Claims over the Spratly Islands
By Chen Hurng-yu 陳鴻瑜
Disputes between China and Vietnam and the Philippines involving territorial claims over the Spratly Islands (南沙群島
have once more hit the headlines. My contention is that only territorial claims on the Spratlys that were established on the “critical date” when the Treaty of San Francisco came into effect are relevant.
Exactly 60 years ago, on Sept. 8, 1951, 48 nations signed the treaty in San Francisco. Article 2, Paragraph F of the treaty reads: “Japan renounces all right, title and claim to the Spratly Islands and to the Paracel Islands (西沙群島
.”
Now, the word “renounce” in the text of the treaty is confusing, because it could lead one to conclude, mistakenly, that the Spratly and Paracel Islands were therefore res nullius, a term referring to an entity — in this case a territory — to which no one has justifiable claim.
However, the international laws governing such matters cannot render the Spratlys terra nullius. In the context of international law, the term terra nullius refers specifically to a territory that belongs to no country, or to land that falls under the jurisdiction of no sovereign nation or entity, which was not the case here.
It is consequently necessary to go back further, to explore the status of the Spratly Islands prior to the signing of the treaty. We could usefully start with 1917, when the Japanese conducted a phosphate survey there, and 1919, when a company called Rasa Island Phosphate Ore obtained a license from the Japanese government to extract minerals from the islands.
In 1925, the French placed the main Spratly island under the jurisdiction of Ba Ria Province of French Cochin-China, and in 1933 announced its annexation of a further nine islands within the group. Both China and Japan objected to this move and entered into diplomatic negotiations on the issue.
In 1939, Japan occupied the Pratas Islands (東沙群島
, the Spratly Islands and the Paracel Islands, and brought them all under the jurisdiction of Takao (Kaohsiung) Prefecture in Taiwan, which was then a Japanese colony. This was likely the first time in history that the three island groups had been brought together under one administration. It also meant that, between March 1939 and August 1945, the Spratly Islands were under the administrative jurisdiction of Taiwan.
Whether de facto or de jure, the Republic of China (ROC) took on the right to control the Spratly Islands from Japan in December 1946, incorporating them as part of the territory of the ROC from January 1947. At this point they were placed under the jurisdiction of what was then the Hainan Special Administrative Region of the ROC’s Guangdong Province. In May 1950, ROC troops were temporarily withdrawn from the area as they were required elsewhere, but at no point did the ROC declare that this constituted renouncing territorial rights over the islands or that it has any intention of doing so.
In terms of international law, the ROC had sovereignty over the Spratly Islands and did not indicate that this was no longer the case when it temporarily withdrew its troops. Neither did the exercising of these sovereign rights end when the Treaty of San Francisco came into effect on April 28, 1952, or with the signing of the Sino-Japanese Peace Treaty, also known as the Treaty of Taipei, on the same day, with immediate effect. The ROC’s claim of sovereignty over the Spratly Islands was consequently intact.
The wording of the Treaty of San Francisco, in which Japan “renounced” its claim to the Spratly Islands, in no way conflicts with the ROC’s territorial and jurisdictional rights over the islands. Consequently, one cannot say that the island group could be considered terra nullius. One way to understand this is through the principle of uti possidetis juris, wherein the parties to a treaty can keep what they have seized during a war. Volume two of Hersch Lauterpacht’s Oppenheim’s International Law has this to say:
“Unless the parties stipulate otherwise, the effect of a treaty of peace is that conditions remain as at the conclusion of peace. Thus, all moveable state property, such as munitions, provisions, arms, money, horses, means of transport, and the like, seized by an invading belligerent, remain his property, as likewise do the fruits of immovable property seized by him. Thus further, if nothing is stipulated regarding conquered territory, it remains in the hands of the possessor, who may annex it.”
It follows that the ROC, as a victor nation, can, without the need for clarification within a treaty and in accordance with the principle of uti possidetis juris, legally claim the territory of the Spratly Islands, which was renounced by Japan, the defeated nation.
We can look at this from another angle, too. The Treaty of San Francisco stated that Japan renounced the Spratlys, and this particular stipulation concerning the renunciation of territorial claim led to a departure from international order, precipitating many more disputes, which was clearly not the intention of the nations involved in the treaty negotiations. Consequently, the principle of uti possidetis juris can be invoked with regard to the renunciation statement to resolve the situation and reinstate international order. Whichever way one looks at it, the ROC government’s seizure of the Spratly Islands renounced by Japan constituted its occupation of them.
Another way to look at this is from the perspective of the critical date in international law, which in this case we can take to be April 28, 1952, when the Treaty of San Francisco came into force and the Treaty of Taipei was signed. It is then possible to say that only those disputes that existed up until that date should be counted, and any disputes that appeared subsequent to that date should not count.
In other words, no country has the right to make a fresh claim after that date.
After the Treaty of San Francisco came into effect, France abandoned the Spratlys, no longer having a presence on any one of them, which gave rise to the question of whether they now belonged to Vietnam. France announced in September 1953 that the Spratlys still belonged to France, and not to Vietnam, reflecting the situation as it stood prior to the critical date. From this one can infer that Vietnam cannot claim that it had inherited the rights to the islands formerly owned by France.
By the same rationale, neither the Philippines, which occupied some of the Spratlys in the 1970s, nor Malaysia, who did so in the 1980s, has any territorial claim, as neither was a contesting nation prior to the critical date, defined as the day on which the Treaty of San Francisco came into force.
Chen Hurng-yu is a professor at Tamkang University’s Graduate Institute of Asian Studies.
Translated by Paul Cooper
