CHAPTER IV: THE DEFENSE OF THE LEGITIMATE RIGHTS OF VIETNAM

In preceding Chapters, it has been mentioned that the Vietnamese have always assured an appropriate defense of their rights over the Hoang Sa (Paracel) and Truong Sa (Spratly) Islands. Vietnamese or French troops were stationed permanently on both archipelagoes in a display of authority that is inherent to rightful sovereignty. In the diplomatic field, it has been recalled that France remained active until 1956 in the defense of the legitimate title it held on behalf of Vietnam. In 1932, then again in 1939, France issued particularly strong protests against pretenses from China concerning the Paracels and from Japan concerning the Spratlys.

Independent Vietnam had later to confront serious challenges to her sovereignty over these islands. At the San Francisco Peace Conference of 1951, Vietnam unequivocally reaffirmed its rights over both archipelagoes. The Vietnamese chief delegate dearly stated the position that, in settlement of territorial problems resulting from World War II, only Vietnam was entitled to recover the Hoang Sa and Truong Sa Islands from Japan. The defense of this cause continued actively during the following years. In response to the Chinese invasion of January 19-20, 1974, the Republic of Vietnam's soldiers fought heroically in the face of superior military force. Backed by all segments of the population, they kept alive the Vietnamese tradition that the temporary loss of physical control over a territory does not mean the relinquishing of a legitimate right.

From the San Francisco Peace Conference to 1973.
When Japanese military control ended in 1945, the Hoang Sa and Truong Sa Islands returned ipso facto to their legitimate owners. H ever, the confusion resulting from the war allowed other countries make bolder moves toward asserting their groundless claims. Specifically, the Republic of China illegally continued to station on some of the Hoang Sa Islands the troops that had been sent there to disarm Japanese soldiers in implementation of the Potsdam agreement. Thus the successive governments of newly independent Vietnam assumed the task of doing their utmost to protect the territorial integrity of the country. The first opportunity to do so was at the San Francisco Conference held in 1951 to work out a peace treaty with Japan. The gathering was attended by delegates from 51 countries. According to agreements reached, Japan renounced all rights and claims to the Paracel and Spratly Islands. The head of the Vietnamese delegation to this Conference was Prime Minister Tran Van Huu, who was also Minister of Foreign Affairs. On September 7, 1951, during the seventh plenary session of the Conference, the Vietnamese delegate made the following statement:

"...as we must frankly profit from all the opportunities offered to us to stifle the germs of discord, we affirm our right to the Spratly and Paracel Islands, which have always belonged to Vietnam ".

The statement aroused no objections from any of the 51 countries attending the Conference. This must be considered as having been the universal recognition of Vietnamese sovereignty over these islands. The declaration by Premier Huu was designed to reaffirm an existing right, therefore it has an effect erga omnes, i.e., even vis-a-vis those countries not represented at the Conference (for instance, the People's Republic of China).

On the other hand, the full text of Article 2 of the Peace Treaty shows that the two archipelagoes were considered as one single entity in the settlement of territorial matters:

Chapter II Territory Article 2

a) Japan, recognizing the independence of Korea renounces all right, and claim to Korea, including the islands of Quelpart, Port Hamilton and Dagelet.

(b)  Japan renounces all right, title and claim to Formosa and the Pescadores.

(c)  Japan renounces all right, title and claim to the Kurile Islands, and to that portion of Sakhalin and the islands adjacent to it over which Japan acquired sovereignty as a consequence of the Treaty of Portsmouth of September 5, 1905. (d) Japan renounces all right, title and claim in connection with the League of Nations Mandate System, and accepts the action of the United Nation Security Council of April 2, 1947, extending the trusteeship system to the Pacific Islands formerly under mandate to Japan.

(e)   Japan renounces all claim to any right or title to or interest in connection with any part of the Antarctic area, whether deriving from the activities of Japanese nationals or otherwise.

(f)  Japan renounces all right, title and claim to the Spratly Islands and to the Paracel Islands.

The Treaty does not specify which countries were to recover which specific territories renounced by Japan. However, from the above, it is clear that each sub­paragraph is relevant to the rights of one particular country, for example: sub-paragraph (b) : rights of China.

sub-paragraph (c) : rights of the USSR.

sub-paragraph (d) : rights subsequently conferred upon the United States. sub-paragraph (f) : rights of Vietnam.

This interpretation was confirmed by the refusal by the Conference to consider a Soviet amendment that would include the Paracels and Spratlys into the sphere of Chinese rights. The Soviet amendment reads as follows:

"1. To Article 2.

"(a) To include, instead of paragraphs (b) and (f), a paragraph reading follows:

Japan recognizes full sovereignty of the Chinese People's Republic over Manchuria, the Island of Taiwan (Formosa) with all the islands adjacent to it, the Penlinletao Islands (the Pescadores), the Tunshatsuntao Islands (the Pratas Islands), as well as over the Islands of Sishatsuntao and Chunshatsuntao (the Paracel Islands, the group of Amphitrites, the shoal of Maxfield) and Nanshatsuntao Islands including tile Spratly, and renounces all right, title and claim to the territories named here in. The Soviet Amendment was defeated during the 8th plenary session of the Conference. The President of the Conference ruled it out of order, the ruling being sustained by a vote of 46 to 3 with 1 abstention (49). Chinese claims to the Paracels and Spratlys were thus overwhelmingly disregarded.

At a later date, the government of the Republic of China restated its claims based on the separate peace treaty between it and Japan (April 28, 1952). Actually, the provision concerning the Paracels and Spratlys in that treaty was an exact restatement of Article 2 (f) of the San Francisco Treaty. Once again, Japan declined to specify in favor of which country it renounced its occupied territories. In any case, it must be stressed again that there exists an elementary principle of law that a state (in this case Japan) cannot transfer more rights than it itself possesses, in accordance with the maxim Nemo dat quod non habet. Generally speaking, the illegitimacy of China's claims over the Hoang Sa and Truong Sa archipelagoes is due to the lack of animus occupandi on Chinese's part. It is true that fishermen from Hainan Island have frequented these islands in the past and that Chinese travelers occasionally stopped there. But unlike what has been done by Vietnam, activities by private Chinese citizens were never followed by governmental action. As late as 1943, although Marshall Chiang Kai Shek represented the only country having claims to the Paracels and Spratlys at the Cairo Conference, he did not have any reference to these islands included in the final Declaration (which did state that Manchuria, Formosa and the Pescadores must be returned to China). Because of the weakness of its argument, China has always declined all suggestions, repeatedly made, in the past by France, that the dispute be settled before international courts.     

For the same reason, the People's Republic of China had to resort to gratuitous affirmations, threats and violence to assert her claims to the Vietnamese Hoang Sa and Truong Sa Islands. These claims are a mere revival of the old Chinese imperialistic drive known to all South-East Asia nations. The islands, islets, shoals and banks that the People's Republic of China claims as a the outposts of Chinese territory)) cover the entire South China Sea, and would virtually convert the whole sea into a communist Chinese lake.

After the San Francisco Peace Conference, successive Vietnamese Governments have assured a systematic defense of the Hoang Sa and Truong Sa islands by all means available to a sovereign state. After 1956, when stability had returned to the Republic of Vietnam following the Geneva Agreement of 1954, military and diplomatic activities became more intense. As mentioned before, navy patrols were conducted on a regular basis. When deemed necessary, the government of the Republic of Vietnam solemnly reiterated its rights over the islands (statements by the Ministry of Foreign Affairs on June 1, 1956 and July 15, 1971). Necessary steps were also taken vis-a-vis foreign governments in order to assert the Vietnamese title. For instance, a note to the Malaysian Government dated April 20, 1971 contained all the convincing arguments in support of Vietnamese sovereignty. This sovereignty was so evident that it could only be contested through military actions.

The Chinese invasion of January 19-20, 1974.

Before 1974, the People's Republic of China had aired sporadic claims to the Hoang Sa and Truong Sa Islands. Occasionally, it conducted secret actions against the islands, such as the intrusion of - fishermen , into Vietnamese uninhabited territories. However, at the beginning of 1974, the People's Republic of China resorted to blatantly aggressive tactics in order to militarily seize the Hoang Sa archipelago. The following is an account of the invasion made by the Minister of Foreign Affairs of the Republic of Vietnam. In the face of the extremely grave situation created by the PRC's imperialistic action, RVN Foreign Minister Vuong Van Bac summoned the heads of all diplomatic missions in Saigon on January 21st, 1974 and made the following statement:

Excellencies,

Gentlemen,

" I have invited you to gather here today to inform you of recent events which have taken place in the area of the Hoang Sa (Paracel) archipelago off the central coast of Vietnam. These events have created an emergency situation susceptible of endangering peace and stability in South East Asia and the world.

" The Hoang Sa (Paracel) and Truong Sa (Spratly) archipelagoes are a part of the territory of the Republic of Vietnam. The sovereignty of our country over these archipelagoes based on historical, geographical and legal grounds as well as on effective administration and possession, is an undeniable fact.

" On the 11th of January 1974, the Ministry of Foreign Affairs of Red China suddenly

claimed sovereignty over these archipelagoes. Our Ministry of Foreign Affairs immediately rejected those unfounded pretensions.

" From then on, Communist China chose to use force to seize that portion of our national territory. It sent men and warships into the area of the islands of Cam Tuyen (Robert), Quang Hoa (Duncan) and Duy Mong (Drumond) of the Hoang Sa (Paracel) archipelago, and landed troops on these islands.

" On January 16, 1974, the Ministry of Foreign Affairs of the Republic of Vietnam issued a statement to denounce these unlawful acts.

" In the meantime, in accordance with international regulations, naval units of the Republic of Vietnam instructed those men and ships violating the land and sea territory of the Republic of Vietnam to leave the area.

"The Red Chinese authorities not only refused to put an end to their unlawful incursions but also sent in additional reinforcements in troops and warships. They opened fire on the troops and naval units of the Republic of Vietnam, causing causalities and material damages. The Ministry of Foreign Affairs of the Republic of Vietnam issued a communique on the 19th of January alerting world public opinion on these serious acts of hostility.

" On the 20th of January 1974, the Red Chinese authorities escalate further in the use of force against an independent and sovereign country. They sent their warplanes to bomb three islands : Cam Tuyen (Robert), Vinh Lac (Money) and Hoang Sa (Pattle) where units of the Armed Forces of the Republic of Vietnam were stationing, and also 'landed their troops -with the aim of capturing these islands.

" Communist China is therefore openly using force to invade a portion of the Republic of Vietnam's territory in violation of international law, of the Charter of the United Nations, of the Paris Agreement of January 27, 1973 which it pledged to
respect and of the Final Act of March 2, 1973 of the International Conference on Vietnam to which it is a signatory.

" The Government and people of the Republic of Vietnam shall not yield to such brazen acts of aggression. They are determined to safeguard their national territory.

" I kindly request you to report to your Governments on this grave situation. The Government of the Republic of Vietnam also wishes that your Governments would adopt an appropriate attitude and take appropriate action in view of those acts committed recently by the Communist Chinese authorities in the Hoang Sa (Paracels) archipelago, in complete disregard for international law and the sovereignty of other nations.