Territorial claim

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