Regarding a provision in International Law
(Baonghean.vn) - China's use of force to invade the Paracel Islands and some islands of the Spratly Islands belonging to Vietnam violates modern international law, specifically Article 2, Paragraph 4 of the United Nations Charter.
January 19, 2024 marked the 50th anniversary of the Chinese government's illegal occupation of Vietnam's Paracel Islands by force. A viewpoint shared on social media is as follows:"According to international law, if there is a territorial dispute and there is a gap of 50 years or more between the protests, then the territorial claims become invalid. Vietnam's Paracel Islands have been occupied by China for 50 years, but Vietnam has not filed any protests or lawsuits with the International Court of Justice or the International Tribunal for the Law of the Sea. Without any protests or lawsuits, according to international maritime law, Vietnam is considered to have permanently lost the Paracel Islands and some islands in the Spratly Islands to China..."
Is this true?
International law reinforces the principle of sovereign equality among all states.
International law, also known as international law, is a collection of norms, rules, and customs that regulate the relationships and interactions between subjects participating in international relations. It is a combination of principles governing relations between states in various fields such as armed conflict, human rights, maritime and island affairs, space, trade, territorial borders, and diplomatic relations. International law norms create a common framework within which subjects of international law operate and contribute to the stable, organized, and consistent existence of international relations in general.
International law also provides normative guidelines as well as common methods, mechanisms, and conceptual language for international actors, primarily sovereign states, but also other international organizations.
Treaties are one of the primary sources of international law. If states do not have equal influence in treaty-based international organizations, this means that the will of a powerful state will prevail over a smaller, weaker state. Therefore, legal equality is meaningless if it cannot translate into real equality, at least at the level of lawmaking within international organizations.
In particular, the United Nations Charter sets out the fundamental principles of modern international law, among which the following are noteworthy:"Strictly restrict the right to use force against other countries."and"The seizure of territory by force is strictly prohibited."
Thus, international law is established to reinforce the principle of sovereign equality among all states. Therefore, it also restricts certain actions of subjects of international law, such as preventing states from engaging in conduct inconsistent with their international obligations.
Modern international law has criticized and rejected the principle of acquiring sovereignty by prescription, as it has been repeatedly exploited to justify acts of aggression. The use of force to occupy another country's territory never confers legitimate sovereignty on the nation using force.
Therefore, the Chinese government's occupation of the Paracel Islands and some islands in the Spratly Islands by force, no matter how long it lasts, remains illegal.
Using force to invade is an act contrary to international law.
The acquisition of territory is the process of establishing a nation's sovereign geographical boundaries over a new territory in a manner consistent with the principles of international law. The establishment of national sovereignty over territory must adhere to certain principles of international law. Therefore, the acquisition of territory must also comply with the fundamental principles of international law. One of these fundamental principles is “The use of force or the threat of force is prohibited..
This principle itself was formed during the struggle against fascism and has been affirmed in the United Nations Charter. Initially, this principle reflected the desire of peoples to establish a just international order after the war. Resolution 26/25 (1970) of the United Nations General Assembly on the fundamental principles of international law clearly stated:The territory of a nation cannot be the subject of acquisition by another nation through the threat or use of force. The acquisition of territory through the threat or use of force is not recognized as legitimate.
Despite claiming sovereignty over the Paracel and Spratly Islands (China's names for Vietnam's Hoang Sa and Truong Sa archipelagos), the Chinese government lacks any contemporary written documents to prove this claim. Even more significantly, the writings of prominent Chinese figures consistently affirm that the Paracel and Spratly Islands belong to Vietnam, as evidenced by the historical records of China.Overseas ChronicleThe maps of Venerable Thich Dai San, such as those from the early Qing Dynasty to the end of the Republic of China, all depict the southernmost point of China as only reaching Hainan Island (Qingzhou Island).
Therefore, China's use of force to invade the Paracel Islands and some islands of the Spratly Islands belonging to Vietnam violates modern international law, specifically Article 2, Paragraph 4 of the United Nations Charter. According to this article, the use of force to occupy another country's territory never confers legitimate sovereignty on the nation using force. Thus, it is clear that the act of using force to seize territory has no international recognition whatsoever.
Regarding the legal basis and sovereignty of Vietnam over the Hoang Sa and Truong Sa archipelagos, based on the historical and scientific evidence presented above, it is affirmed that Vietnam has consistently held sovereignty over both archipelagos throughout history. Professor Monique Chemiller Gendreau, from the Faculty of Public Law and Political Science at the University of Paris VII, affirmed that:“Vietnam’s rights are inherent and certain, even if China’s ambitions and claims were concretized by occupation by force… The arguments that China has put forward so far do not allow for the confirmation of the existence of ancient legal ties between the Chinese imperial court and these territories, which today can be understood as ties of sovereignty.”[*].
Vietnam's sovereignty over the Paracel and Spratly Islands has been affirmed early, continuously, and consistently throughout history, despite the loss of many ancient Vietnamese documents due to ongoing wars. However, the remaining documents and official historical records are abundant, objective, scientific, and consistent, sufficient to prove Vietnam's sovereignty over the Paracel and Spratly Islands. Meanwhile, China, although claiming sovereignty over the Xisha and Nansha (China's names for the Paracel and Spratly Islands), has not presented any contemporary written documents to substantiate this claim.
More importantly, the writings of prominent Chinese figures all affirm that the Paracel and Spratly Islands belong to Vietnam's sovereignty. These writings have created a body of written documentation with scientific, historical, and legal basis, enabling the Socialist Republic of Vietnam to reaffirm its sovereignty over the Paracel and Spratly Islands. Through this system of scientific and historical evidence, the Vietnamese government has affirmed that the Paracel and Spratly Islands have been under Vietnam's control in the past, present, and future.
Therefore, it can be stated with certainty that China's use of force to occupy the Paracel Islands in 1974 and the Spratly Islands in 1988 violated three principles recognized by modern international law simultaneously:The principle prohibiting the threat and use of force, and the principle of national inviolability and territorial integrity.andprinciple of national self-determinationThose actions are clearly condemned by international law and progressive public opinion worldwide. Therefore, those illegal actions can never be a legitimate basis for the Chinese government's sovereignty claims.
Furthermore, historical records from Vietnam, China, and Western countries clearly demonstrate that the feudal Vietnamese state established sovereignty over the Hoang Sa and Truong Sa archipelagos very early and continuously. Therefore, the current occupation of the Hoang Sa and Truong Sa archipelagos by neighboring countries such as China, Taiwan, the Philippines, Malaysia, and Brunei, either wholly or partially, is a form of possession by prescription. This means that this method of acquisition is formed from the effective possession of territories that are not ownerless, or territories acquired illegally, or territories where the legality of the acquisition was unclear at the time of acquisition. Therefore, the fact that the Socialist Republic of Vietnam consistently affirms its sovereignty over the Hoang Sa and Truong Sa archipelagos, and repeatedly protests with the same content, has created a legal consequence: these countries cannot legally acquire the Hoang Sa and Truong Sa archipelagos from Vietnam.
[*]Vietnam Military History Institute (2016), The process of exploration, establishment, exercise and protection of Vietnam's sovereignty over the Hoang Sa and Truong Sa archipelagos (Selected from Military History Journal), People's Army Publishing House, Hanoi, p. 404.
