Part 4: Vague and imprecise “archaeological evidence” of China
Chang Teh-Kuang and S. Yeh wrote that the islands contained “ruins of living quarters, pottery and porcelain utensils, iron knives, iron cooking pots and other articles of daily use belonging to the Tang and Song dynasties.” The preliminary report of the second archaeological survey on the Xisha islands of Guangdong province recorded that “through the two surveys, the archaeologists have examined most of the islands, rocks, submerged cays and pools of the Xisha archipelago and, virtually everywhere, they found ancient objects and historical relics of the Xisha archipelago, sacred parts of our country for thousands of generations now.”
The question is that there exists no rule in international law that permits the inclusion of sovereignty into a nation over any certain area of land, where artifacts belonging to the civilization of such state are discovered. Those artifacts could possibly belong to Chinese fishermen, whose boats traveled and capsized in this sea area, or to Philippine and Singapore fishermen, or to Arabic, Portuguese, Netherlandish ships, which were drifted and ran aground there. There is no evidence to prove that Chinese fishermen were the only ones, who had permanent dwelling on the islands without sources of fresh water.
Meanwhile, in 2001, within the framework of a 10-year project for a basic archaeological survey of Trường Sa, the Central Highlands and Southern Vietnam, Vietnamese scientists had unearthed and discovered a lot of valuable archaeological relics on the Truong Sa archipelago. Based on archaeological evidence, historians have determined that Vietnamese inhabitants had lived in Trường Sa since the early time, at least in the Trần Dynasty and continuously settled and lived there in stages that followed. Through the artifacts collected and on historical and cultural basis, it is clear to realize the tie closely binding the inhabitants on the islands with those on the mainland from the early date till today. It is possible that the first inhabitants in Truong Sa were the result of migrations and discoveries of new land in the ancient time. Or, Vietnamese fishermen, who called in the islands upon sea-faring, then settled there, cultivated waste land and created a new life.
National sovereignty has been legally defined by international law. Zhang Hongzeng and other Chinese authors argue that: “Under the Song dynasty, many books have noted that the Chinese fishermen often went there to catch fish and collected corals (…). According to Zhu fan zhi (Records of the vassals) written by Zhao Rushi living under the Song Dynasty, 700-800 years from now, the Chinese people knew that Xisha and Nansha Islands were dangerous for maritime navigation (…). In the last century, only the Chinese lived and exploited the Xisha and Nansha in a continuous manner (…) “.
Having made in-depth studies of Chinese documents, Heinzig, a German jurist, drew a conclusion that not until the Song Dynasty (960), did the Chinese access the Paracels Islands (Hoàng Sa). As for Chinese presence in the Spratlys (Trường Sa), nothing had been recorded prior to 1867 until a British research vessel encountered Chinese fishermen there from Hainan. According to Heinzig, the Chinese began calling Spratlys Islands as “T’uan-sha Ch’ün-tao ” only after the end of World War I” .
Will separate access of Chinese individual residents to the Paracels be enough to establish China’s sovereignty over the islands in conformity with international law? The Chinese authors assert that China discovered Xisha and Nansha 2100 years ago under the reign of Emperor Wu of Han. For them, in conformity with the contemporary international law and practice “who discovers the territory, holds its sovereignty” in that period, China must have had sovereignty over these islands, which were discovered by the Chinese fishermen.”
Compared to the criteria of territorial acquisition, the notes cited by China are not sufficient to prove that the right of discovery has been established. An island or islands could have been recognized for a very long time by navigators, fishermen, geographers,… but such island or islands would still be considered ownerless (res nullius) until their state has carried out action in its own capacity there. Pan Shiying tried to prove that in the 15th and 16th centuries, only right of discovery is enough to claim ownership to ownerless land. The reason behind his arguments is to prove that activities by Chinese individuals were enough to establish the right of discovery .
However, the private activities of Chinese fishermen cannot bring about legal effect to the “right of discovery” neither can it be equated to right of possession. The proof of the right of discovery to the islands as mentioned above is vague and imprecise. We may agree that the activities of fishermen could bring about attention and intention of a state to unclaimed territories. However, this factor of will is not enough when it lacks physical factors of activities carried out by such state on spot. How will the Chinese prove this requirement of the then international law?
 According to Nguyễn Quang Ngọc (the cited book, p. 41): Prior to Li Zhun’s voyage to Hoàng Sa in 1909, Chinese map still indicated Hainan Island as the southernmost territory of China. In 1928, the Zhongshan University organized a survey of the Xisha archipelago, which was considered as a milestone in China’s understanding of Xisha. But till 1934, Chinese map did not go beyond Xisha archipelago and Triton Island, the southernmost of the archipelago, close to the 16th parallel north, known as the southernmost island with notes that the island is the milestone marking the southernmost territory of China. During 1935-1936, the geographical names of Nansha and T’uan-sha appeared on Chinese map. Nansha was named for Maccelesfield Bank and T’uan-sha indicated Spratleys. From 1939, the name Nansha referred to Vietnam’s Trường Sa, the name of T’uan-sha disappeared, and Maccelesfield Bank was named Zhongsha.
 Pan Shiying, The petropolitics of the Nansha Islands – China’s indisputable legal case, Beijing, December 1995.