CONFIDENTIAL
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the islands were annually visited by Chinese junks for the purpose of collecting turtle. There is no evidence either that we considered the possibility in the 1870s that the Spratly Islands belonged to China or that China then protested at our activities. This may well have been due to the fact that we did not regard China at that period as fully a member of the family of nations. It seems however that China did subsequently protest on all appropriate occasions the French action in 1933, at the Japanese annexation in 1939, when at the Peace Conference in 1951 Japan renounced her claim, and recently at the action by and on behalf of the Philippines. It therefore seems certain that China has not allowed her claim at any stage since the 1930s to be weakened by prescription. I think it probable that the islands were already under the sovereignty of China by the 1930s either because they were already Chinese before 1877 or because Chinese title revived on the gradual extinction of the British claim. This would mean that France did not in the 1930s acquire a title by occupation and there is no doubt that she did not exercise sovereign rights over the islands for long enough to establish a claim by prescription. When Japan relinquished control of the islands in 1945, Chinese warships were sent to Itu Aba, stone tablets claiming Chinese sovereignty were erected and weather and wireless stations were set up. Nationalist Chinese are still in occupation of Itu Aba (the only island of the seven which has ever been permanently inhabited) and although as I have said this occupation cannot since 1950 be regarded as strengthening Chinese title it does not on the other hand weaken the Chinese claim in any way, because the occupation is not on behalf of any other State. The main weakness of the Chinese claim is the fact that if one disregards acts of the Nationalists subsequent to 1950 there is not much evidence that China ever exploited the resources of the islands themselves as distinct from the resources of the surrounding seas. It therefore seems to me that on the available evidence it is possible that France could have succeeded in establishing title to some at least of the islands. But if the French are retiring from the field (and indeed they have not asserted their claim in public since 1939 so far as I am aware) and if they do not assign their right or claim to Vietnam (and we have no indication that they propose to do this) then I think that China is left cantering past the winning post.
Conclusions
My conclusions therefore are that our own claim is totally extinct under international law and that there is no reason why we should object to any Chinese claim or to any action by China which purports to be an exercise of sovereign rights over the Spratly Islands. We are already pursuing separately the question of what, if anything, to do about our old claim.
CONFIDENTIAL
(E.M. Denza)
Legal Adviser
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