1. Introduction
The People's Republic of China (PRC) and Vietnam present conflicting historic titles to the Paracel Islands and the Spratly Islands in the South China Sea. The PRC's claim to ‘indisputable sovereignty over the islands in the South China Sea and the adjacent waters, and . . . sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil’ derives from history.Footnote 1 The claim can be traced back to China's discovery of the islands during the Tang Dynasty (206 BC–220 AD), its administrative incorporation of the islands during the Song Dynasty (960–1127 AD), and its enforcement of the tributary system during the Ming (1367–1644 AD) and Qing (1644–1911 AD) dynasties upon ‘six southern barbarian peoples’,Footnote 2 including Annam (Vietnam),Footnote 3 lying along the coasts. Vietnam's claim to the Paracel Islands and Spratly Islands equally is rooted in roughly the same period of history.Footnote 4 These competing claims of the PRC and Vietnam clearly are based on historic title as ancient title ‘that has so long been established by common repute that this common knowledge is itself . . . sufficient’,Footnote 5 for it denotes immemorial possession that permits no evidence of a situation that ‘was ever different [as] no living person has ever heard of a different state of affairs’.Footnote 6 Such historic title as ancient title is distinct from historic title that, over time, ripened or consolidated through the exercise by a state of ‘authority which is both continuous and peaceful’.Footnote 7 Nevertheless, title based on historical consolidation may be invoked to confirm a historic title.Footnote 8 This article explores the different international judicial proceedings that have involved historic title to territory and applies the generalizations from these cases to the South China Sea dispute over the Paracel Islands and the Spratly Islands between the PRC and Vietnam.
The historic title claimed by the PRC and Vietnam emerged within an ancient tributary system where China as the middle kingdom was suzerain, while Vietnam and the other countries in the peripheries were vassals.Footnote 9 Some commentators have suggested that the acts of discovery or occupation of China and Vietnam be assessed in light of the rules and practices of the ancient tributary system with regard to territorial acquisition.Footnote 10 By such rules and practices, did China and Vietnam effectively acquire the Paracel Islands and the Spratly Islands in the South China Sea? In the wake of colonialism, did China and Vietnam maintain their respective titles? For this article, the more fundamental question is whether the rules of non-Western normative systems, such as the tributary system of China and Vietnam, can ever be applied to determine the validity of historic titles. There are a number of cases where international courts and international arbitral tribunals have traced the origin of a historic title to a non-Western normative system.Footnote 11 In weighing the validity of those titles, the tribunals were uneven in their appreciation of non-Western rules of territorial acquisition, as this article shows.
The first aim of this article is to draw lessons from international judicial proceedings in which claims to territorial sovereignty were based on historic titles generated within non-Western normative systems predating colonialism and modern international law. This article asks the following question: to what extent did the court or tribunal recognize the existence of such non-Western normative systems and apply their rules of territorial acquisition? Under the first segment of the inter-temporal principle of international law, the creation of sovereign title by an act of discovery or occupation in the distant past ‘must be appreciated in the light of the law contemporary with it, and not of the law in force at the time when a dispute in regard to it arises or falls to be settled’.Footnote 12 The exact nature of the law contemporary with the act of discovery or occupation is the subject of much discussion. For Lindley, that law would require of an original holder of primitive title no less than membership in the family of civilized nations,Footnote 13 while for Schwarzenberger, the original holder should have international legal personality in order to enjoy recognition of its territorial title on the international level.Footnote 14 For AnandFootnote 15 and Anghie,Footnote 16 India, China, and Assyria were denied membership in the community of nations on account of their subjugated status.Footnote 17 However, these nations enjoyed advanced civilizations that relied on sophisticated principles of international relations for their continued existence – principles that should now be accorded some weight when determining the validity of their territorial titles.Footnote 18 In the Western Sahara advisory opinion, the International Court of Justice (ICJ) agreed with Morocco that international law does not require the original titleholder to be some particular form of state in order to be deemed capable of acquiring territory.Footnote 19 However, for the purpose of determining whether such an entity is capable of exercising sovereignty, the ICJ determined that its structure is relevant evidence.Footnote 20
Under the second segment of the inter-temporal principle of international law, the continued existence of a sovereign title at the critical date or at the time of crystallization of the dispute is determined ‘by the evolution of the law’ – for example, by the development of the ‘later law’Footnote 21 requiring effective possession.Footnote 22 The application of this later law usually follows from the express submission by the parties in their agreement that gives the forum jurisdiction over the dispute.Footnote 23 However, for the PRC and Vietnam, even without their express submission, the application of modern international law to test the subsistence of their historic titles is inescapable. Colonialism imposed upon them the customary rules of effective occupation. War forced upon them the treaty law of cession and relinquishment. Under modern international law, which between the PRC and Vietnam effectively maintained its title, if any? At the end of colonialism and war, did title revert to either of them? This article aims to answer these questions. This article also aims to examine how the rules of territorial acquisition under modern international law are applied to determine the loss, cession, or transfer of historic title. In several cases, original titles did not survive the supervening events of colonization and war. All of these prior examples might be useful in determining what should happen with the dispute between the PRC and Vietnam over the Paracel Islands and the Spratly Islands in the South China Sea.
This article is divided into six parts, including this brief introduction and an equally brief conclusion in sections 1 and 6 respectively. Section 2 outlines the two strands of the inter-temporal principle as applied to territorial disputes. Under this principle, the origins of historic title that are based on acts of discovery or occupation performed in the distant past are examined in light of contemporary rules of territorial acquisition.Footnote 24Section 3 discusses the cases in which international courts and tribunals have taken into account non-Western normative systems to determine when and whence historic titles originate. Section 4 follows the status of these historic titles through such pivotal periods as colonization, war, and decolonization. Section 5 examines how the Western powers dealt with the claims to historic title of the People's Republic of China and Vietnam during the colonial period in light of the rules on territorial acquisition. The concluding section underscores that the validity of historic title generated within non-Western normative systems, such as the tributary system between China and Vietnam, depends on whether the original titleholder was a state or some central authority that performed acts of sovereignty over the territory to the exclusion of other powers. In other words, the non-Western normative systems operating at the time that historic title was created generally are not dispositive of the question of historic title. Instead, the disputant who can provide the earliest evidence of sovereign control over the territory in question to the exclusion of other sovereign powers will triumph.
2. The inter-temporal principle of international law
In resolving territorial disputes, a common difficulty is that one set of rules governs the creation of title in the distant past and another set of rules ascertains the preservation of the title in the current period.Footnote 25 This difficulty is magnified when, as in the territorial dispute between the PRC and Vietnam, the first set of rules was formulated in a tributary system whose concept of territorial sovereignty is not well understood,Footnote 26 while the second set of rules consists of treaty law or customary law which, according to Anand, are likely to be impositions upon countries like the PRC that were not permitted to participate, much less give consent, to the development of modern international law.Footnote 27 One possible example of such an imposition is the San Francisco Treaty, which dealt with the status of the Spratly Islands and the Paracel Islands without the participation of China.Footnote 28
To address this difficulty, the sole arbitrator in the Island of Palmas case Max Huber adopted a two-segment inter-temporal principle of international law specifically applicable to territorial disputes:
As regards the question which of different legal systems prevailing at successive periods is to be applied in a particular case (the so-called intertemporal law), a distinction must be made between the creation of rights and the existence of rights. The same principle which subjects the act creative of a right to the law in force at the time the right arises, demands that the existence of the right, in other words its continued manifestation, shall follow the conditions required by the evolution of law.Footnote 29
The two-segment principle was necessitated by the fact that the discovery of the island took place three centuries prior to the critical date of the dispute, when effective occupation already was an indispensable element of title.Footnote 30
The Island of Palmas was claimed by the United States based on title ceded to it by Spain.Footnote 31 Spain had acquired original title by discovery of the island in 1526,Footnote 32 and Spain ceded it to the United States under the 1898 Treaty of Paris.Footnote 33 The Netherlands challenged the claim of the United States based on the argument that, in 1898, Spain did not have title to the island to cede to the United States.Footnote 34
The arbitrator separately examined the status of the original title that Spain acquired by discovery of the islands in 1526 and the status of the title when Spain ceded the island in 1898.Footnote 35 Given the time lapse of almost three centuries between discovery and cession, the arbitrator acknowledged that Spain's acquisition of title by discovery had to be ‘determined by the rules of international law in force in the first half of the 16th century’,Footnote 36 while the United States’ acquisition of title by cession in 1898 had to be weighed against ‘the view that has prevailed . . . since the 19th century, [that] an inchoate title of discovery must be completed within a reasonable period by the effective occupation of the region claimed to be discovered’ and that such an inchoate title ‘should not prevail over the continuous and peaceful display of authority by another state’.Footnote 37
The arbitrator determined that in 1526 the Spanish explorer Garcia de Loaisa saw the island and gave it the name Island of Palmas.Footnote 38 However, under the prevailing rule at that time, discovery gave rise only to an inchoate title, which involved a claim to sovereignty through cession or conquest.Footnote 39 Spain failed to perfect its inchoate title, for it never landed on the island, took possession of it or contacted its native inhabitants.Footnote 40 In contrast, the Netherlands openly, peacefully, and continuously exercised sovereignty over the island.Footnote 41 It entered into contracts with the ‘native princes or chiefs of people’ for cession of the island.Footnote 42 These contracts were not treaties between equals, for they were entered into by the Netherlands with a group of people who were not recognized as a member of the community of nations.Footnote 43 Not being treaties, the contracts did not generate rights and obligations, such as title to territory.Footnote 44 Nonetheless, the contracts facilitated the creation of a colonial protectorate whereby the inhabitants preserved their internal organization, specifically the status of their native chiefs, while the Netherlands exercised sovereignty over them.Footnote 45 Specifically, the Netherlands monopolized navigation and commerce, conducted foreign relations, and exercised exclusive authority over the inhabitants of the island.Footnote 46 Thus, as regards other states, the Netherlands exercised suzerain powers sufficient to justify its ‘considering the vassal State as part of [its] territory’.Footnote 47
In the subsequent applications of the inter-temporal principle, the disputes involved Western powers contending for territories in Europe. In the Eastern Greenland case, the sparsely populated island of Eastern Greenland was claimed by Norway based on an original title traced to the occupation and settlement of the island in the twelfth century by Eric the Red, a Norwegian.Footnote 48 The Permanent Court of International Justice (PCIJ) did not accept occupation by a private individual as a basis of an original title, for in the twelfth century
the modern notions of territorial sovereignty had not come into being . . . [and it] is unlikely that either the chief or the settlers in these colonies drew any sharp distinction between territory which was and territory which was not subject to them.Footnote 49
In contrast, in the Minquiers and Ecrehos case, the tribunal recognized the original title to the islands of the Duke of Normandy.Footnote 50 The United Kingdom traced its ancient title to the Minquiers and Ecrehos islands to William Duke of Normandy who conquered England and united it with the Duchy of Normandy and the Channel Islands.Footnote 51 For France, however, long before William conquered England, the Channel Islands, including the Minquiers and Ecrehos islands, were already part of the Duchy of Normandy, which was under the feudal title of the King of France.Footnote 52 Even assuming that it was William who united the Channel Islands to the Duchy, William and all the Dukes of Normandy and Kings of England were vassals of the King of France.Footnote 53 As vassals, the Kings of England held the Duchy, along with the disputed islands, in fee for their suzerain, the King of France.Footnote 54 These arguments of the parties brought to the fore the issue of whether a vassal can claim territory in derogation of a claim by the suzerain – an issue similar to that facing the PRC and Vietnam over the Spratly and Paracel islands. Unfortunately, the tribunal avoided resolving the issue, for it found that even if the King of France were to get the islands through original feudal title, such title was superseded by the dismemberment of the Duchy of Normandy,Footnote 55 beginning in 1204 when the Anglo-Norman military was removed from Continental Normandy, but held on to the islands.Footnote 56 Thus, for the tribunal, what was of decisive importance was ‘not indirect presumptions deduced from events in the Middle Ages, but the evidence which relates directly to the possession of the [islands]’.Footnote 57
The evidence in question consisted of a charter dated 1200 by virtue of which the baron Piers de Preaux received the fief that was associated with the Channel Islands from the English King.Footnote 58 In 1203, Piers de Preaux issued a charter granting the Abbey of Val-Richer the Ecrehos in frankalmoin.Footnote 59Frankalmoign is tenure to ecclesiastical land in exchange for spiritual or charitable service.Footnote 60 The United Kingdom contended that these dispositions under the charters were evidence of exercise by England of sovereignty over the islands.Footnote 61 France countered that the 1203 Charter severed Ecrehos from the fief of Piers de Preaux and the suzerainty of the King of England, and transferred it (Ecrehos) to the suzerainty of the King of France.Footnote 62 France claimed that in 1203 the French King had occupied Continental Normandy and succeeded to the rights of the Duke of Normandy. As the Abbey of Val-Richer is located in Continental Normandy, the Abbey and, with it, Ecrehos came under the protection of the French King.Footnote 63
To determine the effect of the 1200 and 1203 charters on the status of Ecrehos, the tribunal applied the principle of inter-temporality and referred to prevailing Norman laws and customs on frankalmoign as written in the thirteenth century Grand Cotumier de Normandie.Footnote 64 The 1203 charter was a grant in frankalmoign because, according to Piers de Preaux, the purpose of the grant was ‘for the salvation of the soul of John, illustrious king of England, who gave me the islands, and for the salvation of the souls of myself and of my father and mother and of all my ancestors . . .’Footnote 65 Under Chapters 28 and 32 of the Grand Cotumier de Normandie, the grantor in frankalmoign retains ‘patronal domain’ over the ecclesiastical land.Footnote 66 Hence, the tribunal held that the 1203 charter did not pass the islands to the French King, for Piers des Preaux ‘continued to hold the Ecrehos as a part of his fief of the Channel Islands, with the Abbot of Val-Richer as his vassal and the King of England as his overlord’.Footnote 67
With regard to evidence of possession of the Minquiers islands, the tribunal noted certain entries, dated in the 1600s, in the rolls of the Manorial Court of Noirmont, an English court.Footnote 68 The entries dealt with wreckages around the islands.Footnote 69 Referring once more to the Grand Cotumier de Normandie, specifically to the provisions on wreckage, the tribunal held that the exercise of jurisdiction by the Noirmont court was a manifestation of English sovereignty over the islands, for under ancient Norman customs all wrecks found within the fief of the Duke of Normandy inured to his benefit.Footnote 70
It is important to note that the Grand Cotumier de Normandie is a codification of the customary laws of Continental Normandy prior to its separation from France.Footnote 71 It hardly can be considered modern international law. Yet, it was applied to decide a claim to historic title. This is an interesting point to keep in mind when analyzing six cases in the next part of this article.
In sum, under the principle of inter-temporality, norms across history and culture can be relevant to the determination of the validity of historic title. In the Minquiers and Ecrehos case, the tribunal applied feudal Norman customs in the thirteenth century to determine that the act of the King of England, through Piers de Preaux, of subjecting Ecrehos to tenurial rights was an exercise of territorial sovereignty. However, in the Eastern Greenland case, occupation in the twelfth century by individual settlers who were believed to have no concept of territory did not give rise to original title in favour of Norway. Moreover, in the Island of Palmas case, even under the principle of inter-temporality, whatever tribal rules on territory that may have existed among the native inhabitants of the island were not considered for the purposes of determining existing title to the territory. In the view of the arbitrator there, the native inhabitants were not part of the community of nations, and their occupation of the island did not constitute territorial title under international law. Thus, their island was susceptible to the inchoate title that Spain acquired by discovery. Likewise, the contracts of suzerainty that the native inhabitants entered into with the Netherlands did not imply that the native inhabitants had title to the territory; the contracts merely allowed them to maintain their internal organization while under Dutch rule. Thus, while it is acknowledged that historic titles can be generated within non-Western normative systems, the validity of such historic titles would depend on whether they were held under a concept of territorial sovereignty. This element is reiterated in the cases that are analyzed in the following section of this article.
3. Validity of historic title under the inter-temporal principle
In the review of cases contained in this section, the focus is on how international courts and tribunals have assessed the value of historic titles that are rooted in non-Western pre-colonial normative systems. These normative systems consist of the tribal system in Cameroon v. Nigeria Footnote 72 and the Western Sahara advisory opinion; the Islamic system in Eritrea v. Yemen; the sultanate system in Malaysia v. Indonesia Footnote 73 and Malaysia v. Singapore;Footnote 74 and the tribute system in Qatar v. Bahrain.Footnote 75 The purpose of the analysis provided in this section is to highlight that the validity of historic title typically depends on whether the original titleholder was capable of exercising territorial sovereignty over the disputed territory. The exercise of other forms of authority, whether religious, personal, tribal, or cultural, is not relevant to the outcome of these cases.
3.1. Cameroon v. Nigeria
One disputed territory in Cameroon v. Nigeria was the Bakassi peninsula, which was among the various territories in the Niger delta under the Kings and Chiefs of Old Calabar.Footnote 76 On 10 September 1884, by virtue of a treaty between the Calabar Kings and Chiefs and Great Britain, these territories, including Bakassi, were placed under a protectorate system,Footnote 77 which were later incorporated into the British Protectorate of the Niger Districts.Footnote 78 Around that same time, there were other European powers in Africa, notably Germany, that had colonized the neighboring country of Cameroon. To avoid conflict, Great Britain and Germany entered into various boundary agreements that impacted the boundaries of their African territories.Footnote 79 One of several agreements relevant to Bakassi was the Anglo-German Agreement of 11 March 1913, which demarcated the Anglo-German Boundary between Nigeria and Cameroon and placed Bakassi on the side of Cameroon.Footnote 80 After Germany's defeat in the First World War, Cameroon, including Bakassi,Footnote 81 became a British mandate.Footnote 82 Following the Second World War, Cameroon became a British trusteeship.Footnote 83 Throughout these changes, Bakassi remained under Cameroon.
Both Cameroon and Nigeria became independent in 1960.Footnote 84 Cameroon claimed that upon independence it succeeded to title over the Bakassi Peninsula previously held by Germany and Great Britain.Footnote 85 Nigeria claimed that upon independence it succeeded to the ancient title long held by the Calabar Kings and Chiefs over the Bakassi Peninsula, which was retained by them notwithstanding the 1884 protectorate treaty and the 1913 Anglo-German Agreement.Footnote 86 The tribunal upheld the conventional title of CameroonFootnote 87 and noted that even Nigeria recognized this title.Footnote 88 The tribunal did not accept the historical title of Nigeria.Footnote 89
In its Counter-Memorial, Nigeria described that, immediately before the 1884 protectorate treaty, the Old Calabar was composed of various city states with separate international legal personality.Footnote 90 Founded around 1400 by the settlement of Efik tribes,Footnote 91 the Old Calabar was organized into patriarchal ‘houses’ headed by an elected king or chief.Footnote 92 These kings and chiefs formed an Ekpe society that oversaw the religious and civic life of the Efik community,Footnote 93 but when it came to the internal affairs of their houses, each ruling king or chief was independent.Footnote 94 Old Calabar remained an ‘acephalous federation’ of various towns acting as political units under leaders who held complete sovereign power over their peopleFootnote 95 and exercised jurisdiction, including powers of taxation and trade, within fixed territories that cover cities and dependencies,Footnote 96 including the Bakassi Peninsula.Footnote 97 Each had international legal personality, which Great Britain recognized by entering into 17 treaties with the Kings and Chiefs of Old Calabar from 1823 to 1884 and by appointing consular officers to these territories.Footnote 98
Nigeria argued that the protectorate system that was introduced by the 1884 protectorate treaty did not mean that the Old Calabar political units were absorbed by Great Britain or that their territories were annexed to it.Footnote 99 Based on various documents of the British Foreign Office relating to the treaty negotiation,Footnote 100 the text of the treaty itself,Footnote 101 and certain British laws on the treatment of protectorates, the city states of the Old Calabar retained their identity, although with restricted foreign relations.Footnote 102 The Old Calabar maintained its territories intact.Footnote 103 This is obvious from the fact that the Old Calabar states continued to enter into other agreements affecting parts of their territories, such as the agreements with the National African Company Ltd.Footnote 104 At no time did Great Britain acquire title to these territories, specifically to the Bakassi Peninsula.Footnote 105 Consequently, when Great Britain ceded Bakassi to Germany under the 1913 Anglo-German agreement, no title was acquired by Germany, for under the principle of nemo dat quod non habet,
in any situation where territorial title derives from a cession, the successor state will acquire a good title only if the predecessor state was itself, at the time of the transfer, the holder of a good title which it was free to transfer.Footnote 106
To resolve the claim of Nigeria to historic title, the tribunal distinguished between, on the one hand, a protectorate system in which the protected entity retained a ‘previously existing sovereignty under international law’ and, on the other hand, a protectorate system in which the protected entity was not a state exercising sovereignty over the territory but a group of ‘indigenous rulers exercising local rule over identifiable areas of territory’.Footnote 107 Under international law at that time, the protectorate treaty of the second type ‘is not an agreement between equals . . . [but] rather a form of internal organization of a colonial territory, on the basis of autonomy of the natives . . .’.Footnote 108 Moreover, such a protectorate treaty is ‘a derivative root of title’ in favor of the suzerain.Footnote 109
According to the tribunal, in the Old Calabar, it was the second type of protectorate system, which was instituted by Great Britain. The Old Calabar was occupied by a native population, but it had no state that exercised sovereignty over the territory.Footnote 110 Rather, the various lesser kings and chiefs ruled over individual townships while owing ‘general allegiance to more important Kings and Chiefs’.Footnote 111 There was no central federal power.Footnote 112 It was Great Britain that asserted sovereignty over the protectorate through the 1884 treaty and obtained title to its territories, including Bakassi.Footnote 113
In sum, the tribal system run by the Old Calabar Kings and Chiefs did not generate a historic title in favour of Nigeria. The tribunal determined that that tribal system was not a state or central authority that exercised sovereignty over Bakassi.
3.2. Western Sahara
This case is an advisory opinion that the UN General Assembly sought when, in the process of decolonization from Spain, Western Sahara was claimed by Morocco and Mauritania as an integral part of their respective territories by reason of historical ties.Footnote 114 The General Assembly asked the tribunal to determine (i) whether Western Sahara was terra nullius when Spain colonized it; and (ii) if Western Sahara was not terra nullius, whether it had legal ties with either Morocco or Mauritania.Footnote 115
To the first question, the tribunal answered that Western Sahara was not terra nullius, because at the time of colonization, it was ‘inhabited by peoples which, if nomadic, were socially and politically organized in tribes and under chiefs competent to represent them’.Footnote 116 Before addressing the second question, the ICJ laid down the following rules. First, the ICJ said that it would consider ‘not indirect inferences drawn from events in past history, but evidence directly relating to effective displays of authority in Western Sahara at the time of its colonization by Spain and in the period immediately preceding that time’.Footnote 117 Second, the ICJ said that while international law does not prescribe a particular structure for a state, ‘where sovereignty over territory is claimed, the particular structure of a state may be a relevant element in appreciating the reality or otherwise of a display of state activity adduced as evidence of that sovereignty’.Footnote 118 The following sections consider the application of these rules to the Western Sahara.
3.2.1. The nature of the Moroccan Sherifian state and its exercise of sovereignty over Western Sahara
The Moroccan Sherifian state was composed of two tribes. The Bled Makhzen were direct subjects of the Sultan, and the Bled Siba were administered by caids appointed by the tribesFootnote 119 and were relatively autonomous of the Sultan, although they regarded the Sultan as their spiritual leader.Footnote 120 The Bled Siba included the territory directly north of Western Sahara.Footnote 121 These tribes were bound by their common religion, Islam, and by their allegiance to the Sultan, through their caids and sheikhs.Footnote 122 The Bled Siba had no notion of allegiance that was territorially defined.Footnote 123
The tribunal noted that spiritual allegiance to a ruler does not make him sovereign,Footnote 124 unlike political allegiances that may signify a ruler's sovereignty, provided that such allegiance is shown by acts of acceptance of the ruler's authority.Footnote 125 The acts of sovereignty of the Sultan, which Morocco had cited, consisted of the appointment of caids, the dispatch of arms to Shiekh Ma ul-‘Aineen of Western Sahara to resist French occupation, and the allegiance of the Tekna tribes of Western Sahara.Footnote 126 However, the ICJ found that the caids whom the Sultan appointed had long been elected by their tribes and that the arming of Sheikh Ma ul’Aineen was in pursuit of an alliance against foreign invaders – an alliance in which the Sultan and the Sheikh were equals.Footnote 127 The tribunal acknowledged that the Sultan enjoyed the allegiance of the nomadic Tekna tribes that frequently traversed Morocco and Western Sahara.Footnote 128 However, such a limited extent of allegiance did not establish the sovereignty of Morocco over Western Sahara.Footnote 129
3.2.2. The nature of the Mauritanian entity and its display of internal sovereignty over Western Sahara
Mauritania admitted that there was no Mauritanian state when Western Sahara was colonized.Footnote 130 The so-called Mauritanian entity was the Bilad Shinguitti, or Shinguitti country, which was a distinct unit that had a common language, way of life, and religion.Footnote 131 Political authority in the Shinguitti was exercised by the emirates.Footnote 132 At the relevant time, it was the Emir of the Adrar who exercised political authority that extended to Western Sahara.Footnote 133 There also were autonomous tribes that settled in Western Sahara.Footnote 134 The emirates and tribes formed a horizontal structure, but cohesion was maintained through religious and cultural ties, as well as by a common set of laws on the use of waterholes, grazing lands, and agricultural lands.Footnote 135
To determine if the Mauritanian entity was capable of establishing legal ties with Western Sahara, the ICJ employed the criterion it had adopted in the Reparation for Injuries Suffered in the Service of the United Nations advisory opinion,Footnote 136 that a legal entity on the international level should have a personality distinct from its members, as well as rights it can demand its members to respect.Footnote 137 The ICJ determined that the Mauritanian entity had no personality separate and distinct from its component emirates and tribes and that it was not capable of exacting the obligations of these independent emirates and tribes.Footnote 138 The ICJ concluded that neither Morocco nor Mauritania exercised territorial sovereignty over Western Sahara at the time of colonization by Spain.Footnote 139
3.3. Eritrea v. Yemen
The territories disputed in Eritrea v. Yemen were islands, islets, and rocks in the Red Sea, with only Yemen invoking historic title over them.Footnote 140 According to Yemen, the islands were part of Bilad el-Yemen or the realm of Yemen that had been under the inherent and inalienable sovereignty of the Imam for centuries.Footnote 141 Evidence of historic title included seventeenth and eighteenth century maps depicting the islands as part of Yemen;Footnote 142 declarations made by the Imam, following the end of the second Ottoman colonial period (1872–1918), for the restoration of his full sovereignty over ‘that part of Yemen which was once under the sway of his predecessors’;Footnote 143 and the acts of implicit recognition by EritreaFootnote 144 and third states.Footnote 145
The international arbitral tribunal dismissed the claim of Yemen to ancient title.Footnote 146 The tribunal found that for ancient Yemen, the Red Sea and its islands were res communis, open to access by inhabitants from both coasts and without a ruler exercising administrative or political authority over the area.Footnote 147 Ancient Yemen held ‘little sway over the coastal areas, which were essentially dedicated to serving the flow of maritime trade between, on the one hand, India and the East Indies, and on the other, Egypt and the other Mediterranean ports’.Footnote 148 Ancient Yemen could not have asserted territorial sovereignty over the islands, for it was a ‘tribal, mountain and medieval society’Footnote 149 whose Islamic system of international law held no concept of sovereignty.Footnote 150 ‘[C]lassical Islamic law concepts . . . practically ignored the principle of territorial sovereignty as it developed among the European powers and became a basic feature of nineteenth century western international law’.Footnote 151
It is important to note that in this case there is an explicit requirement that the original holder of historic title exercise territorial sovereignty as the concept is understood in Western international law.
3.4. Malaysia v. Indonesia
Like Eritrea v. Yemen, Malaysia v. Indonesia involved a dispute over islands, Pulau Ligitan and Pulau Sipadan. Indonesia claimed historic title that was originally held by the Sultan of Bulungan and later transferred to the Netherlands by contract and transmitted to Indonesia by treaty.Footnote 152 Malaysia claimed an unbroken chain of historic titles that originated from the Sultan of Sulu and was passed on successively to Spain, the United States, Great Britain, on behalf of North Borneo, and the United Kingdom, before they vested in Malaysia.Footnote 153 The ICJ disregarded the claim to historic title of Indonesia for the contracts which its predecessor, the Sultan of Bulungan, executed in favor of the Netherlands expressly excluded the disputed islands.Footnote 154 The ICJ discussed more fully the claim of Malaysia to historic title.
According to Malaysia, although not permanently inhabited, the disputed islands Pulau Sipadan and Pulau Ligitan formed an ‘integral part of the marine economy’ of a tribe called Bajau Laut.Footnote 155 The Bajau Laut dwelt on boats and stilt houses and frequently visited the islands to fish and gather forest products.Footnote 156 The tribe owed allegiance to the Sultan of Sulu,Footnote 157 who appointed the tribe's chief.Footnote 158 Therefore, through the Bajau Laut, the Sultan's sovereignty supposedly extended to the islands, making them dependencies of the Sulu Archipelago.Footnote 159 The Sultan of Sulu held original title to the islands until 1878, when he ceded the Sulu Archipelago and all its dependencies to Spain under an agreement of peace and capitulation.Footnote 160
The ICJ determined that such ties between the Bajau Laut and the Sultan of Sulu
may well have existed but they are in themselves not sufficient to provide evidence that the Sultan of Sulu claimed territorial title to these two small islands or considered them part of his possessions . . . [n]or is there evidence that the Sultan actually exercised authority over Ligitan and Sipadan.Footnote 161
Accordingly, the ICJ did not accept that historic title to the island was in the hands of the Sultan of Sulu or that such historic title was transmitted to Malaysia.
3.5. Malaysia v. Singapore
In contrast to the unsuccessful claim to original title of the Sultan of Bulungan in Indonesia v. Malaysia, the ICJ recognized the original title of the Sultan of Johore over Pedra Branca/Pulau Batu Puteh and Middle Rocks in Malaysia v. Singapore.Footnote 162 The Sultan of Johore's original title was the basis of Malaysia's claim.Footnote 163 Specifically, Malaysia alleged that the Sultanate of Johore had been in possession of the islands since time immemorial – for example, since the establishment of the Sultanate of Johore in 1512, following the fall of the Sultanate of Malacca.Footnote 164 Immemorial possession was defined in the Meerauge arbitration as that ‘form of possession where no evidence can be adduced that the situation was ever different and no living person has ever heard of a different state of affairs . . . [s]uch possession . . . [is] unbroken and uncontested’.Footnote 165 The ICJ acknowledged that the ‘Sultanate of Johore, since it came into existence in 1512, established itself as a sovereign State with a certain territorial domain under its sovereignty in this part of southeast Asia’.Footnote 166 The ICJ cited an observation of Hugo Grotius that ‘Johore . . . has long been considered a sovereign principality [supremi principatus], so that its ruler clearly possessed the authority necessary to conduct a public war . . .’Footnote 167 The Sultan's authority extended to the disputed island through his subjects the Orang Laut, a local fishing tribe that regularly used the islands.Footnote 168 Although the Sultan may have never set foot on the islands, his display of authority through the Orang Laut was sufficient to establish territorial sovereignty over the islands that were tiny and uninhabitable, and no other sovereign power in the region challenged his possession.Footnote 169 The ICJ concluded that the Sultanate of Johore had ‘original title to Pedra Branca/Pulau Batu Puteh’Footnote 170 and Middle Rocks.Footnote 171
It is important to note that in both Malaysia v. Indonesia and Malaysia v. Singapore, Malaysia argued that while the respective Sultans did not physically occupy the disputed islands, they exercised sovereignty through the fishing tribes that owed them allegiance. Such vicarious exercise of sovereignty was found insufficient in Malaysia v. Indonesia, yet it was determined to be sufficient in Malaysia v. Singapore. The difference is that, in Malaysia v. Singapore, in addition to the personal allegiance of the Orang Laut to the Sultan of Johore, other evidence was presented to prove that the latter exercised actual territorial sovereignty over the island.Footnote 172 One piece of evidence was that in the seventeenth century the Sultan of Johore protested to the Netherlands of the latter's seizure of two junks found in the vicinity of the disputed islands.Footnote 173 Another piece of evidence was that in the nineteenth century the Sultan of Johore ceded the island to Great Britain.Footnote 174
3.6. Qatar v. Bahrain
This case offered an opportunity for the ICJ to determine whether a vassal state was capable of acquiring title to territory claimed by its suzerain. The ICJ did not make its own determination of the issue, for it adopted the 1868 Agreement between Ali bin Khalifah, the Sheikh of Bahrain, and the British Political Resident in the Gulf, as being dispositive of the matter.Footnote 175
Before 1870, Qatar, including Zubarah, was part of Bahrain,Footnote 176 and the tribal chiefs of Qatar, through Mohamed Al-Thani, Sheikh of Qatar, paid tribute to the Sheikh of Bahrain Mohomed bin Khalifah Al-Khalifa.Footnote 177 According to Bahrain, in the eighteenth century, the Al-Khalifah tribe or family left Kuwait and settled in Zubarah where they established a seat of government.Footnote 178 Toward the end of the eighteenth century, the Al-Khalifah tribe moved the government's seat to Bahrain,Footnote 179 but before Sheikh Mohamed bin Khalifah Al-Khalifa left Zubarah, he appointed a governor to rule Zubarah.Footnote 180 In 1878, the Al-Thani tribe or family of Qatar invaded Zubarah.Footnote 181 However, the Al-Khalifah tribe was able to maintain its rule on the island because of a loyal tribal confederation that the Naim tribe led.Footnote 182 Bahrain maintained that through the Naim tribe the Al-Khalifah tribe exercised sovereignty over Zubarah in accordance with ‘the international standard of contextually proportionate effective occupation and . . . the regional standard of the fealty of the inhabitants of Zubarah to the Ruler of Bahrain’.Footnote 183
Qatar denied that, despite leaving Zubarah, the Al-Khalifah tribe remained in control of the island.Footnote 184 Qatar claimed that in 1867 Sheikh Mohomed bin Khalifah Al-Khalifa invaded Qatar and destroyed two towns.Footnote 185 Put another way, the Al-Thani tribe set sail for Bahrain but Sheikh Mohomed bin Khalifa Al-Khalifa defeated them at sea.Footnote 186 Great Britain intervened, for earlier, in 1861, Sheikh Mohomed bin Khalifah Al-Khalifa had signed with Great Britain a perpetual treaty of peace and friendship whereby Sheikh Mohamed bin Khalifah Al-Khalifa undertook to refrain from all forms of maritime aggression in exchange for protection from Great Britain,Footnote 187 which was then the most powerful maritime nation in the Gulf.Footnote 188 In 1868, the British Political Resident extracted separate commitments from the Qatar Sheikh Mohamed Al-Thani and the new Bahrain Sheikh, Ali bin Khalifah Al-Khalifa, to maintain peace at sea.Footnote 189 The Al-Thani tribe agreed to return to Doha and to continue to pay tribute to Bahrain's Sheikh Ali bin Khalifah, with Bahrain's Sheikh Ali bin Khalifah admitting that his predecessor, Sheikh Mahomed bin Khalifah Al-Khalifa, had violated the 1861 peace treaty.Footnote 190 Sheikh Ali bin Khalifah agreed that Sheikh Mohomed bin Khalifah Al-Khalifa would thereafter be excluded from the government of Bahrain and that Bahrain would no longer set to sea with hostile intentions.Footnote 191 In effect, the 1868 commitments placed Qatar and Zubarah beyond the reach of Bahrain.Footnote 192
Beginning in 1870, the Ottoman Empire controlled Qatar,Footnote 193 including Zubarah.Footnote 194 Qatar's Sheikh Mohamed Al-Thani came under the protection of the Ottoman Empire and ceased to pay tribute to Bahrain's Sheikh Ali bin Khalifah.Footnote 195 For the next 40 years of Ottoman control, Bahrain's Sheikh Ali bin Khalifah was barred from exercising sovereignty over the Qatar peninsula, including Zubarah.Footnote 196 This intention to bar Bahrain from Qatar clearly was stated in the 1913 convention, which Great Britain and the Ottoman Empire signed but failed to ratify.Footnote 197
From the above facts, the ICJ concluded that Bahrain was in possession of Zubarah in the eighteenth century.Footnote 198 However, whatever title Bahrain may have originally held over Zubarah was lost after the 1868 agreement, and that, beginning in 1870, Qatar consolidated its control of the island.Footnote 199 It would seem that the regional presence of Great Britain and the Ottoman Empire literally barred Bahrain from Zubarah. The tribunal observed the following:
. . . the terms of the 1868 Agreement show that any attempt by Bahrain to pursue its claims to Zubarah through military action at sea would not be tolerated by the British . . . thereafter, the new rulers of Bahrain were never in a position to engage in direct acts of authority in Zubarah . . . Moreover, in 1895, only an armed intervention by the British stopped the Al-Thani and the Ottomans from attempting to invade Bahrain from Zubarah.Footnote 200
This modus vivendi was maintained even after the Ottoman Empire left Qatar, for in their 1913 agreement, the Ottoman Empire and Great Britain stated that the Ottoman Empire, which had renounced its claims to the Qatari peninsula, gave the Qatari Sheikh the power to govern the territory and that ‘the Government of His Britannic Majesty . . . will not permit the Sheikh of Bahrain to interfere in the internal affairs of Qatar, to violate the autonomy of that country or to annex it’.Footnote 201
Again, the 1913 agreement was signed by the parties but never was ratified; however, the tribunal held that ‘signed but unratified treaties may constitute an accurate expression of the understanding of the parties at the time of signature’.Footnote 202 In particular, the 1913 agreement was seen as ‘represent[ing] evidence of the views of Great Britain and the Ottoman Empire as to the factual extent of the authority of the Al-Thani Ruler in Qatar up to 1913’Footnote 203 and their non-recognition of ‘Bahrain's sovereignty over the peninsula, including Zubarah’.Footnote 204 In that context, Bahrain could not have maintained its presence in Zubarah, not even through the Naim tribe.Footnote 205
In sum, international judicial proceedings have traced historic title claims to their roots in non-Western normative systems. The tribunals in the Minquiers and Ecrehos case and Malaysia v. Singapore recognized the existence and validity of such historic titles. The tribunal applied medieval Norman customs both as a tool of interpretation of the status of Minquiers and Ecrehos islands and as evidence of the exercise by the English King of sovereignty over these islands. Recognition by the maritime powers of the sovereignty of the Sultan of Johore over Pedra Branca/Pulau Batu Puteh and Middle Rocks shaped the conclusion of the ICJ that historic title was vested in Malaysia. The sovereignty of the Sultan of Johore was exercised through the personal allegiance of the Orang Laut, a fishing tribe that frequently visited the islands to fish. Such personal sovereignty was reinforced by an express intention to possess and control territory. These forms of exercise of sovereignty were considered sufficient to vest historic title in the Sultan of Johore, especially as his possession was unchallenged by other powers. Conversely, in the Malaysia v. Indonesia case and the Western Sahara advisory opinion, allegiance defined by tribal or religious rather than territorial identity was considered insufficient evidence that the Sultanate of Sulu and the Moroccan Sherifian state, respectively, exercised sovereignty over the disputed territories. Bahrain also relied on what it called the ‘regional standard’Footnote 206 of personal fealty of the Naim tribe as the link between Sheikh Mohomed bin Khalifa Al-Khalifa to Zubarah in Qatar v. Bahrain. Such a link was found too tenuous to generate historic title over a piece of territory that had been occupied by the Ottoman Empire and governed by Qatar after the Ottoman Empire left. In Eritrea v. Yemen, the international arbitral tribunal doubted that original title vested in an Imam who presided over a medieval Islamic system that had no concept of ‘sovereignty title’.Footnote 207 Moreover, the disputed Bakassi peninsula in Cameroon v. Nigeria was part of Old Calabar, but as no state or equivalent central authority emerged from among its many kings and chiefs, no historic title over the disputed territory was vested in Nigeria's Old Calabar. Therefore, regardless of the period to which historic title is traced, its validity is recognized in international judicial proceedings only because of the actual exercise of sovereignty by a central authority over the disputed territory. It is this requisite element that must be fulfilled by the PRC and Vietnam to establish their claim to the Paracel Islands and Spratly Islands based on historic title, which is rooted in their ancient tributary systems, assuming the use of these prior cases as a guide.
Where historic title is recognized to have existed, the subsistence of the title at the critical date required the continued exercise of territorial sovereignty by the original titleholder and its successors-in-interest. In this regard, colonial powers had an important role to play. The following section of this article looks into the details of the Minquiers and Ecrehos case and Malaysia v. Singapore – the only two cases where historic title has been recognized.
4. Continuity of historic title under the inter-temporal principle
Qatar v. Bahrain and Eritrea v. Yemen illustrate the role played by colonialism in frustrating the formation of historic title. The previous part discussed how the presence of Great Britain and the Ottoman Empire in the Gulf prevented the Al-Khalifah tribe of Bahrain from maintaining its ties to Zubarah.Footnote 208 In Eritrea v. Yemen, the actual colonization of the disputed Red Sea islands by the Ottoman Empire quashed whatever nascent interests Yemen may have historically held in the islands. The international arbitral tribunal observed that even if it were true that the Imam held original title to the disputed Red Sea islands, the title could not have survived the period from 1872–1918 when the Ottoman Empire exercised full territorial sovereignty over the disputed islands.Footnote 209 At the time, conquest and colonization were valid forms of territorial acquisition.Footnote 210 Thus, applying the inter-temporal principle, when the Ottoman Empire took possession of the islands, it acquired valid territorial title,Footnote 211 including an entitlement to dispose of the islands.Footnote 212 When the Ottoman Empire, under the Treaty of Lausanne, relinquished its rights to the islands in favor of the ‘parties concerned’,Footnote 213 the cession resulted in a valid and effective transmission of title and prevented the reinstatement of the interests of the Imam in the islands.Footnote 214 It is true that after the Treaty of Lausanne the ‘parties concerned’ kept the status of the islands indeterminate, even up to the critical date of the dispute.Footnote 215 Notwithstanding the indeterminacy of the status of the islands, a reversion to the title of the Imam, if any, was considered untenable.Footnote 216 The tribunal concluded that the status of the islands would have to be decided based on evidence of more recent displays of sovereignty, or effectivités.Footnote 217
This aspect of Eritrea v. Yemen is particularly relevant to the dispute between the PRC and Vietnam in the South China Sea. Under the Treaty of Peace with Japan, which was signed in San Francisco on 8 September 1951,Footnote 218 Japan relinquished its rights to the Spratly Islands and Paracel Islands, without the intended recipient being named. Up to the present, the status of the islands has remained indeterminate. Meanwhile, the San Francisco Treaty has been overtaken by the customary international law on self-determination,Footnote 219 as well as the renunciation of the use of force to change territorial boundaries.Footnote 220 Bearing in mind the lesson from Eritrea v. Yemen, notwithstanding the indeterminacy of the status of the islands in the South China Sea, reversion to the historic title of either the PRC or Vietnam would seem untenable.
Where historic title has fully formed, its loss also can take place through abandonment, which is characterized both by discontinuity in the exercise of territorial sovereignty by the original titleholder or its successors-in-interest and by their acquiescence to the exercise of territorial sovereignty by another state.Footnote 221 Such abandonment of historic title transpired in Malaysia v. Singapore.
As discussed in the previous section of this article, the Sultan of Johore held historic title over the disputed islands Pedra Branca/Pulau Batu Puteh and Middle Rocks.Footnote 222 However, as at 1980, the critical date when the dispute between Singapore and Malaysia crystallized, it was found that the Sultan of Johore and his successor, Malaysia, had abandoned their title to Pedra Branca/Pulau Batu Puteh in favor of Singapore. The ICJ noted that in 1953 the Colonial Secretary of Singapore inquired with the British Adviser to the Sultan of Johore about the status of Pedra Branca/Pulau Batu Puteh,Footnote 223 and the Acting State Secretary of Johore replied that ‘the Johore government does not claim ownership of Pedra Branca’.Footnote 224 Thereafter, Singapore performed acts à titre de souverain in relation to the island, such as marine accident investigations, the regulation of visits, and the installation of communication equipment of the navy.Footnote 225 Malaysia had notice of the first and second activities, but it did not issue any protest in response to them.Footnote 226 In addition, since 1850, the Sultan of Johore and Malaysia did not perform any act of sovereignty over the island.Footnote 227 They may have visited the island but only after seeking the permission of Singapore.Footnote 228 Finally, in 1962 and 1975, Malaysia published official maps that did not include Pedra Branca/Pulua Batu Puteh within its territory.Footnote 229 According to the ICJ, a map has great value as evidence when ‘the State adversely affected has itself produced and disseminated it, even against its own interest’.Footnote 230 The ICJ concluded there that
by reference to the conduct of Singapore and its predecessors à titre de souverain, taken together with the conduct of Malaysia and its predecessors including their failure to respond to the conduct of Singapore and its predecessors, that by 1980 sovereignty over Pedra Branca/Pulau Batu Puteh had passed to Singapore.Footnote 231
However, the foregoing conduct of abandonment did not affect the Middle Rocks, which was found to have remained under the Sultan of Johore's and Malaysia's sovereignty.Footnote 232
Historic title to the Minquiers and Ecrehos islands, which the United Kingdom was determined to have held since the eleventh century, was maintained and consolidated through acts of sovereignty performed over the succeeding several centuries.Footnote 233 The tribunal found that, with respect to the Ecrehos group of islands,
in the beginning of the thirteenth century [it] was considered and treated as an integral part of the fief of the Channel Islands which were held by the English King, and that the group continued to be under the dominion of that King, who in the beginning of the fourteenth century exercised jurisdiction in respect thereof . . . [and] that British authorities during the greater part of the nineteenth century and in the twentieth century have exercised State functions in respect of the group.Footnote 234
This is in contrast to the lack of evidence that the French Government asserted sovereignty over the islands.Footnote 235 The tribunal noted that in the past France held the view that the islands were res nullius Footnote 236 – a view that is reflected in its 1820 exchange of diplomatic notes with the United Kingdom over fishing rights.Footnote 237 It was only in 1886 that France began to claim sovereignty to the islands.Footnote 238
Likewise, the tribunal determined that the Minquiers islands remained under the sovereignty of the United Kingdom. The tribunal agreed with evidence produced by the United Kingdom that
in the beginning of the seventeenth century [the islands] were treated as a part of the fief of Noirmont in Jersey, and that British authorities during a considerable part of the nineteenth century and in the twentieth century have exercised State functions in respect of this group.Footnote 239
Even France confirmed this status of the islands, for in its 1820 exchange of diplomatic notes with the United Kingdom over fishery rights, France attached a chart that labelled the Minquiers as ‘possédés par L’Angleterre’, or possessed by England.Footnote 240
In sum, out of the existing international jurisprudence that has dealt with historic title, only historic titles pertaining to Pedra Branca/Pulau Batu Puteh, Middle Rocks, the Ecrehos group of islands, and the Minquiers islands were sustained on the basis of evidence that the original titleholder exercised territorial sovereignty over these islands. However, historic title to Pedra Branca/Pulau Batu Puteh was abandoned through conduct that showed both withdrawal of sovereignty by the original titleholder and acquiescence to the sovereignty of another state. Historic titles to Middle Rocks, the Ecrehos islands, and the Minquiers islands were maintained and consolidated through consistent exercise of territorial sovereignty up to the date of crystallization of the disputes.
The claims of the PRC and Vietnam to historic title were not given due regard by the Western powers during the colonial period and after the Second World War. The next section of this article examines the claim that was addressed by the Western powers – whether the Western powers recognized either the PRC or Vietnam as having a pre-existing title in accordance with the norms of their ancient tributary system.Footnote 241
5. Insights for PRC and Vietnam
As a preliminary note, in contrast to other articles,Footnote 242 this article treats the claim of the PRC as a purely territorial claim based on historic title, rather than as a maritime claim based on the concept of historic waterFootnote 243 or historic bay.Footnote 244 In its 1958 Declaration of China's Territorial Sea, the PRC expressly accepted the presence of high seas that ‘separated . . . the mainland and its coastal islands’ in the South China Sea.Footnote 245 This precludes the PRC from claiming that the South China Sea or any part of it is historic water or historic bay.Footnote 246
The PRC cites ancient documents that name the South China Sea as evidence it was the first to discover the islands of the South China Sea.Footnote 247 As the argument goes, the discovery established its historic title, for under the rules at that time mere discovery, without more, was sufficient to give rise to territorial title.Footnote 248 In any event, discovery was subsequently reinforced in 1405 by the administrative incorporation of the islands into Chinese territory under Emperor Cheng Zu of the Ming Dynasty.Footnote 249 Pan Janwu adds that the historic title of the PRC was expressly recognized by Vietnam, which, through Vice Foreign Minister Dung Van Khiem, acknowledged in 1956, ‘according to Vietnamese data, the Xisha and Nansha Islands are historically part of Chinese territory’.Footnote 250
Vietnam cites fifteenth century maps and chronicles to claim a geographical awareness of the islands.Footnote 251 This geographical awareness was accompanied by an intention to possess and an actual occupation, at least, of the Paracel Islands, as borne out by records of organized economic exploitation of these islands by the rulers of Annam from 1702–13Footnote 252 and the planting of the flag of ‘Cochin China’ in 1816.Footnote 253 When Vietnam became a protectorate of France under the 15 March 1874 Treaty of Protectorate,Footnote 254 Vietnam's historic title to the islands was preserved through the acts of possession and occupation of France.Footnote 255
Whatever historic title the PRC or Vietnam may have held with regard the Spratly Islands did not seem to impress Britain and France, which came to dominate the South China Sea in the nineteenth century. Records from the British archives tend to show that, beginning in 1877, the two colonial powers regarded the Spratly Islands as technically terra nullius. The British view was that the Spratly Islands ‘had been discovered by her nationals’Footnote 256 for she did not believe that previously a ‘foreign State had officially claimed sovereignty over the islands’,Footnote 257 nor did she consider ‘the possibility of Chinese title’, not even when the ‘Colonial Office List as early as 1891 stated that the islands were “annually visited by Chinese junks for the purpose of collecting turtle”’.Footnote 258 Britain did not consider ‘the possibility in the 1870s that the Spratly Islands belonged to China or that China then protested [British] activities’, and this ‘may well have been due to the fact that [Britain] did not regard China at that period as fully a member of the family of nations’.Footnote 259 It is notable that Britain barely took into account Vietnamese claims to historic title to the Spratly Islands.Footnote 260
Consequently, beginning in the 1870s, Britain exercised, at the very least, some degree of authority over the Spratly Islands, as evidenced by the following. First, in 1877,
Mr Treacher (then Acting Governor of Labuan and Acting Consul-General in Borneo) registered a claim by two men . . . [to] the land and products of the Spratly Island and Amboyna Cay and gave permission, subject to the approval of the Secretary of State, to hoist the British flag over them.Footnote 261
Second, in 1889, Britain granted rights to the Central Borneo Company.Footnote 262 Third, the islands were included in the Colonial Office list beginning in 1891.Footnote 263 Finally, the Acting British Consul General in Labuan exercised jurisdiction over a murder committed by one of the men who were granted the right to exploit the Spratly Islands and Amboyna Cay.Footnote 264 It is significant that these acts of sovereignty were not protested by the PRC at that time.Footnote 265 In contrast, the PRC allegedly protested when Germany attempted to survey the islands in 1883.Footnote 266 The PRC protested also the annexation of the islands by France in 1930 and 1933,Footnote 267 and by Japan in 1939.Footnote 268 From the foregoing, it is evident that, for Britain, no historic title of China or Vietnam bound the Spratly Islands.Footnote 269
Likewise, France considered the Spratly Islands as terra nullius. In 1930, France announced simply that its navy had occupied the Spratly Islands,Footnote 270 and that by such occupation it acquired sovereignty over the islands.Footnote 271 It does not appear that France occupied the islands on behalf of Vietnam.Footnote 272 Initially, France did not recognize the claims of the PRC and Vietnam to historic title to the Paracel Islands.Footnote 273 For France, Vietnam's claim had grown stale for failure to effectively occupy the islands.Footnote 274 As for the claim of the PRC, this did not seem to have stopped France from undertaking naval patrols and planning the construction of a lighthouse on the Paracel Islands.Footnote 275 However, for economic and strategic reasons, specifically to thwart Japanese incursion into the South China Sea, France invoked the historic title of Vietnam to justify the annexation of the islands.Footnote 276
Finally, after the Second World War, when the question of title to the Spratly Islands and Paracel Islands was broached during deliberations on the San Francisco Peace Treaty, it was proposed that Japan relinquish title to the PRC, which was not a participant in the proceedings.Footnote 277 This proposal ‘was never voted upon; the President of the Conference (Acheson) ruled it out of order, the ruling being sustained by a vote of 46 to 3 with 1 abstention’.Footnote 278 Vietnam issued a statement reiterating its claim to the islands,Footnote 279 without any action being taken on the proposal.
This section of this article has demonstrated that when the Western powers first dealt with the Spratly Islands and Paracel Islands, they did not try to investigate whether the PRC or Vietnam held any title to them. After the Second World War, when claims of historic title to the islands were raised during the San Francisco conference,Footnote 280 the Western rules of territorial acquisition already were so entrenched as to bind even the PRC and Vietnam.
6. Conclusion
This article has shown that historic title as the basis of a claim to territorial sovereignty has been recognized in international judicial proceedings, albeit in only two cases that could be detected. Under the first segment of the inter-temporal principle, the claims to historic title were traced to sultanate systems in Malaysia v. Singapore and Malaysia v. Indonesia, a feudal system in The Minquiers and Ecrehos case, an Islamic system in Eritrea v. Yemen, and tribal systems in Cameroon v. Nigeria, Qatar v. Bahrain, and the Western Sahara advisory opinion. Those historic titles that were recognized in these cases originated from ancient normative systems where a state or similar central authority exercised territorial sovereignty over the disputed territory. Under the second segment of the inter-temporal principle, the subsistence of these historic titles was tested against the requirement of consistent and continuous exercise of territorial sovereignty up to the critical date when the dispute over title to the territory crystallized. In these cases, the presence of colonial powers in the territory was shown to effectively quash any nascent historic title.
The claims of the PRC and Vietnam to historic title to the Spratly Islands and the Paracel Islands can be traced to their ancient tributary system. However, it presumably will not be enough to apply the rules of these tributary systems to determine the validity of their claims. It also will have to be established that within these tributary systems a central authority existed that exercised territorial sovereignty over the islands. Vicarious possession through fishing tribes who visited the islands generally does not meet the requirement of territorial sovereignty, at least according to the case law discussed in this article. The co-existence of PRC and Vietnamese fishing tribes on and around these islands would even negate claims to exclusive possession and control. Moreover, it would have to be further established by the PRC and Vietnam that their claims to historic title survived colonialism and war. Japanese occupation of the islands and its relinquishment of the islands to unnamed recipients may well have put a decisive end to all valid claims to historic title to the Spratly Islands and the Paracel Islands by the PRC and Vietnam. While international courts and tribunals are not bound to follow these past decisions, they nevertheless show the likely path that similar fora will take when faced with a similar dispute, barring a special reason to vary from this past path. Whether such a special reason exists ultimately depends on the argumentation presented to the court or tribunal. However, at this point in time, it is difficult to envision a special reason sufficient to justify a departure from this past path.
