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Authors: Bill Hayton
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mentioning. This was the first act of sovereignty, in a form that an international tribunal would recognise, ever made by any Chinese government in the Spratlys. ROC forces then occupied the island, on and off, until they pulled out on 5 May 1950. By then the French had other priorities: Indochina was being prised from their grasp by Ho Chi Minh and his nationalist friends.
Threading a coherent case through the tapestry of what happened next will earn international lawyers some fine fees. To summarise two bloody decades: Vietnam was divided between Communist north and capitalist south in 1954, the French pulled out in 1956 and then the country was reunited under Communism in 1975–6. While it might seem logical that – since France was the colonial power in Vietnam – French territorial claims in the South China Sea would naturally fall to Vietnam after independence, that argument is unlikely to satisfy an international court. Just like Britain, France has never formally abandoned its claim to the Spratly Islands. It claimed them on its own account, not on behalf of Vietnam. (This situation contrasts strongly with its earlier claim on the Paracel Islands, which was ostensibly made on behalf of the protectorate of Annam, and later fell to Vietnam.) It was not until 1956 that the newly independent Republic of Vietnam (‘South Vietnam’) asserted a claim to the Spratly Islands, in response to the pretensions of the Filipino entrepreneur Tomas Cloma. That was also the cue for the Republic of China to reoccupy Itu Aba.
The situation becomes even more complex when one investigates the legal situation of the Republic of Vietnam (RVN) itself. One could take the view that the republic was an illegal puppet state created by the imperial powers (French and American). This was certainly the view of the leadership of the Communist Democratic Republic of Vietnam (‘North Vietnam’ or DRV) at the time. The DRV regarded itself as the legitimate government of the entire country, temporarily constrained to a part ofthe national territory by the 1954 partition. Alternatively one could see the DRV (North Vietnam) and the RVN (South Vietnam) as two legitimate states in separate areas of the national territory. To some extent the DRV leadership played along with this too – it sponsored a separate ‘Provisional Revolutionary Government’ that was officially in charge of the war in the south. When the Communists defeated the Republic in 1975 they officially created a southern Communist state with its own legal ‘personality’ for just over a year before uniting the two countries under a single ‘Socialist Republic of Vietnam’ in 1976.
Why does all this matter? Because the legalistic nature of international tribunals will require a claimant country to show it has established a formal claim to a territory, that it has maintained that claim and then asserted it in the face of actions by other claimants. Up until 1975 the DRV did very little to assert its claims in the South China Sea while the Republic of Vietnam did considerably more. If the DRV was the legitimate government of the whole country, then its earlier lack of action could harm its case. If the Republic's actions are taken into account – as a legitimate state within the national territory of Vietnam – then Vietnam's case would be much stronger.
There is one particular action taken by the leadership of DRV that has been used to undermine the Vietnamese claim to the islands. In 1958 the Prime Minister of the DRV, Pham Van Dong, sent a brief letter to his (Communist) Chinese counterpart in which he wrote that ‘the Government of the Democratic Republic of Vietnam recognises and approves the declaration made on 4 September 1958 by the Government of the People's Republic of China regarding the decision taken with respect to China's territorial sea’. Again, this might seem a somewhat obscure reason to deny the Vietnamese claim to the islands but under the customs of
Threading a coherent case through the tapestry of what happened next will earn international lawyers some fine fees. To summarise two bloody decades: Vietnam was divided between Communist north and capitalist south in 1954, the French pulled out in 1956 and then the country was reunited under Communism in 1975–6. While it might seem logical that – since France was the colonial power in Vietnam – French territorial claims in the South China Sea would naturally fall to Vietnam after independence, that argument is unlikely to satisfy an international court. Just like Britain, France has never formally abandoned its claim to the Spratly Islands. It claimed them on its own account, not on behalf of Vietnam. (This situation contrasts strongly with its earlier claim on the Paracel Islands, which was ostensibly made on behalf of the protectorate of Annam, and later fell to Vietnam.) It was not until 1956 that the newly independent Republic of Vietnam (‘South Vietnam’) asserted a claim to the Spratly Islands, in response to the pretensions of the Filipino entrepreneur Tomas Cloma. That was also the cue for the Republic of China to reoccupy Itu Aba.
The situation becomes even more complex when one investigates the legal situation of the Republic of Vietnam (RVN) itself. One could take the view that the republic was an illegal puppet state created by the imperial powers (French and American). This was certainly the view of the leadership of the Communist Democratic Republic of Vietnam (‘North Vietnam’ or DRV) at the time. The DRV regarded itself as the legitimate government of the entire country, temporarily constrained to a part ofthe national territory by the 1954 partition. Alternatively one could see the DRV (North Vietnam) and the RVN (South Vietnam) as two legitimate states in separate areas of the national territory. To some extent the DRV leadership played along with this too – it sponsored a separate ‘Provisional Revolutionary Government’ that was officially in charge of the war in the south. When the Communists defeated the Republic in 1975 they officially created a southern Communist state with its own legal ‘personality’ for just over a year before uniting the two countries under a single ‘Socialist Republic of Vietnam’ in 1976.
Why does all this matter? Because the legalistic nature of international tribunals will require a claimant country to show it has established a formal claim to a territory, that it has maintained that claim and then asserted it in the face of actions by other claimants. Up until 1975 the DRV did very little to assert its claims in the South China Sea while the Republic of Vietnam did considerably more. If the DRV was the legitimate government of the whole country, then its earlier lack of action could harm its case. If the Republic's actions are taken into account – as a legitimate state within the national territory of Vietnam – then Vietnam's case would be much stronger.
There is one particular action taken by the leadership of DRV that has been used to undermine the Vietnamese claim to the islands. In 1958 the Prime Minister of the DRV, Pham Van Dong, sent a brief letter to his (Communist) Chinese counterpart in which he wrote that ‘the Government of the Democratic Republic of Vietnam recognises and approves the declaration made on 4 September 1958 by the Government of the People's Republic of China regarding the decision taken with respect to China's territorial sea’. Again, this might seem a somewhat obscure reason to deny the Vietnamese claim to the islands but under the customs of
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