1. The undisputed evidences of the continuous implementation of Vietnam’s sovereignty over Hoang Sa (Paracel) and Truong Sa (Spratly) archipelagos (1945-1976)

The Vietnam State has peacefully and continuously managed Hoang Sa and Truong Sa archipelagos throughout historical periods - at least from the 17th century to the present. In the early 19th century, the Nguyen Dynasty strengthened their sovereignty over these archipelagos through appropriate administrative procedures. As Vietnam became a French protectorate, France succeeded the Nguyen Dynasty and maintained sovereignty over the archipelagos in accordance with the international law from 1884 until 1945. China officially recognized this sovereignty of France through the France - Qing Dynasty Treaty signed in 1887 and through the Supplementary Article to this Treaty signed in 1895. Thus, the continuation of the sovereignty of Vietnam, at least from the early 17th century to the early 1945, was clarified through the historical documents currently archived in Vietnam and in the world.

Vietnam has continuously implemented its sovereignty over Hoang Sa and Truong Sa archipelagos, which is shown through evidences and facts:

On 2 September 1945, President Ho Chi Minh solemnly declared the founding of the Democratic Republic of Vietnam (DRV). On 6 January 1946, the DRV organized the election of the National Assembly and adopted the Constitution on 9 November 1946. Pursuant to this Constitution, the DRV was an independent country, had territorial integrity and declared sovereignty over the whole territory of Vietnam. On 6 March 1946, the Government of the DRV and France signed the Preliminary Agreement under which the French Government recognized the DRV as a free country of the Indochina Federation within the French Union. The DRV had its government, parliament, army and finance. France would withdraw its troops from Vietnam in the time-frame of 5 years. Then, the two governments signed the Vietnam - France Modus Vivendi on 14 September 1946 attempting to temporarily concretize the Preliminary Agreement. However, not implementing the articles of the Preliminary Agreement and the Vietnam - France Modus Vivendi, France intentionally provoked war to reestablish a colonial regime in the territory of Vietnam. The war between the DRV and France together with the pro-French forces occurred in late 1946 and lasted until mid-1954, when the Geneva Agreement on the restoration of peace to Indochina was signed.

Based on the Preliminary Agreement, France implemented the right of representation for protecting the sovereignty of the DRV over Hoang Sa and Truong Sa archipelagos in accordance with the international law from the early 1946 to early 1949, because the DRV was in the French Union.

In October 1946, when the DRV was busy preparing for a nation-wide resistance against French colonialists, under the pretext of disarming the Japanese troops, the Republic of China (ROC) sent troops to illegally occupy Phu Lam Island belonging to the Hoang Sa archipelago. In December 1946, the ROC illegally occupied Ba Binh Island belonging to Truong Sa archipelago. It occupied Phu Lam and Ba Binh islands until 1950.

From late 1946, along with using arms to destroy the DRV Government, France intended to establish a non-communist government in Vietnam. Following lots of intermediary procedures, the Ha Long Agreement was signed on 8 March 1949, and the State of Vietnam (SOV), belonging to the French Union, was founded. (According to some sources, 35 countries had recognized the SOV by early 1950). With this event, state France officially handed over the management of the entire territory of Vietnam, including Hoang Sa and Truong Sa archipelagos was considered to have been officially transferred from France to the SOV. Thus, in April 1949, the Prince Nguyen Phuc Buu Loc, Minister of Interior Affairs of the SOV, reaffirmed sovereignty of Vietnam over Hoang Sa and Truong Sa archipelagos. On 14 October 1950, under chairmanship of the Chief Governor of the Central Part of Vietnam, Phan Van Giao, the management of Hoang Sa and Truong Sa archipelagos was officially handed over to the SOV by the French Government.

In 1949, France applied to the World Meteorological Organization for registering the three meteorological stations built by France in Hoang Sa and Truong Sa archipelagos, and the application was accepted. These were the Phu Lam Meteorological Station (code number: 48859), the Hoang Sa Meteorological Station (code number: 48860), the Ba Binh Meteorological Station (code number: 48419).

In 1951, the SOV was invited to the San Francisco Conference on ending war in the Asia - Pacific region and establishing relations with post-war Japan. 51 countries attended this conference. At the Conference, the Foreign Minister of the USSR proposed to hand over Hoang Sa and Truong Sa archipelagos to China. But the proposal was rejected with 46 votes against and 3 votes in favor.

At the Conference, the concurrently Prime Minister and Minister of Foreign Affairs of the SOV, Tran Van Huu, stated: “Vietnam is extremely pleased to sign first for this cause of peace creation. Therefore, it is necessary to truly make use of all opportunities, to smother seeds of future conflict. We confirm our long-established sovereignty over Truong Sa and Hoang Sa archipelagos”⁽¹⁾. This statement was met with no objection or reservation whatever.

In the Peace Treaty between China and Japan of 28 April 1952, China acknowledged that Japan had renounced all rights to these two archipelagos as it was stipulated in the documents of the San Francisco Conference, and China did not by any way require Japan to return to it these two archipelagos. This showed that China indirectly recognized Vietnam’s declaration of sovereignty over the two archipelagos at the San Francisco Conference.

Thus, Vietnam had two governments during the period from 1945 to 1954 and both of them exercised sovereignty over Hoang Sa and Truong Sa archipelagos. The DRV was a member of the French Union and was represented by France in implementation of sovereignty. The SOV was also a member of the French Union to which sovereignty was transferred by France; and the SOV thus asserted sovereignty over the two archipelagos. The declaration of SOV at the Conference of San Francisco was met with no objection or reservation by any state, which is very clear evidence that Vietnam asserted sovereignty clearly and transparently and it received these two archipelagos from Japan.

On 21 July 1954, the Geneva Agreement was signed. Under this Agreement, the territory of Vietnam was temporarily divided into two zones: the North was administered by the DRV, and the South by the French Union and the pro-French forces (including the SOV). The temporary demarcation between the two zones was the 17th Parallel (the Ben Hai river). Also under this Agreement, a General election for unification of the country was supposed to be conducted in 1956.

In 1955, in the wake of a separate referendum, Prime Minister Ngo Dinh Diem deposed Bao Dai to become Head of the SOV. Then, the SOV organized a Parliamentary election, promulgated the Constitution, and was renamed to the Republic of Vietnam (ROV) with Ngo Dinh Diem as the President.

By signing the Geneva Agreements in 1954, the DRV officially acknowledged that it would administer only the territory of Vietnam to the north of the 17th Parallel, and achieve national reunification through a general election in the North and the South. Also, by doing so, the DRV indirectly recognized that the SOV would administer the territory of Vietnam to the south of the 17th Parallel, including Hoang Sa and Truong Sa archipelagos, on behalf of France, although the SOV was not a signatory to the Geneva Agreements.

From 1954 to 1976, the SOV and then the ROV, and the Socialist Republic of Vietnam peacefully, continuously and effectively administered Hoang Sa and Truong Sa archipelagos as prescribed in the international law, as evident from the following events⁽²⁾:

In April 1956, the navy of the ROV took over the Western group of islands of Hoang Sa archipelago from France.

On 1 June 1956, ROV Foreign Minister Vu Van Mau reaffirmed Vietnam’s sovereignty over Hoang Sa and Truong Sa archipelagos.

On 22 August 1956, the navy of the ROV landed to take over some islands of Truong Sa Archipelago and erected the flag pole and stele of sovereignty.

On 22 October 1956, ROV President Ngo Dinh Diem signed the Decree No. 143-NV on renaming provinces and cities of South Vietnam. It stipulated that Truong Sa belonged to Phuoc Tuy province.

On 21 February 1959, 82 Chinese soldiers disguised as fishermen secretly landed on Huu Nhat, Duy Mong and Quang Hoa islands and then were captured and retained by the forces of ROV stationed there. Moreover, the forces of ROV also seized 5 armed fishing ships of China. These soldiers and ships later were returned to China.

On 13 July 1961, ROV President Ngo Dinh Diem promulgated the Ordinance No. 174-NV to merge Hoang Sa archipelago into Dinh Hai commune, Hoa Vang district, Quang Nam province.

In 1963, the ROV built steles of sovereignty on the islands of Truong Sa (on 19 May), An Bang (20 May), Thi Tu - Loai Ta (22 May) and Song Tu Dong - Song Tu Tay (24 May).

On 21 October 1969, ROV Prime Minister, Tran Thien Khiem signed the Decree No. 709-BNV/HCDP “to merge the Dinh Hai commune, Hoa Vang district, Quang Nam province into the Hoa Long commune of the same Hoa Vang district”⁽³⁾.

On 13 July 1971, at the ASPEC Conference in Manila, ROV Minister of Foreign Affairs, Tran Van Lam reaffirmed Vietnam’s sovereignty over Truong Sa archipelago.

On 6 September 1973, the ROV issued the Decree No. 420-BNV/HCDP/26 to stipulate that the islands of Truong Sa archipelago belonged to Phuoc Hai commune, Dat Do district, Phuoc Tuy province.

From 17 to 20 January 1974, taking advantage of the time when the shaky government of the ROV was about to collapse, China attacked the naval forces of the ROV and illegally occupied the western part of Hoang Sa archipelago. On 20 January 1974, the Provisional Revolutionary Government of the Republic of South Vietnam issued a Statement in protest of this action. On 14 February 1974, the ROV issued a statement very strongly protesting the China’s occupation of the islands with violence, confirming that Hoang Sa archipelago was an integral part of the territory of Vietnam; and that the forces of the ROV would continue struggling to win back by all means, the occupied territory in Hoang Sa archipelago.

In February and March 1974, the ROV continuously reaffirmed Vietnam’s sovereignty over Hoang Sa and Truong Sa archipelagos at the international forums and through diplomatic channels. In early 1975, the Ministry of Foreign Affairs of the ROV published a White Paper on the historical and legal evidences of sovereignty of Vietnam over Hoang Sa and Truong Sa, and again protested China’s illegal invasion and occupation of part of Hoang Sa archipelago. From 14 to 28 April 1975, the naval forces of the ROV on Song Tu Tay, Son Ca, Nam Yet, Sinh Ton and Truong Sa islands were replaced by those of the Liberation Army of South Vietnam. On 30 April 1975, the country was reunified and Hoang Sa and Truong Sa archipelagos were handed over to the management of the Provisional Revolutionary Government of the Republic of South Vietnam.

On 2 July 1976, through the General election, the DRV and the Republic of South Vietnam were unified into the Socialist Republic of Vietnam. Since then, as the inheritor of ownership of Hoang Sa and Truong Sa archipelagos from the previous governments, the State has continuously maintained and protected the sovereignty of Vietnam over them.

2. Scientific arguments turning down China’s claims of sovereignty over Hoang Sa and Truong Sa archipelagos

According to the 1978 Convention on National inheritance to international treaties⁽⁴⁾, there are 3 cases leading to national inheritance: 1) when a colony has become a new independent state; 2) when a state has been merged or separated; and 3) when one part of territory of a state has been handed over to another state. As for Vietnam, between 1945 and 1976, there were different governments, as consequences of State merger and separation, we must refer to the concept of State and define the states having existed on the territory of Vietnam in this period.

The Montevideo Convention 1933⁽⁵⁾ on the Rights and Obligations of States declares: “A nation is an entity of the international law, meeting the standards of having a stable population, a defined territory, a government, and the ability to participate in international relations”, and “The political existence of the state is independent of recognition by the other states”.

Before 1954, on the territory of Vietnam there co-existed two governments: the DRV and the SOV. Both of them declared themselves the legitimate government of Vietnam and exercised sovereignty over the whole territory of Vietnam. After the signing of the Geneva Agreement (July 1954), these two governments managed the Northern and Southern Parts of Vietnam respectively. Indeed, they were two political entities, satisfying the conditions for being recognized as state: having a stable population, a defined territory, a government, and the ability to participate in international relations. Thus, it can be said that between 1954 and 1975, on the territory of Vietnam there existed two states: the DRV and the ROV. Both of them declared on the territorial integrity of Vietnam and asserted their wish to unify Vietnam, but their behavior was different. The DRV always declared the aspiration to liberate the South, and reunify the country; but it always considered this task to be the right to self-determination of both the Southern and Northern people and national reunification must be carried out through a negotiated general election on a national scale.

During the entire length of their existence, both the DRV and the ROV were recognized by many countries, but not concurrently. However, in the history of their existence, a number of states had proposed to recognize them simultaneously. For example, in January 1957, the USSR proposed that the United Nations should accept both the DRV and the ROV as members. However, the DRV protested the USSR’s proposal⁽⁶⁾. Moreover, the USSR twice objected the ROV’s applications to the United Nations for membership in 1957 and 1958(7). In August 1975, both the DRV and the ROV applied for joining the UN and 123 countries of the UN General Assembly voted in favor and none voted against, but the US vetoed that. China opposed the US’s action and declared that it was “a comprehensive violation of the clear provisions of the UN Charter and relevant resolutions of the General Assembly”. As such, the actions taken by China in the period from 1954 to 1976 showed that China acknowledged the existence of two separate states on the Vietnamese territory during that time⁽⁸⁾.

Thus, viewed from the international law and practices, it is clear that, although the Geneva Agreements only stipulated the temporary division of Vietnam into two zones for a duration of 2 years, in realities, the DRV and the ROV co-existed on the territory of Vietnam and they could be considered independent states. These two states implemented sovereignty over different areas of Vietnam. DRV exercised its sovereignty over the territorial mainland and islands to the north of the 17th Parallel (the Ben Hai River), while the ROV implemented its sovereignty over the territorial mainland and islands to the south of the 17th Parallel. Thus Hoang Sa and Truong Sa archipelagos were the territory of ROV. 

The Geneva Agreement stipulated that a General election for reunification of the country would be organized in 1956. But the ROV Government did not observe this stipulation. The National Front for Liberation of South Vietnam was formally established on 20 December 1960 at Tan Lap commune, Chau Thanh district (now Tan Bien district) in Tay Ninh province. Its armed forces were the Liberation Army of South Vietnam. From 6 to 8 June 1969, as the core force, the National Front for Liberation of South Vietnam, along with the Union of National, Democratic and Peace Forces of Vietnam, chaired by lawyer Trinh Dinh Thao, established the Provisional Revolutionary Government of the Republic of South Vietnam. From June 1969 to 1975, more than 50 countries recognized and established diplomatic relations with the Provisional Revolutionary Government of the Republic of South Vietnam. Immediately after its establishment, the Provisional Revolutionary Government of the Republic of South Vietnam became a party (along with the DRV, the ROV and the US) to the Paris negotiations and the Paris Agreement on restoring peace to Vietnam signed in 1973.

On 30 April 1975, after accepting the surrender of ROV Government, the Provisional Revolutionary Government of the Republic of South Vietnam declared: “Now, the Provisional Revolutionary Government of the Republic of South Vietnam implements sovereignty of territorial integrity over the entire South Vietnam, and is the only genuine and legitimate representative of the South Vietnam people, and has full authority for solving all international problems in South Vietnam”⁽⁹⁾.

Through this declaration and acceptance of the surrender of ROV, the Provisional Revolutionary Government of the Republic of South Vietnam asserted that it implemented officially the rights of national inheritance from the ROV, especially the inheritance of sovereignty over the territory of South Vietnam, including the two archipelagos of Hoang Sa and Truong Sa. In fact, after 1975, the Republic of South Vietnam inherited from the ROV the territory, the representative offices abroad, and the membership in international organizations. All the inheritance of the Republic of South Vietnam was implemented according to international practices and the Convention on National Inheritance for the International Treaty in 1978.

After the General election for national reunification in 1976, the Socialist Republic of Vietnam legally inherited the whole Vietnamese territory, including Hoang Sa and Truong Sa archipelagos according to the Convention on the National Inheritance for the International Treaty in 1978.

The above arguments clearly show that, although it is not the Geneva Agreement of 1954 that had created two states on the territory of Vietnam, as it was noted by Giebel⁽¹⁰⁾, their existence the in the 1954 - 1976 period is a historical reality. As both Hoang Sa and Truong Sa archipelagos belonged to the territory administered by the ROV; the DRV’s actions during this period did not affect the sovereignty of Vietnam over them. This reality also helps to clarify the questions raised by some researchers⁽¹¹⁾ regarding the continuity of Vietnam’s sovereignty over the two archipelagos.

From historical and legal evidence, we can draw some conclusions as follow:

Firstly, in the period from 1945 to 1954 there existed two political entities as states on the territory of Vietnam. In the period from 1954 until the reunification of the country in 1976, these political entities administered two separate parts of the territory of Vietnam and they could be considered as two independent states with sovereignty over their managed territorial parts.

Secondly, the DRV was not the state exercising sovereignty over Hoang Sa and Truong Sa archipelagos in the 1945 - 1976 period, so operations of the DRV during this period do not affect the continuity of Vietnam’s sovereignty over these archipelagos.

Thirdly, the national inheritance of Vietnam’s sovereignty over Hoang Sa and Truong Sa archipelagos in the 1945 - 1976 period was carried out in accordance with the international law and practices.

Fourthly, the illegal occupation by China of the Eastern part of Hoang Sa archipelago in 1956, the illegal occupation by armed forces of China of the Western part of Hoang Sa archipelago in 1974 and a number of entities in Truong Sa archipelago of Vietnam in 1988 and 1995 are contrary to the international law and do not give China the title of sovereignty. Therefore, the statements of China about the evidence that Vietnam recognized China’s sovereignty over Hoang Sa and Truong Sa archipelagos, which are included in the dossier submitted by China to the United Nations, dated 9 June 2014⁽¹²⁾, are not valid.

Assoc. Prof., Dr. Vu Thanh Ca

Research Institute for the Management of Seas and Islands,

General Department of Seas and Islands of Vietnam