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ANNEX
(see v/reult 1/2/74)
Legal Advisers' re-examination of claims to sovereignty over the Spratly Islands in a minute of 1 February 1974 from Mrs Denza to Mr Chapman in South-East Asia Department.
SPRATLY ISLANDS
I have now studied the Research Department Memorandum of 27 January 1972 on the Spratly Islands, the Memorandum prepared in 1931 by the Foreign Office Legal Advisers and the Law Officers' Opinion of 29 July 1932. On the strength of the information there I can give you my preliminary views on the legal status of the islands.
On the information given in the Research Department Memorandum it is possible to eliminate a considerable number of the welter of claims that have been put forward. In my view there are only two claimants with any serious chance of succeeding in establishing title to the islands if there were to be an impartial arbitration or adjudication - France and China.
The Netherlands, Malaysia and North Vietnam have never put forward a claim to any of the islands, and North Vietnam has recognised China's claim. It is of course only within the last few months, and since the date of the Memorandum, that we would regard North Vietnam as having the capacity as a separate sovereign State to acquire sovereignty over territory. Taiwan is not a sovereign State and has therefore no capacity in international law to acquire sovereignty over territory. Acts performed by Taiwanese may well be intended to acquire or consolidate sovereignty for the State China, but such acts can in our eyes have no legal significance for that purpose if they were performed subsequent to January 1950. This is because those acts were not authorised or subsequently ratified by the government which we have since that date recognised as the sole government of China. (The position in this respect is similar to that in regard to Taiwan where we maintained in public for many years, and still maintain in private, that occupation by the Taiwanese authorities did not confer sovereignty on the State of China when sovereignty over Taiwan was renounced by Japan in the Peace Treaty of 1951.) We should therefore disregard acts and claims performed by Taiwanese subsequent to 1950.
The United States has also advanced no claim on her own behalf. Japan renounced in 1951 all right, title and claim' to the 'Spratly Islands'. It is however important to ascertain whether Japan acquired title to the Spratly Islands in 1939, because if she did, her renunciation of such title in 1951 could have had the effect of making the islands terra nullius and thus open to occupation. In my view however Japan's annexation of the islands in 1939 did not have the effect of giving her a valid title, because at the relevant time the islands were under the sovereignty of either France or China, and neither of these States had either been subjugated in regard to their possession of the islands, nor did they acquiesce in the Japanese action. Had matters turned out differently Japan might over a long
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