's Attitude

The Republic of Vietnam started with a legal argument, and fol-
lowed with military action, to challenge China's claim of sovereignty in
the South China Sea by landing troops on some of the Paracel and
Spratly Islands.
On July 30, 1971, the Republic of Vietnam issued a "Declaration on
the Sovereignty of the Republic of Vietnam over the Archipelagos of
Paracels and Spratly" indicating five points in favor of its claim of
sovereignty:
1. In 1802, Emperor Gia Long created a "Dio Hoang Sa" (Company
of the Paracels) to supervise the exploitation of these islands.
2. In 1830, under Emperor Minh Mang, the "Thruong Sa" (Spratly)
Islands were included as part of the Vietnamese territory on the first
maps published by the kingdom.
3. In 1930 and 1933, acting on behalf of the Vietnamese empire, the
French government officially took possession of the Spratly Islands
and notified foreign powers of its possession by a letter dated Sep-
tember 29, 1933.
4. During the 1951 San Francisco Peace Conference, Japan had to re-
nounce all of the territories it had taken by force during the Second
World War, including the Spratly and Paracels Islands. The
Vietnamese delegate to the conference made a public statement of
Vietnamese sovereignty over the Paracels and Spratly Islands. The
statement aroused no objections from any of the 51 powers repre-
sented at the peace conference.
5. On October 22, 1956, the president of the Republic of Vietnam
placed the Spratly Islands under the administration of the Province
of Ba Ria. The declaration concluded that: "the Republic of Viet-
nam remains the only power to possess the most legitimate rights of
sovereignty over the Archipelagos of Spratly and Paracels because
it has fulfilled the conditions required by the convention of 1885
concerning the establishment of territorial competency.6 9
On January 19 and 20, 1974, the Republic of Vietnam landed troops
on six of the fifteen major Paracel Islands. The PRC sent warships to
defend the Xisha Islands and force the South Vietnamese to retreat. De-
spite the military conflict, no settlement was made before the collapse of
the Republic of Vietnam in 1975.

2. The Democratic Republic of Vietnam

The position of the socialist Vietnam is inconsistent. Prior to the
unification of North and South Vietnam, the Democratic Republic of
Vietnam recognized Chinese sovereignty over Xisha and Nansha, avoid-

69 Iad
1991] CHINA'S CLAIM OF SOVEREIGNTY

ing conflict and dispute over the sovereignty claim. On June 15, 1956,
Vice-Foreign Minister Un Van Khiem of the Democratic Republic of
Vietnam received Li Zhimin, Chare d'Affaires ad interim of the Chinese
Embassy in Vietnam, and told him that, "according to Vietnamese data,
the Xisha and Nansha Islands are historically part of Chinese territory."
Le Loc, Acting Director of the Asian Department of the Vietnamese
Foreign Ministry was present and specifically cited Vietnamese data and
pointed out that "judging from history, these islands were already part of
China at the time of the Song dynasty."7 0
In its declaration of September 4, 1958, the government of the PRC
proclaimed the breadth of the territorial sea of the PRC to be twelve
nautical miles and stated explicitly that "this provision applies to all ter-
ritories of the People's Republic of China, including the Dongsha Is-
lands, the Xisha Islands, the Zhongsha Islands, the Nansha Islands and
all other islands belonging to China." On September 6, 1958, Nhan Dan,
central organ of the Vietnamese Workers Party, prominently featured on
its front page details of the Chinese government's declaration. It wrote,
On September 4, 1958, the government of the People's Republic of
China issued a declaration on China's territorial sea. The declaration
provides that the breadth of China's territorial sea is twelve nautical
miles (over 22 kilometers). This provision applies to all territories of
the People's Republic of China, including the Chinese mainland and
its coastal islands, as well as Taiwan, and its surrounding islands, the
Penghu Islands, the Dongsha Islands, the Xisha Islands, the Zhongsha
Islands, the Nansha Islands and all other islands belonging to China
which are separated from the mainland and its coastal islands by the
high seas.'
On September 14, 1958, Premier Pham Van Dong of the Vietnamese
government solemnly stated, in his note to Premier Zhou Enlai of the
Chinese State Council, that "the Nam recognizes and supports the decla-
ration of the government of the People's Republic of China on China's
territorial sea made on September 4, 1958," and that "the government of
the Democratic Republic of Vietnam respects this decision."'72 Pham
Van Dong's note clearly shows that the Vietnamese government ac-
knowledged Xisha and Nansha Islands as China's territory.
However, since 1974, the Democratic Republic of Vietnam has re-
verted to its previous position and has issued a Vietnamese White Book73
which asserts that the Dai Nam Thuo Ching Bien (Official Chronicles of
Dai Nam) "records the occupation by King Gia Ling of the Hoang Sa
70 Chen, supra note 13.
71 Id.
72 Id.
73 Embassy of the Republic of Vietnam, Fact Sheet: Declarationof the Republic of Vietnam
Over the Sovereignty of the Spratly Islands (1974).
 CASE W. RES. J. INT'L LV Vol. 23:399

Islands in 1816."17 Vietnam called the Hoang Sa Islands the Xisha Is-
lands. The White Book states that the Truong Sa Archipelago, which
used to be called Sai Truong Sa, is the Nansha Island.
However, Sai Truong Sa, described in many Chinese and
Vietnamese historical records, is not situated where China's Nansha's Is-
lands are; the reference is to some islands and shoals along the
Vietnamese coast.
The Vietnamese map, Dai Nam Nhat Thong Toan Do (Complete
Map of United Dai Nam), shows that the Hoang Sa and Van Ly Truong
Sa are close and parallel to the coast of Central Vietnam and are not
where China's Xisha and Nansha Islands are located. The PRC took
action to oust them. Thus, the legal debate became a military conflict.7"

H. The Philippines
The Philippines also claim the Spratly Islands, based on theory of
the Archipelagos of the Philippines. In 1956, a Philippino, named To-
mas Clomas launched a private expedition to the Islands and claimed
them, naming them "Freedomland." The Republic of China protested to
the Philippine government and sent garrison forces to Taiping Island, in
the Itu Aba group, to defend the Nansha Islands.
In 1968, the Philippine government presented the so called
Kalayaan (Freedom) Islands in the Spratly Islands, and in 1978 the Phil-
ippine government formally claimed the Kalayaans by a presidential de-
cree. The islands have since been administrated as part of the Palawan
Province. 76 Thus, the Philippines occupied the Islands and claimed sov-
ereignty over them.

I. Malaysia
In July 1983, and in November 1986, Malaysia sent troops to oc-
cupy six islands in the Swallow Reef and other nearby islands. In 1988,
there were twenty-five soldiers stationed on the Swallow Reef. Since
there are Philippine forces on the Islands, the military conflict over the
territory is actually between the Philippines and Malaysia.7 7

VI. OPTIONS FOR A PEACEFUL SETTLEMENT OF THE DISPUTE ON

THE CLAIM OF SOVEREIGNTY OVER THE PARACELS AND
SPRATLY ISLANDS

Since the Republic of China, the Democratic Republic of Vietnam,

74 Id.
75 The Economist, Oct. 27, 1973, at 13.
76 Fil-AM Bulletin (Manila), Mar. 5, 1974.
77 Chen, supra note 13.
1991] CHINA'S CLAIM OF SOVEREIGNTY 419

the Philippines, and Malaysia all claim sovereignty over the Islands,
these overlapping claims will not only escalate the legal debate, but will
inevitably lead to international conflict. In order to settle the dispute and
to prevent a possible international crisis, the options for a peaceful settle-
ment should be considered. According to Article 33 of the United Na-
tions Charter, the methods for peaceful settlements of international
disputes include "a solution by negotiation, enquiry, mediation, concilia-
tion, arbitration. During settlement, resort to regional agencies or ar-
rangements or other peaceful means of their own choice.""8
The current disputes among the parties claiming sovereignty over
the Paracels and Spratly Islands arose because of military confrontation
rather than the selection of a peaceful solution. In light of the situations
that have developed, the options for peaceful settlement can be selected
from the following:
1. A negotiation between the disputingparties" The negotiation for the
settlement of the dispute can be held between two or three parties,
while keeping the status quo of the Islands occupied by each nation.
2. An inquiry by an internationalorganization: This is to submit the
disputed area to investigation by an objective international organi-
zation of technical experts. Such an investigation can be through
the United Nations or other international agencies. The interna-
tional investigation committee may make a report based on the facts
found in reference to settling the dispute.
3. A settlement by arbitration: This arbitration procedure has been
used widely to settle disputes over the claim of territory by sover-
eignty, such as the Beagle Islands claim dispute between Chile and
Argentina, 79 as well as the famous Palams Island Case between the
United States and the Netherlands.
4. A solution by judicial settlement: This solution can be achieved
through an international tribunal, such as the submission of the dis-
pute to the International Court of Justice. The Green Eastern Is-
land case of the Permanent Court of International Justice is a good
example of such a settlement.8 0
5. A regional conference on the Law of the Sea. Different from the
International Conference on the Law of the Sea, this would be a
regional conference between the disputing parties in the South
China Sea to discuss the issues economic zone, the continental shelf,
and the innocent passage of the sea land in the South China Sea.8 1
6. An agreementfor economic cooperation: This solution is to make an
agreement for economic development and cooperation between par-
ties involved in the exploitation of seabed products, such as miner-
78 U.N. CHARTER art. 33.
79 Beagle ChannelArbitration,Disposition of the Decision, 17 I.L.M. 634, 674 (1977).
80 Sorensen, supra note 49.
81 Katchen, The Spratly Islands and the Law of the Sea: "DangerousGround"forAsian Peace,
17 ASIAN SuRv. 1167, 1173 (1977).
 CASE W. RES. J. INTL LV Vol. 23:399

als, petroleum, etc. This will enable all parties involved to benefit
without hindering economic exploitation caused by the disputes
over the claim to sovereignty by each nation.
If these settlements can be pursued, based on procedures for the
peaceful settlement of international disputes, international conflict can be
avoided, international cooperation can be provided, economic exploita-
tion can be developed, and regional security and world peace can be
maintained.

VII. CONCLUSION
From both historical and legal perspectives, the Chinese claim to
sovereignty over the islands in the South China Sea, in contrast to the
claims by other countries, can be summarized by the following three
points:
1. Both the Chinese and Vietnamese claim sovereignty over the Par-
cels and Spratly Islands based on their historical records. However,
historical records indicate that China's claim is older and more sub-
stantial than that of Vietnam.
2. The Chinese, Vietnamese, Philipinos, and Malaysians claim sover-
eignty based on the international law of acquisition of territory by
occupation of "no man's land," which is open to discovery. The
Chinese made the discovery earlier and acquired the land before its
competitors. However, the Vietnamese and Philippinos, as well as
the Malaysians, invaded and occupied some the islands and claimed
sovereignty over them. Thus, the conflict among these countries
arises.
3. The sovereignty claim to the islands in the South China Sea not
only involves a conflict of territory, but also affects economic inter-
ests and usage of waterways' thereby reached. The conflict will not
only be a matter of international law, but will also have political
and economic consequences.