Legal basis of Vietnamese possession.

In 1933, the French Government decided to take official possession of the islands. Three ships, the Alerte, the Astrobale and the De Lanessan took part in the expedition. The following are relevant quotations from an account given by H. Cucherousset in L'Eveil economique de l'Indochine (No. 790 of May 28, 1933) : "The three vessels first of all visited Spratley and confirmed French possession by means of a document drawn up by the Captains, and placed in a bottle which was subsequently embedded in cement.

" Then the Astrolabe sailed south west to a point 70 miles from Spratley and 200 miles from Borneo, and arrived at the caye (sandy island) of Amboine, at the northern extremity of the Bombay Castle Shallows. Possession was taken of the island in the manner related above. This cave protrudes two meters 40 cm above the sea at high tide.

" Two-thirds of the rock which forms the caye is covered with a thick layer of guano, which the Japanese do not seem to have completely exploited.

" Meanwhile, the Alerte sailed towards the atoll Fiery Cross (or Investigation) at a point about 80 miles north-west of Spratly and equidistant from Cape Padaran and the southern point of Palawan Island. The whole of this vast reef protrudes only at a few points above the surface of the sea.

At the same time the De Lanessan proceeded towards the London reefs, at about

20 miles north-east of Spratly. There it discovered the wreckage of the Francois Xavier, which was wrecked there in 1927 while on its way from Noumea to Indochina via this part of the China Sea, in which, in spite of its great depth, navigators are not advised to sail too boldly.

"Itu Aba. which is surrounded by a reef, is mentioned in the naval instructions of 1919 as being covered with bushes and thickets with the nests of many sea birds, and a number of banana and coconut trees growing around a well....

"The De Lanessan and Astrolabe later sailed north where, about 20 miles from the Tizard bank, is situated the Loaita bank, an atoll of the same kind. The two vessels took formal possession of the main island, on which are also to be found the remains of plantations and an unexhausted phosphate working. Loaita Island is a sandy isle, low, covered with bush, and a bare 300 metres in diameter.

"The Alerte for its part visited the Thi-Thu reef, at about 20 miles north of the Loaita bank, and took possession of an island and of this atoll. still by means of the same ritual. This little low and sandy isle possesses a well, a few bushes, and some stunted coconut trees. A fair anchorage is to be found on the southern bank." Further north still, at the level of Nhatrang, is the atoll named "North Danger" , the Alerte took possession of two sandy islands (cayes) where it found some Japanese fishing. The De Lanessan went there too and explored the little island. The latter is perceptibly higher than the others, the highest point reaching 5 metres. The phosphate beds are considerable and were much exploited by the Japanese.

After possession had been taken, the French Ministry of Foreign Affairs published the following notice in the French Journal Officiel dated July 26, 1933 (page 7837) "Notice concerning the occupation of certain islands by French naval units. The French government has caused the under mentioned isles and islets to be occupied by French naval units:

1.   Spratley Island, situated 8o39' latitude north and 111o55' longitude east of Greenwich, with its dependent isles (Possession taken April 13, 1930).

2.   Islet caye of Amboine, situated at 7o52' latitude north and 112o55' longitude east of Greenwich, with its dependent isles (Posssession taken April 7, 1933).

3.   Itu Aba Island situated at latitude 10o2' north and longitude 114o21' east of

Greenwich, with its dependent isles (Possession taken April 10, 1933).

4.   Group of two islands situated at latitude 111o29' north and longitude 114o21' east of Greenwich, with their dependent isles (36) (Possession taken April 10, 1933).

5.   Loaita island, situated at latitude 10o42' north and longitude 114o25' east of Greenwith, with its dependent islands (Possession taken April 12, 1933).

6.  Thi Tu Island. situated at latitude 11o7' north and longitude 114ol6' east of Greenwich, with its dependent islands (Possession taken April 12, 1933).

The above-mentioned isles and islets henceforward come under French sovereignty (this notice cancels the previous notice inserted in the Official Journal dated July 25, 1933, page 7784).

Notification of the occupation was made by France to interested countries between July 24 and September 25, 1933. With the exception of Japan, no State which could have had an interest in the matter raised any protest against this act. Three powers in the area remained silent and unconcerned: the United States (then occupying the Philippines), China, and the Netherlands (then occupying Indonesia). In Britain, Foreign Under-secretary Butter declared 6 years later that France exercised full sovereignty over the Spratly archipelago and that all matters relevant to these islands were primarily a French concern (37).

The Japanese protested the French occupation on the ground that, in the past, Japanese subjects had carried out exploitation of phosphate on some of these islands. It was true that Japanese companies had operated on the Spratlys without the permission and knowledge of French authorities. But Japan had never made any attempt toward taking possession of these islands. In 1939., claims by the Japanese militarist government then in power assumed a tougher tone: Japan declared that she had decided to - place the Spratly or Tempest Islands off the coast of Indoch'na under Japanese jurisdiction -. The decision first appeared merely on paper, but was followed two years later by forcible military occupation of the archipelago (1941). In any case, in the San Francisco Peace Treaty of 1951, Japan relinquished all titles and claims to the Paracel and Spratly Islands.

It should also be noted that the French occupation of the Spratly Islands in 1933 did not arouse any protest from the United States government, which was then acting

on behalf of the Philippines. Five years earlier, the United States did engage in a dispute with the Netherlands over the island of Palmas off the Philippine coast (38). Since the United States did not act 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 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 10o41'N - 114o25'E Thi Tu 11o03'N - 114ol7'E Song Tu Dong 11 o27'N - 114o21'E

All of these three islands are in the list of islands published in the French Official Journal of July 26, 1933 which recorded the possession of the Spratlys by French naval units. The present position of the Philippine government that these islands are not part of the Spratly archipelago but only res nuilius when Philippine troops occupied them is, therefore, obviously erroneous. All three islands (which were artificially given Malayo-Spanish sounding names) are an integral part of the Vietnamese Truong Sa archipelago. Moreover, it remains to be determined in a common and friendly spirit whether or not some other, smaller, islands occupied by Philippine soldiers are dependent islets of these Vietnamese main islands. In this regard, it should be recalled here that when the French took possession of the Spratlys, they only listed the major islands in the official act and indicated that these islands were incorporated - with their dependent islets.

The Philippine government has also argued that the remaining islands of the Spratly archipelago (i.e., those not occupied by Philippine troops) are still -subject to the disposition of Allies in the past world war-. According to this theory, when Japan relinquished its rights over the Spratlys by the San Francisco Peace Treaty, its jurisdiction was assumed by the Allied powers who have,not yet ceded the archipelago to any particular country. No reasoning can be more disputable, since the Spratlys were already and fully part of Vietnamese territory before World War II. These islands were merely seized militarily by Japan and, just like Mindoro or Guam, must simplv return to their legitimate owner. It is obvious that military occupation by Japan could not result in any transfer of sovereignty over those islands and that Vietnam was ipso facto reinstated in her lawful rights after the defeat of Japan. In the San Francisco Peace Treaty, it was simply said that:

" Japan renounces all right, title and claim to the Spratly Islands and to the Paracel Islands."

Previously, the Cairo Declaration (1943) the Yalta Agreement and the Potsdam Declaration (1945), which are the basic documents for postwar territorial settlements, contained no clause contrary to the sovereignty of Vietnam over both archipelagoes. There have not been any other legal texts that attribute these territories to any country - as was correctly pointed out by the Philippine government. Thus, all sovereign rights must be returned to their legal titular, i.e., Vietnam which, since 1949 had inherited (or rather retaken) all of the former French rights over these territories. Therefore, the short clause about the Paracels and Spratlys in the San Francisco Peace Treaty was merely designed to confirm that Japan withdrew all her claims in earlier disputes with France.

It is to the credit of the Philippine government that it has not associated itself with the burlesque adventure of one of its private citizens, Mr. Tomas Cloma, who has prt,ended to - discover - the Vietnamese Truong Sa islands in 1956 and has proclaimed an independent - Freedomland - covering most of this archipelago (39). But the fact remains that Philippine troops are presently stationed on some of the islands described by Mr. Cloma as part of K Freedomland v. This matter must be settled in accordance with international law and the Charter of the United Nations. The Vietnamese people are entirely confident that the legal and peaceful channels available to solve such disputes will confirm the legitimacy of their rights.

Regarding China, it must be stressed that few people have had knowledge of any Chinese claims over the Spratlys in the past (40). In a sudden move on August. 24, 1951, Netv China in Peking attacked both French and Philippine claims regarding these islands and stated that they must be considered to be - outposts of Chinese national territory -. Subsequently, the People's Republic of China continued to issue statements filled with threats to use force in order to seize the Truong Sa archipelago (41). But it was the Republic of China's government which took the initiative and sent troops from Taiwan to occupy Thai Binh Island (Itu-Aba) on June 8, 1956. Itu-Aba is the largest island of the Spratlys and thus was a kind of - capital - where all French services were centered. As late as December 1973, the Far Eastern Economic Review of Hongkong reported that a marker still stood there with the inscription: (France - Ile ItuAba et Dependances - 10 Aouit 1933 - (42).