Read Online The South China Sea by Bill Hayton - Free Book Online Page B
Authors: Bill Hayton
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international law it might amount to what's known as an ‘estoppel’.
Estoppel is a key concept in European civil law. Its purpose is to stop claimants saying one thing and doing another. If, for example, one party agrees that a dispute is settled, they can't subsequently go back on their word. It's intended to promote transparency and honest behaviour and is supposed to do the same thing in international law too. If one state recognises the validity of another's territorial claim then, in theory, it should be ‘estopped’ from contesting the claim in future. In 1958, however, neither the Democratic Republic of Vietnam nor the People's Republic of Chinahad acceded to the International Court of Justice and, as communist states, neither had much regard for the ‘bourgeois, imperialist’ rules of the international community. Rather, they were in the midst of an international anti-imperialist war against them.
On 23 August 1958 forces of the People's Republic of China began shelling their Nationalist rivals on the islands of Jinmen and Mazu, both within a few kilometres of the Chinese mainland. Eleven days later the Communist Chinese issued a ‘Declaration on the Territorial Sea’ claiming ownership of all waters up to 12 nautical miles offshore – encompassing both Jinmen and Mazu. The purpose was primarily to prevent American ships from resupplying or defending the islands. But the declaration also asserted a territorial claim to Taiwan and its surrounding islands, and to the Paracels, Macclesfield Bank and the Spratlys. In a gesture of solidarity against the American imperialists North Vietnam printed the declaration in the Communist Party newspaper Nhan Dan on 6 September and then, on the 14th, Pham Van Dong sent his letter. The letter didn't explicitly consent to Communist China's claim to the islands but neither did it explicitly reject it. That failure to protest might be sufficient grounds for a tribunal to regard the Vietnamese claim to the islands as estopped. However, the Vietnamese leadership would feel more than a little aggrieved if its gesture of brotherly solidarity with another Communist state during a period when neither was familiar with the minutiae of international law was used more than half a century later to undermine its country's territorial position.
In short, when subjected to the arcane rules and customs of international justice what might appear to be a ‘natural’ Vietnamese claim to the Spratly Islands off their country's coast is less strong than it might appear. Unless the French government formally cedes its claims to the Spratlys, Vietnam cannot rely on the actions of the French Empire in the 1930s and 1940s. There may also be legal argument over whether the current Socialist Republic of Vietnam is legitimately the successor to the Republic of Vietnam and its actions and whether Pham Van Dong's letter undermined the Democratic Republic of Vietnam's claim.
China's historic claim to the Spratlys relies on references to islands in ancient documents. However, a closer reading of those texts provides no information about exactly which islands are being referred to and nothingthat amounts to proof of conquest, cession, occupation, prescription or accretion. An international court will have to grapple instead with China's complex modern history. The Republic of China was proclaimed in January 1912 and formally recognised by the ‘great powers’ in October 1913. But even before this had happened, seven southern provinces had rebelled against Beijing's control, beginning a revolt that would result in the establishment of a separate, rival government in Guangzhou in 1917 by Sun Yat-sen and his allies. It would be 11 years before this administration could fight its way to power over the whole country and become China's internationally recognised government. During this turbulent period, the authorities in southern China are said to have carried out a number of actions that form the basis
Estoppel is a key concept in European civil law. Its purpose is to stop claimants saying one thing and doing another. If, for example, one party agrees that a dispute is settled, they can't subsequently go back on their word. It's intended to promote transparency and honest behaviour and is supposed to do the same thing in international law too. If one state recognises the validity of another's territorial claim then, in theory, it should be ‘estopped’ from contesting the claim in future. In 1958, however, neither the Democratic Republic of Vietnam nor the People's Republic of Chinahad acceded to the International Court of Justice and, as communist states, neither had much regard for the ‘bourgeois, imperialist’ rules of the international community. Rather, they were in the midst of an international anti-imperialist war against them.
On 23 August 1958 forces of the People's Republic of China began shelling their Nationalist rivals on the islands of Jinmen and Mazu, both within a few kilometres of the Chinese mainland. Eleven days later the Communist Chinese issued a ‘Declaration on the Territorial Sea’ claiming ownership of all waters up to 12 nautical miles offshore – encompassing both Jinmen and Mazu. The purpose was primarily to prevent American ships from resupplying or defending the islands. But the declaration also asserted a territorial claim to Taiwan and its surrounding islands, and to the Paracels, Macclesfield Bank and the Spratlys. In a gesture of solidarity against the American imperialists North Vietnam printed the declaration in the Communist Party newspaper Nhan Dan on 6 September and then, on the 14th, Pham Van Dong sent his letter. The letter didn't explicitly consent to Communist China's claim to the islands but neither did it explicitly reject it. That failure to protest might be sufficient grounds for a tribunal to regard the Vietnamese claim to the islands as estopped. However, the Vietnamese leadership would feel more than a little aggrieved if its gesture of brotherly solidarity with another Communist state during a period when neither was familiar with the minutiae of international law was used more than half a century later to undermine its country's territorial position.
In short, when subjected to the arcane rules and customs of international justice what might appear to be a ‘natural’ Vietnamese claim to the Spratly Islands off their country's coast is less strong than it might appear. Unless the French government formally cedes its claims to the Spratlys, Vietnam cannot rely on the actions of the French Empire in the 1930s and 1940s. There may also be legal argument over whether the current Socialist Republic of Vietnam is legitimately the successor to the Republic of Vietnam and its actions and whether Pham Van Dong's letter undermined the Democratic Republic of Vietnam's claim.
China's historic claim to the Spratlys relies on references to islands in ancient documents. However, a closer reading of those texts provides no information about exactly which islands are being referred to and nothingthat amounts to proof of conquest, cession, occupation, prescription or accretion. An international court will have to grapple instead with China's complex modern history. The Republic of China was proclaimed in January 1912 and formally recognised by the ‘great powers’ in October 1913. But even before this had happened, seven southern provinces had rebelled against Beijing's control, beginning a revolt that would result in the establishment of a separate, rival government in Guangzhou in 1917 by Sun Yat-sen and his allies. It would be 11 years before this administration could fight its way to power over the whole country and become China's internationally recognised government. During this turbulent period, the authorities in southern China are said to have carried out a number of actions that form the basis
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