Territorial claim
Having written four times in The Jakarta Post, in the last three years, criticizing China's territorial claims in the South China Sea, I found last week's statements by Foreign Minister Ali Alatas truly heartwarming.
He stressed that there was certainly no need for Indonesia to accept China's offer to discuss border demarcation in the South China Sea simply because Indonesia does not share a border with China. He further declared that, as far as Indonesia is concerned, the Chinese frontier ends well to the north of Indonesia's territory.
However, another interesting development in the territorial dispute, as reported in the Kompas daily on June 22, 1995, is concerned with the recent publication of a paper by Mr Pan Shiying, a senior researcher at the Chinese Institute for Strategic and International Studies.
He wrote that those islets in the South China Sea had been discovered and owned by the Chinese people since approximately 100 BC (during the Han Dynasty) and were, subsequently, administered from Hainan island.
He decried certain South East Asian claimants for basing their claims on the principle of geographical proximity. And to support his views, he cited the examples of some Aegean islands of Greece and the Channel islands of Britain.
He pointed out that those islands belong to Greece and Britain despite the fact that they are relatively far from the Greece mainland and Britain, but very close to the coasts of Turkey and France respectively.
Accepting for the moment that it was the Chinese who discovered those islets more than 2000 years ago, I believe Mr Pan Shiying overlooked a simple but well-established principle of international law. The principle is that mere discovery of an unappropriated territory is not sufficient to create a title because discovery alone does not put the discoverer in control of the territory discovered, however much he may desire or intend to do so.
To make the title legally valid, the discovery must be followed by a long period of effective occupation. Alternatively, regardless of the question of discovery, a sovereignty title may also be accepted by virtue of a long and continuous possession or de facto occupation, which in itself has the effect of extinguishing any prior title to the territory.
The above considerations and rules of international law would readily explain why those Aegean and Channel islands belong to Greece and Britain in spite of their very close proximity to other countries.
In fact, I would add a similar case about the British occupied Falkland, or Malvinas islands in the South Atlantic. These islands are located only 300 miles off the southern coast of Argentina but 10,000 miles away from Great Britain, yet the latter claims sovereignty under international law on the basis of, I quote, "continuous and effective possession, occupation and administration of the islands since 1833."
It seems clear by analogy that if China wants to claim sovereignty over the Spratly and Paracel islands on historical grounds, it should do so in a way similar to that of the British claim on the Falklands. Unfortunately for China, the missing link in its claim is that there never was any "continuous and effective occupation" of the islands by the Chinese and, therefore, its claim cannot be accepted by international law.
Besides, if the Chinese really did think that they owned the islands, why was it that they did not protest when French Indo- China, the predecessor state of Vietnam, legally annexed and actually occupied the Paracel islands and some of the Spratly islands in the early 1930's?
MASLI ARMAN
Jakarta