CONFIDENTIAL
The United Kingdom
The United Kingdom could have acquired sovereignty over Spratly Island and Amboyna Cay in 1877 only if they were then terra nullius. Although the Foreign Office investigations in 1877 showed that no foreign State had officially claimed sovereignty over the islands there is no indication that the possibility of Chinese title was considered. The Colonial Office List as early as 1891 stated that the islands were annually visited by Chinese junks for the purpose of collecting turtle''. If however China had not acquired title to the Spratly Islands before the 1870's, and the islands were therefore terra nullius at that time, it seems likely on the evidence that Britain acquired sovereignty over Spratly Islands and Amboyna Cay from 1877 until some time early in the twentieth century when sovereignty was lost by dereliction. There clearly was the requisite intention to occupy and subsequently there were sufficient acts of administration suited to the nature of the territory (the grant of rights to exploit natural resources) as would have consolidated a title.
In 1932 the Law Officers took the view that Britain had not satisfied the conditions necessary to the acquisition of legal title by occupation, because although the islands had been discovered by her nationals, the inchoate title thus acquired had not been perfected within a reasonable time by open and continuous exercise of sovereignty. This opinion was however written before the judgment by the Permanent Court of International Justice in 1933 in the Legal Status of Eastern Greenland case. I think that what was said in that case in regard to acquisition of title would have strengthened considerably the argument that Britain acquired title in 1877. For example, the Court said that "In many cases the tribunal has been satisfied with very little in the way of actual exercise of sovereign rights, provided that the other State could not make out a superior claim. This is particularly true in the case of claims to sovereignty over areas in thinly populated or unsettled countries'.
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It seems however that we did nothing in regard to our claim between 1889 (when we granted rights to the Central Borneo Company) and 1932 when the Law Officers advised that the claim was of so doubtful a nature that it could only be laid before the Permanent Court of International Justice with a faint prospect of
except that we continued to list the islands in the Colonial Office List among islands which were British territory or under British protection, but....not included in any Colony or separate Protectorate''. This inaction weakened our claim and it is possible that the islands again became terra nullius or that they became Chinese. Much would have depended on whether there was an alternative claim or continuous occupation on behalf of China. What is clear beyond argument is that our failure to protest at French claims to sovereignty lost us our title during the 1930s. This is made clear in paragraph 43 of the Memorandum. The protest at Japanese annexation did not necessarily imply that we regarded ourselves as still having sovereignty. In 1951 we seem to have regarded the French as having sovereignty. But we were apparently not aware of either the Chinese or the Vietnamese claim
CONFIDENTIAL