The right to acquire territory over the two archipelagos of Hoang Sa and Truong Sa

(Baonghean.vn) -Question 28. What are the legal principles to prove the right to acquire territory over the Hoang Sa and Truong Sa archipelagos in international law and practice?

Reply:As mentioned above, the 19B2 UN Convention on the Law of the Sea is not a legal basis for resolving territorial sovereignty disputes over the Paracel and Spratly Islands. However, sovereignty over these two archipelagos cannot be ignored. Because this is closely related to the situation in the East Sea.

Therefore, it is necessary to learn about the legal principles related to the right to acquire territory in international law and practice to answer the question of which country has sovereignty over these two archipelagos?

Truong Sa Lon Island in the Truong Sa archipelago belongs to Vietnam's sovereignty. Illustration photo: TNO

In the long history of development of international law, the principles and legal norms establishing territorial sovereignty have been formed on the basis of international practice, including

Methods of territorial acquisition.

Since the 16th century, the dispute over the sphere of influence between newly developed and powerful countries such as the Netherlands, England, France... and Spain and Portugal became fierce, so Pope Alexander VI signed the Decree on May 4, 1493 dividing the sphere of influence for Spain and Portugal outside of Europe.

Faced with that situation, maritime powers have found a legal principle applicable to the acquisition of territory for the territories they have just discovered. That is the principle of "right of priority to possession", also known as the principle of "right of discovery". This principle gives priority to the possession of a territory to the country that first discovered that territory. However, in reality, the principle of "right of discovery" has never by itself brought national sovereignty to the country that discovered that new territory. Because, people cannot determine what is a discovery? the legal value of discovery? who discovered it first? what is used to mark that discovery?...

Therefore, discovery was quickly supplemented by nominal occupation, meaning that the country that discovered a territory had to leave traces on the newly discovered territory. However, the principle of "nominal occupation" not only could not fundamentally resolve the complex disputes between the great powers over the "promised lands", especially the territories in Africa and the islands located thousands and tens of thousands of nautical miles away from the mainland, but also increasingly led to more fierce confrontations between the great powers because people could not explain specifically when the "nominal" was established and how it existed.

Therefore, after the 1885 African Conference of 13 European countries and the United States and after the session of the Institute of International Law in Lausanne (Switzerland) in 1888, it was agreed to apply

apply a new principle of acquisition. That is the principle of "real possession".

Articles 3, 34 and 35 of the Berlin Convention signed on June 26, 1885 determined the content of the principle of real possession and the main conditions for real possession.

as follows:

- "Notice of occupation must be given to the signatory States of the said Convention";

- "The State which has taken possession of the territory must maintain over it a power sufficient to ensure that the rights of the occupying State are respected...".

The Declaration of the Lausanne Institute of International Law in 1888 emphasized: "...any occupation that wants to create a title of sovereignty... must be real, that is, real, not nominal". It was this Declaration that made the principle of real occupation of the Berlin Convention universal in international law to consider and resolve territorial sovereignty disputes between countries in the world.

The main contents of the principle of effective possession in international law include:

1. The establishment of territorial sovereignty must be carried out by the state;

2. The occupation must be carried out peacefully on territory that is derelict (res nullius) or on territory that has been abandoned by a state that previously possessed it (derelicto). The use of force to acquire territory is illegal;

3. The occupying State must exercise its sovereignty to the necessary and minimum extent appropriate to the natural conditions and population of that territory;

4. The exercise of sovereignty must be continuous and peaceful.

Due to the reasonableness and strictness of this principle, although the Saint Germain Convention of August 10, 1919 annulled the Berlin Convention of 1885 because the world no longer had terra nullius, jurists and international judicial bodies still applied this principle to resolve sovereignty disputes over islands. For example, the Permanent Court of Arbitration of the Hague in April 1928 applied this principle to resolve the Palmas Island dispute between the United States and the Netherlands or the judgment of the International Court of Justice of the United Nations in November 1953 on the sovereignty dispute between the United Kingdom and France over the Minquiers and Ecrchous Islands...

More recently, the International Court of Justice decided in favor of Malaysia in its case against Indonesia in December 2002 over sovereignty over Pulau Ligitan and Pulau Sipadan because the Court found that Malaysia had routinely carried out a series of state activities.

Based on the above legal principles, compared with the process of establishing and exercising sovereignty over the Hoang Sa and Truong Sa archipelagos raised by the disputing parties, we will certainly have objective and scientific comments on the right to "acquire territory" over these two archipelagos.

According to Q&A on Vietnam's Law of the Sea

(To be continued)