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Hastings International and Comparative Law Review

Authors

Jianming Shen

Abstract

The islands in the South China Sea (Nanhai Zhu Dao), most notably the Xisha Islands (Paracels) and the Nansha Islands (Spratlys), have historically been China's territory. The Chinese people sailed to and discovered the chain of the South China Sea islands more than two thousand years ago. The Chinese dynasties started exercising jurisdiction at the latest in the Song era (960-1127 A.D.). China was the first to discover these islands, the first to name them, the first to engage in fishing and other production activities there, and the first to exhibit control and authority over the area. Given the lack of inhabitability in most part of the South China Sea islands, permanent settlements by the Chinese people and administrative and/or military presence by the Chinese government were and remain unnecessary for the purpose of establishing and maintaining China's sovereignty over the Xisha Islands and Nansha Islands.

China's inchoate title upon discovery, coupled with its well-recorded exploitation and exercise of jurisdiction afterwards, undoubtedly entitles China to claim sovereign rights. The French and Japanese invasions and occupations in the 1930s were invalid and did not establish their title because the South China Sea islands were no longer res nullius or terra nullius absent China's abandonment of sovereignty. The same is true with respect to the current unjustifiable claims and occupations by Vietnam, the Philippines, Malaysia and Brunei.

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