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La Souverainete sur les Archipels Paracels et Spratleys.

By Monique Chemillier-Gendreau.

Paris: Editions L'Harmattan, 1996. Pp. 306. Price: $42.00 (Paperback).

Reviewed by Steve Carlson.

(The Yale Journal Of International Law, Winter 1997, Vol. 22: 239-241.)

Located in the South China Sea, beyond the territorial limits of the surrounding nations, the Paracel and Spratley Islands for centuries were avoided as a locus of shipwrecks and the violent tropical storms that caused them. Never inhabited, they were visited over the ages by fishermen. These two archipelagos are now covered for their promise of mineral and biological wealth. Ever since the downfall of Imperial Japan, whose retreat from the South China Sea highlighted the strategic position of the Islands, neighboring nations have asserted their sovereignty over them, in order to assume control over fishing rights and potential petroleum reserves. Among the nations contending for sovereignty over the archipelagos, Vietnam maintains the most direct historical claim to the Islands. Its assertions are most strongly countered by those of China, which has militarily occupied the Islands since 1956. Taiwan, Malaysia, and the Philippines have also claimed sovereignty. La Souverainete sur les Archipels Paracels et Spratleys, describes the legal means for assessing the dispute, and the historical background necessary for its resolution.

International law is challenged to provide for the peaceful resolution of the present conflict. The absence of permanent inhabitants or major economic interests excluded the Paracel and Spratley Islands from the scrutiny of international diplomacy, and left the Islands outside the explicit sovereignty of surrounding nations, until the twentieth century. The determination of the sovereignty of uninhabited islands lies beyond the scope of maritime law; an appropriate measure to resolve which nation, or nations, should maintain claims to the Islands and their potential wealth, may be provided by an evaluation of each contending nation's historical claims to the Islands. Mere discovery of the Islands, or a simple declaration of control over them, does not suffice to attain sovereignty; rather, contending nations need to show continuous and systematic development of the Islands to substantiate their claims.

Vietnam holds the oldest, most direct claim to the Islands. As far back as the eighteenth century, the Annamite Empire that governed Vietnam sponsored two sea-going companies to recover goods from shipwrecks in the Islands. It is assumed that each company targeted one of the archipelagos, thus establishing an Annamite claim to both the Paracels and Spratleys. The Empire erected a stele (engraved pillar) and a temple on the Islands, and planted trees to mark the Islands for navigators. An eighteenth century Annamite map included the Islands within the territory of Annam. The French, who colonized Annam in 1884, preempted the Annamite's claims to the Islands and maintained a tenuous vigilance over the archipelagos throughout the Protectorate. However, the granting of Vietnam's independence in 19S6 and the subsequent turmoil of its civil war allowed the historical claims to the Islands to lapse until Vietnam's post-war reunification in 1974. (1975?)

China lacked concrete claims to the Islands prior to the twentieth century, when Japanese expansionism prompted it to open exploratory operations of its own. France's indifference to China's presence in the Islands encouraged China to assert sovereignty over the Paracels as early as 1909. Japan took much of the South China Sea during World War II, including the archipelagos. Japan's subsequent defeat and retreat created a vacuum that was left unresolved by post-war treaties. Upon Frances final withdrawal from Indochina, China's military overtook the eastern half of the Paracels in 1956, the western half in 1974, and the Spratleys in 1988. China has since fortified its garrisons on the Islands to bolster its claims of sovereignty.

China contends that its claims to sovereignty over the Islands are not based on military prowess but on historical fact. However, prior to the twentieth century, China publicly averred that it maintained no ties to the Islands, so as to not incur liability from shipwrecks in the archipelagos. More recently, China claims that North Vietnam, in 1958, ceded to it sovereignty over the Islands. This transfer of rights is void, however, because the demarcation between North and South Vietnam left the Islands under control of the latter.

The primary conflict, that between China and Vietnam, flared in 1974 and 1988, when Chinese forces overcame Vietnamese patrols. Both parties have since raised the stakes in the dispute by contracting with foreign oil companies to develop possible petroleum reserves. The potential for broadened hostilities is ripe, and international law must find a solution. Since neither China nor Vietnam are signatories to the jurisdiction clause of the International Court of Justice at the Hague, their submission to a decision issued by the Court would be voluntary. China maintains one judge on the Court, and is not opposed in principle to resolving the conflict at the Hague. It has made no attempt to do so because its nonmilitary claims to the Islands are tenuous and its recent advances violate the U.N. Charter, which does not recognize territorial gains by forceful conquest. Thus, it is unlikely that China will voluntarily submit itself to the International Court of Justice, the most appropriate institution for resolving the conflict.

The author asserts than an eventual resolution to the conflict with respect to the Paracels should be bipartisan, between China and Vietnam; the conflict over the Spratleys, which may be more pernicious due to the promise of petroleum reserves there, should be decided between China, Vietnam, Taiwan, Malaysia, and the Philippines, as each of these countries maintains claims to the archipelago. The mechanism for resolving the current dispute is unclear, however, as the issue lies beyond the scope of maritime laws and outside the jurisdiction of the International Court of Justice. Pressure is mounting to determine sovereignty over the Islands, as petroleum companies, eager to commence exploratory operations, are loathe to make large capital investments until the political situation calms. Absent intervention from international arbitrators, China maintains the upper hand in the dispute, because of its military presence in the Islands. China, whose policy of aggression may usurp Vietnam's historical claims to the Islands, stands to profit from the interstices of international law. This book competently and coherently offers key insights into a volatile and contemporary sovereignty dispute boiling in the South China Sea.