CHU Xiaolin

The Nansha Islands was first discovered, developed and administrated by China, which is an inherent territory of China. However, in the second half of the 20th century, when the prediction that the South China Sea (SCS) was potentially rich in hydrocarbon deposits spread quickly, the bordering States began to cast covetous eyes on the Nansha Islands. They not only illegally occupied a large number of features of the Nansha Islands, but also plundered the oil, gas, andfishery resources in the adjacent sea areas. More ridiculously, these States misinterpreted the original intention of the United Nations Convention on the Law of the Sea (UNCLOS) by separately invoking some paragraphs of the convention,seeking to legitimize, through maritime delimitation, the features and surrounding sea areas they illegally occupied. The Philippines even unilaterally submitted, in January 2013, its disputes with China in the SCS to international arbitration. In the arbitration, the Philippines raised an array of groundless statements, which include denying the legal effect of China’s U-shaped line in the SCS, and claiming that Chinese fishermen had never entered into the sea areas surrounding the Zhongsha Islands before 1935. These acts of the neighboring States greatly infringed upon China’s sovereignty in the SCS areas, and also severely violated the basic principles of international law and the premises for the application of UNCLOS.

“The land dominates the sea” is a fundamental principle of international law,which was established in the North Sea Continental Shelf Cases, 1969, where the International Court of Justice (ICJ) stated, “the land is the legal source of the power which a State may exercise over territorial extensions to seaward”.1GUO Yuan, An Analysis of the UNCLOS Pertaining to the Dispute over the South China Sea, Northern Legal Science, No. 2, 2009, p. 136. (in Chinese)One premise for the application of UNCLOS is that “sovereignty of land territory is established prior to consideration of maritime issues”.2Lee G. Cordner, The Spratly Islands Dispute and the Law of the Sea, Ocean Development& International Law, Vol. 25, Issue 1, 1994, p. 68.Its preamble also articulates the desirability of establishing, with due regard to the sovereignty of all States, a legal order for the seas and oceans.3FU Kuenchen, Related Conventions on the Law of the Sea with a Chinese English Index,Xiamen: Xiamen University Press, 2005, p. 54.

When mentioning the issue of the Nansha Islands, Gerard J. Mangone, an American scholar of the law of the sea, noted that sovereignty issue could not be resolved by UNCLOS, but by the international law in general.4Integrated Management Department of State Oceanic Administration ed., Some Issues of Ocean Management – Report of U.S Law of the Sea Expert Gerard J. Mangone’s Visit to China, February 1996, p. 31. (in Chinese)In accordance with the doctrine of acquisition of territory by occupation in international law, China first discovered and effectively occupied the Nansha Islands, and therefore enjoyed the sovereignty over the Nansha Islands. This was done primarily through China’s exploitation and management of the fishery resources around this group of islands.

I. The Connotations of Effective Occupation

Occupation means that a State intends to acquire the sovereignty of a territory beyond the jurisdiction of any other States.5Robert Jennings and Sir Arthur Watts, Oppenheim’s International Law, 9th Edition, England: Longman Group UK Limited, 1992, p. 686.Terra nullius is subject to occupation.Being different from uninhabited land, terra nullius refers to a land without owner,no matter it is inhabited or not. Even if a land is inhabited, it still can be occupied,provided that the individuals or aboriginal tribesmen residing there cannot be considered as a State. Additionally, in cases where a land was once owned by a State but was later abandoned by that State, this land could be also occupied by other States. This means that whether a land can or cannot be occupied is mainly decided by if it is under the sovereign jurisdiction of any State. Actually, real occupation involves two subsequent steps: discovery and effective occupation.

A. Discovery

Discovery provides the basis for a State to claim the sovereignty over a land acquired through occupation. Discovery grants a State an inchoate title, which empowers the State to temporarily exclude, within a reasonable period of time sufficient for the State to proceed to effectively occupy the discovered land, the appropriation of other States. However, if the discovering State fails to show any intention to convert the inchoate title into real occupation within that period, the inchoate title would be extinguished, and other States may acquire that land by means of effective occupation.6Robert Jennings and Sir Arthur Watts, Oppenheim’s International Law, 9th Edition, England: Longman Group UK Limited, 1992, pp. 689～690.

Therefore, discovery alone is not legally significant. Discovery should be accompanied with subsequent acts of effective occupation to accomplish occupation, and prove the discovering State’s sovereignty over the land. In the Island of Palmas Case (1928), the arbitrator Max Huber held that discovery alone,without a subsequent act, could not suffice to prove sovereignty … and an inchoate title of discovery must be completed within a reasonable period by the effective occupation of the region claimed to be discovered. The award of the Clipperton Island Case (1931) also pointed out that an effective occupation of a State may prevail over a disputed title of discovery put forward by another State.7Lowell S. Gustafson, The Sovereignty Dispute over the Falkland (Malvinas) Islands, New York: Oxford University Press, 1988, p. 4.

Even in the 16th or 17th century, the early international law did not recognize that discovery alone, without some form of appropriation, was sufficient for title.In this connection, the international law follows the basic rules of Roman law from which the international law was deduced. A finder in Roman law did not acquire title by the mere act of detection but by a further act appropriating the thing found.The classical passage in Grotius (founding father of international law) on discovery accords with the Roman law: “To discover a thing is not only to capture it with the eyes but to take real possession thereof.... The act of discovery is sufficient to give a clear title of sovereignty only when it is accompanied by actual possession.”8C.H.M. Waldock, Disputed Sovereignty in the Falkland Islands Dependencies, British Year Book International Law, Vol. 25, 1948, p. 323.

Prior appropriation is legally effective only when discovery is accompanied by acts of effective occupation. Some scholars therefore believe that it is impossible to establish an original title accruing from a bare discovery without at least some act of appropriation. They assert that the original title is acquired by prior appropriation. In the Island of Palmas Case, Judge Huber held that the inchoate title to the Island of Palmas should accrue to the Netherlands, considering the symbolic acts of sovereignty such as the establishment of Netherlands flags. This indicates that the beginnings of an exercise of sovereignty are preferable to any United States right by bare discovery.9C.H.M. Waldock, Disputed Sovereignty in the Falkland Islands Dependencies, British Year Book International Law, Vol. 25, 1948, p. 323.Hence, in this sense, appropriation rather than discovery is the true root of an original title to new lands.

B. Effective Occupation

Effective occupation is an element crucial to the validity of prior appropriation.With the evolution of international law, international law ever since the middle of the 18th century has demanded that occupation shall be effective.10R.Y. Jennings, The Acquisition of Territory in International Law, New York: Oceana Publications Inc., 1963, p. 29.A State must establish effective occupation to consolidate the inchoate title previously acquired upon discovery, so as to ultimately acquire the sovereignty over the land discovered.

In essence, territorial sovereignty is not only a right, but also a responsibility.It confers a State the right to exclude other States from administrating a given territory, but also the responsibility to provide guarantees to other States and their nationals with minimum protection of international law within that territory. The sovereign responsibility should be assumed by active acts of occupation, rather than passive inactivity. Failure to maintain basic administrative activities appropriate to the circumstances of the territory can be considered as voluntary abandonment.In that case, the sovereignty may be lost and given to any other States through effective occupation.11R.Y. Jennings, The Acquisition of Territory in International Law, New York: Oceana Publications Inc., 1963, p. 30.Therefore, effective occupation is fundamental to the acquisition and maintenance of territorial sovereignty.

Effective occupation mainly involves two elements: the subjective one is animus occupandi (i.e., the intention and will to act as sovereign) and the objective one is corpus occupandi (i.e., the exercise or display of acts of sovereignty).12C.H.M. Waldock, Disputed Sovereignty in the Falkland Islands Dependencies, British Year Book International Law, Vol. 25, 1948, p. 334.

Animus occupandi, the subjective element, is decided by the evidence of active administration carried out by a State over a territory. Such evidence may consist either of published assertions of title or of acts of sovereignty. It should be noted that animus occupandi ultimately must be that of the State, not of the individual.Accordingly, the act of a discover to have any effect must either have been carried out under a prior commission from his State or have been adopted subsequently by the State.13C.H.M. Waldock, Disputed Sovereignty in the Falkland Islands Dependencies, British Year Book International Law, Vol. 25, 1948, p. 324.

Corpus occupandi, as the objective element, means the peaceful, actual,sufficient and continuous exercise or display of sovereignty, specifically:

(a) Peaceful exercise or display of sovereignty. It means no more than that a State’s peaceful exercise or display of sovereignty has not been contested from another by competing acts of sovereignty, nor evoked longstanding protest from any other State. In the Island of Palmas Case, the arbitral tribunal stated in its award that, peaceful exercise of sovereignty was precisely in relation to other States,meaning that a State’s exercise of sovereignty over a disputed area had not evoked,before a critical date, competing litigations or other challenging actions from other States, such as protests. In the judgment of the Case Concerning Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (2008), the ICJ also pointed out that the possession of the islands was never challenged by any other State in the region and could in all the circumstances be seen as satisfying the condition of “peaceful display of territorial sovereignty”.14ZENG Hao, Some Tentative Thoughts on the Regime of Effective Occupation, a New Development of Territorial Law: Also on the Ownership of the Disputed Area between China and India, Law Review, No. 3, 2010, p. 70. (in Chinese)

(b) Actual exercise or display of sovereignty. It means that the exercise or display must be genuinely manifested in administrative acts over a territory, but not a mere oral or paper claim. The arbitral tribunal, in the Clipperton Island Case, said that the actual, not the nominal, taking of possession was a necessary condition of occupation, and this taking of possession consisted in the act or series of acts.15C.H.M. Waldock, Disputed Sovereignty in the Falkland Islands Dependencies, British Year Book International Law, Vol. 25, 1948, p. 335.In the Case Concerning Sovereignty over Palau Ligitan and Palau Sipidan (2002), the ICJ said in its judgment that the Court only considered the acts which manifested display of sovereignty and, beyond question, related to the disputed territory in the case.16HUANG Yao and LING Jiaming, On the Application of the Rule of Effective Control from the Perspective of International Judicial Decisions: Also on the Issue of Sovereignty over the Nansha (Spratly) Islands, Journal of Sun Yat-Sen University (Social Science Edition),Vol. 51, No. 4, 2011, p. 173. (in Chinese)

Additionally, the rule of actual exercise or display of sovereignty varies according to the circumstances of each territory, which should not be applied universally. In the Island of Palmas Case, Huber pointed out that “this rule does not, however, mean that the exercise or display of sovereignty must make a noticeable impact in every nook and cranny of the territory. The density of the acts of sovereignty varies according to the circumstances of each territory and, in particular, according to whether it is inhabited or uninhabited”.17C.H.M. Waldock, Disputed Sovereignty in the Falkland Islands Dependencies, British Year Book International Law, Vol. 25, 1948, pp. 335～336.That is to say,this rule should be assessed based on the circumstances of each territory. In case of livable and densely populated territory, the occupying State should exercise well-planned administration; however, when a remote, desolate, unlivable,uninhabited or sparsely inhabited territory is taken into sovereignty, it is enough if the occupying State carries out a few but actual administrative activities on the spot, or as long as it shows its intention of occupation, even if without actual local administration.

(c) Sufficient exercise or display of sovereignty. It means that the exercise or display of sovereignty must be sufficient to confer a valid title to sovereignty,which serves as an essential rule to evaluate effective occupation. In the Eastern Greenland Case (1933), the Permanent Court of International Justice (PCIJ),in evaluating the sovereignty activity of Denmark during successive periods,measured it each time by reference to the question whether the activity was sufficient to confer a valid title to sovereignty.

Identical with the rule of actual exercise or display of sovereignty, the degree of State activity required to confer a valid title varies with the circumstances of each territory. If the territory is livable and densely populated, elaborate administrative machinery may be necessary. If, on the other hand, it is remote,desolate, unlivable, uninhabited or sparsely inhabited, a rudimentary organization may be all that is required. For example, in the case of islands used merely for the purpose of a particular business, such as the catching of fish or the collecting of guano, the presence of an official or two may be sufficient. If it is an uninhabited or very sparsely inhabited island with terrible natural environment, the occupying State may not necessarily be required to maintain even a single official permanently on the spot. It is enough if the State continuously claims sovereignty over the territory, and exercises acts showing State authority as and when occasion demands.

In the Clipperton Island Case, the arbitral tribunal contended that the declaration of sovereignty over a territory was sufficient only when the State established a complete administrative system on the disputed territory; however,if a territory was completely uninhabited, it was, from the first moment when the occupying State made its appearance there, at the absolute and undisputed disposition of that State. In the Case Concerning Sovereignty over Palau Ligitan and Palau Sipidan, it was found that effective administration was usually very rare in disputed regions like these two islands, which were without habitation or permanent habitation, or great economic value.18ZENG Hao, Some Tentative Thoughts on the Regime of Effective Occupation, a New Development of Territorial Law: Ownership of the Disputed Area between China and India,Law Review, No. 3, 2010, p. 71. (in Chinese)

(d) The continuous exercise or display of sovereignty. It means that the exercise or display of sovereignty is uninterrupted during a considerable period of time. In the Case Concerning Sovereignty over Palau Ligitan and Palau Sipidan,the ICJ emphasized the need for a continuous display of sovereignty, holding that the sovereignty activities exercised by Malaysia, although few in number,continued for a considerable period of time and showed its intention to assume State responsibility over the two islands.19LI Yi, On State’s Sovereignty Declaration Action in the Perspective of International Law,Northeast Asia Forum, No. 1, 2015, p. 65. (in Chinese)

The degree of the continuity, like the degree of the “actuality” and“sufficiency”, varies according to the circumstances of each territory. In unlivable,sparsely inhabited or uninhabited regions, the exercise of sovereignty may not be uninterrupted. In other words, display of sovereignty at intervals appropriate to the circumstances of a territory is held sufficient for this criterion. In the Island of Palmas Case, the arbitrator Huber stated that, “Although continuous in principle,sovereignty cannot be exercised in fact at every moment on every point of a territory. The intermittence and discontinuity compatible with the maintenance of the [sovereignty] necessarily differ according as inhabited or uninhabited regions are involved.”20The Island of Palmas Case (or Miangas): Award, at http://www.haguejusticeportal.net/index.php?id=5184, 1 October 2017.This point was recognized in the Island of Palmas and Eastern Greenland cases, where a display of sovereignty at irregular and comparatively long intervals was held sufficient for effective occupation.21C.H.M. Waldock, Disputed Sovereignty in the Falkland Islands Dependencies, British Year Book International Law, Vol. 25, 1948, p. 337.

II. Fisheries and Effective Occupation

The statements above show that effective occupation is an important step in the acquisition of territorial sovereignty through prior appropriation. Certain conditions should be satisfied to perfect effective occupation; yet these conditions are not always absolute, which should be adjusted and modified according to the circumstances of each territory. That is to say, effective occupation is effected through the exercise or display of sovereignty in a manner appropriate to the circumstances of a territory. Particularly, in case of remote, uninhabited or very sparsely inhabited islands, the threshold of effective occupation would be lowered.Specifically, the occupying State may not necessarily be required to set up a complete administrative system on these islands; for some uninhabited islands,it may not be required to maintain even one or two officials permanently on the spot. It is enough if the State completes rudimentary claims of sovereignty over the territory, and assumes the principal responsibilities of a State.

With regards to the islands described above, the requirements of exercise or display of territorial sovereignty may be loosened appropriately, and the content of such exercise or display is also altered. The harsh natural conditions of these islands make them unsuitable to permanently accommodate humans. Therefore,exploration and exploitation activities are also rare on or around these islands,which cannot be as regular as those in the densely populated regions. However,thanks to the absence of human activities, the natural resources on these islands,especially fishery resources, are usually kept intact. Under this circumstance,fishing is one of the important economic activities on such kinds of islands;accordingly, fisheries management is the essential part of the administration carried out by the occupying State over the territories.

In many cases concerning sovereignty over islands, the international judicial organs all recognized fishery management activities as essential manifestation of effective occupation by the State concerned. For example, in Grisb?darna Case(1909), the PCIJ attached special importance to the fact that lobster fishing in the disputed area had been carried out by a much larger number of fishers of Sweden than by the fishers of Norway, and considered that this evidence had great probative value in deciding that Sweden enjoyed territorial sovereignty over the region; in the Eastern Greenland Case (1933), Danish whalers’ knowledge of the east coast of Greenland, and nautical charts of the period, were considered by the PCIJ to be vital evidence supporting Denmark’s expansion of its colony of Greenland until its acquisition of territorial sovereignty over the Eastern Greenland;22FU Kuenchen, China’s Historic Waters in the South China Sea and Taiwan’s Legal Position,in FU Kuenchen ed., Legal Issues of Ocean Management, Taibei: Wensheng Book Store,2003, p. 474. (in Chinese)in the Case Concerning Territorial and Maritime Dispute Between Nicaragua and Honduras in the Caribbean Sea (2007), Honduras’ proposal to regulate fishing activities surrounding the disputed island, being an act of sovereignty, was adopted by the ICJ; in the Territorial and Maritime Dispute (Nicaragua v. Colombia), 2012,Colombia’s listing of fishery management activities as evidence supporting its effective jurisdiction over the disputed island was also accepted by the ICJ.23WANG Meili and TAN Chang, Application of Effective Control in the South China Sea Islands Disputes – On the Analysis of the International Court of Justice Jurisprudence,Pacific Journal, No. 5, 2014, p. 81. (in Chinese)

Notably, fishery activity, being a vital manifestation of effective occupation of islands, must be that of the State, not of the individual. That is to say, fishery activity must be performed under the name of the State, rather than the individual.Only fishery activity of the State can constitute an act of sovereignty supporting effective occupation of the State; fishery activity of the individual cannot be regarded as legal evidence of effective occupation. For instance, in the Case Concerning Sovereignty over Palau Ligitan and Palau Sipidan, the proof presented by Indonesia, namely the long-term fishing activity carried out by Indonesian nationals in the waters near the two islands, was not adopted by the ICJ, since bare activities of fishermen cannot represent government behaviors; in contrast, the evidence provided by Malaysia, i.e., annual harvesting of turtles and collecting of turtle eggs by Malaysian government on these islands, was accepted by the ICJ,24QU Bo, Application of the Principle of Effective Control to the Settlement of Insular Disputes, Contemporary Law Review, No. 1, 2010, p. 145. (in Chinese)because these activities were carried out under the name of the State, which consisted effective acts of sovereignty.

Fishing activities of individuals, although which cannot be used directly as evidence of effective occupation, may indirectly show the existence of fisheries management. Furthermore, such activities of individuals may convert into government behaviors upon official commission from the State or after being adopted subsequently by the State. In Minquiers and Ecrehos Case (1953), the ICJ declared that the personal presense of the nationals of a State on a land may mean or involve that State’s occupation of the land. Such personal acts have special importance to a land located on the boundary of two States. In this case, the ICJ also pointed out that, the original evidence produced by the UK to support its claim of occupation, i.e., acts carried out by individuals on the islands in dispute,had been consolidated and put into effect through the UK’s continous exercise of sovereignty in the 19th and 20th centuries, such as the exercise of criminal jurisdiction, registration of real property, taxation, and registration of boats. These acts sufficed to manifest British local administration, since the acts of individuals were carried out under official commission of the British government or were adopted subsequently by the government.25FU Kuenchen, China’s Historic Waters in the South China Sea and Taiwan’s Legal Position,in FU Kuenchen ed., Legal Issues of Ocean Management, Taibei: Wensheng Book Store,2003, p. 474. (in Chinese)

III. History of Chinese Fisheries around the Nansha Islands

China has a long history in exploring, exploiting and managing the fishery resources surrounding the Nansha Islands, which can be roughly divided into three stages: ancient, modern and contemporary times.

A. History of Ancient Chinese Fisheries around the Nansha Islands(Before the First Opium War in 1840)

As early as the Qin and Han Dynasties, the Chinese people had already sailed along the Maritime Silk Route to the Nansha Islands, where they engaged in fishery production. Many historical records of that time contain detailed descriptions about the topography and geomorphology of the Nansha Islands. For example, Yiwu Zhi(Record of Foreign Matters), a book completed by Yang Fu in the Han Dynasty wrote, “the waters around Qitou in Zhanghai is shallow and full of submerged reefs”. Here, “Zhanghai” and “Qitou” refer to the SCS and the SCS Islands respectively.26HUANG Delin, A Comment on the Philippines’ Claims of Sovereignty over Some Features of the Nansha Islands, Law Review, No. 6, 2002, p. 46. (in Chinese)Both the Nanzhou Yiwu Zhi (Record of Foreign Matters in Nanzhou)by Wan Zhen in the Three Kingdoms period, and the Funan Zhuan (Record of Funan) by Kang Tai in the same period state that the SCS contains a large number of submerged reefs and coral reefs.

In the Tang and Song Dynasties, China’s fishing industry on the Nansha Islands and the adjacent waters begun to take shape, and this group of islands was officially put under the administrative jurisdiction of China. At that time, Chinese fishermen created and sustained a production model: they sailed southward in each winter when the northeast monsoon blew; when they reached the Xisha Islands,some ships would pull in to shore and conduct fishing operations in the nearby area,and some other ships would sail further southward to the Nansha Islands; in the next late spring and early summer, they would return to Hainan with the southwest monsoon, where the fishermen sold their catches and took on supplies.27ZHAO Quanpeng, Chinese Fishermen’s Activities on the South China Sea Islands in Each Era, The New Orient, No. 3, 2011, p. 22. (in Chinese)

The historical works completed in Tang Dynasty continued to use the term“Zhanghai” to generally refer to the SCS, including the Nansha Islands. Such works include Nanshi (History of Southern Dynasties) by Li Yanshou, and Tongdian (Comprehensive Statutes) by Du You. In the Song Dynasty, “Shitang”and “Changsha” were, in most cases, used to call the groups of islands in the SCS. “Shitang” had variants such as “Qianli Shitang” and “Wanli Shitang”, and“Changsha” had variants like “Qianli Changsha”, “Wanli Changsha”, and “Wanli Changdi”. Yudi Jisheng (Exhaustive Description of the Empire) by Wang Xiangzhi,Song Huiyao (Collected Statutes of the Song Dynasty) as well as other records all contain such wordings.28LIN Ronggui and LI Guoqiang, A Comprehensive Study on the Historical and Geographical Issues of the Nansha Islands, China’s Borderland History and Geography Studies, No. 1,1991, p. 78. (in Chinese)

Since the Zhenyuan era of Emperor Dezong’s reign in Tang Dynasty, the Nansha Islands has been marked as Chinese territory on official maps, and put under the administration of Guangnan Xilu. Zhao Rugua, an official of Southern Song Dynasty, wrote in his book Zhufan Zhi (A Description of Barbarian Nations):“in the fifth year of the Zhenyuan era, Qiong was selected as the prefecture seat …with Champa on its southern side, Chenla on its western side, and Qianli Changsha and Wanli Shitang on its eastern side … the sea is vast and boundless, where the water meets the sky … all the four prefectures and 41 counties are under the jurisdiction of Guangnan Xilu.”29ZHOU Zhonghai, On the Significance of Administrative Jurisdiction in Matters of Territorial Sovereignty, Tribune of Political Science and Law, No. 1, 1990, p. 53. (in Chinese)In Song Dynasty, Chinese government exercised more elaborate administration over the Nansha Islands. It not only placed the group of islands under its jurisdiction, but also sent navy to patrol the region. The patrolling area of the navy of the Northern Song Empire covers the Xisha and Nansha Islands and their surrounding waters. Ancient China exercised sovereignty over its islands or features in distant waters primarily through naval patrolling,which was not purely military in nature, but also assumed administrative functions,including keeping social order, protecting production activities and managing local inhabitants.30ZHU Qiwu, The Problem of Ownership of the Nansha Islands Discussed from the Viewpoint of International Law (Part One), Tribune of Political Science and Law, No. 6, 1990, p.8. (in Chinese)

The fishing industry of the Nansha Islands flourished in the Yuan, Ming and Qing Dynasties, when the Chinese government strengthened its control over the islands. Particularly, in Qing Dynasty, fisheries production in the Nansha Islands became relatively mature. Since the waters of the Nansha Islands was precarious and far away from Chinese mainland, the fishery industry there, in order to raise fishing capacity and ensure operation safety, was mainly organized in the following two ways: the first is a voluntary association of fishermen. Fishermen would jointly contribute capital or share the contributions of labor and capital; generally, 20～30 fishermen would make contributions, when there was a shortage of capital, other men would be invited to buy a share. They would charter a ship from the shipowner, and share the earnings arising from their catches in proportion to their contributions.31WU Fengbin, Chinese Fishermen’s Development and Management of the Nansha Islands Since Song and Yuan Dynasties, The Journal of Chinese Social and Economic History, No.1, 1985, No. 37. (in Chinese)The second is operated by Yulan Zhu (the fishing store owner).Possessing fishing boats and capital, Yulan Zhu obtained license from the local government and paid the relevant tax. They set up shops in towns, and employed fishers to catch fish or other aquatic animals in the waters near the Xisha and Nansha Islands, and took pro fits therefrom.

As time went by, the fishermen acquired more and more knowledge about the distribution of the SCS Islands, along with the sea routes, monsoon, sea currents,and other geographical characteristics. They gave names to the islands, shoals,reefs, cays and banks of the SCS Islands, and kept detailed records. The examples in this case include the book Shunfeng Xiangsong (Voyage with a Tail Wind)appeared in the late Ming Dynasty, and Geng Lu Bu (Manual of Sea Routes),which was widely circulated among the fishermen of Hainan province. Such books are the crystallization of the collective wisdom of ancient Chinese fishermen and their sailing experiences in the waters of the Nansha Islands. They became the navigation guides necessary for fishermen to fish around the Nansha Islands. For instance, Geng Lu Bu wrote down more than 100 traditional names of the features of the Xisha and Nansha Islands, and also recorded the sailing directions and miles for a ship to travel from Qinglan port of Wenchang County, Hainan Province, or Tanmen port of Qionghai County, to the features of the Xisha and Nansha Islands.32FU Kuenchen, China’s Historic Waters in the South China Sea and Taiwan’s Legal Position,in FU Kuenchen ed., Legal Issues of Ocean Management, Taibei: Wensheng Book Store,2003, p. 490. (in Chinese)

In addition, Chinese fishermen had settled down on the Nansha Islands, at latest in Qing Dynasty. Beizi, Nanzi, Taiping, and Zhongye Islands, as well as other features of the Nansha Islands were major habitats of Chinese fishermen. Taking these features as a ground for living and production, Chinese fishermen caught,among others, fish, turtles, holothurians, tridacna and top shells in the adjacent waters. Furthermore, they also engaged in other activities on these features, such as digging wells, planting trees, and erecting temples. For example, wells, temples and tombstones of the Qing Dynasty have been found on the Taiping Island, which is the largest island of the Nansha Islands, and the chief habitat of ancient Chinese fishermen.

The Chinese government in Yuan, Ming and Qing Dynasties reinforced their control and administration over the Nansha Islands in all kinds of forms,such as astronomical surveying, marine patrol and defense, marking the features as Chinese territory on official maps, and safeguarding its rights and protesting against violations of its rights. Kubilai, the founding emperor of the Yuan Dynasty,sent his chief advisor of hydraulics, mathematics, and astronomy Guo Shoujin to the Xisha Islands, for the purpose of surveying the SCS.33ZHAO Lihai, China Has Sovereignty over All South China Sea Islands According to International Law, Journal of Peking University (Humanities and Social Sciences), No. 3,1992, p. 35. (in Chinese)The Ming government stationed a large number of troops in Hainan to defend against invaders, and sent naval forces to the Xisha and Nansha Islands to patrol the adjacent sea areas. Qing government marked the Nansha Islands as Chinese territory on official maps, such as Huangqing Zhisheng Tu (Map of the Provinces Directly under the Imperial Qing Authority) appeared in the reign of Emperor Qianlong, Daqing Wannian Yitong Tianxia Quantu (Complete Map of the Eternally Unified Great Qing Empire)completed in the reign of Emperor Jiaqing. These maps indicated clearly that the Nansha Islands was under the jurisdiction of a prefecture specially established by Chinese government.34LIN Ronggui and LI Guoqiang, A Comprehensive Study on the Historical and Geographical Issues of the Nansha Islands, China’s Borderland History and Geography Studies, No. 1,1991, p. 80. (in Chinese)In the ninth year of the reign of Qing Emperor Guang Xu, the Qing Government also protested against the investigation and survey of the Nansha Islands conducted by the Germany unilaterally, aiming to protect its sovereignty over the islands.35ZHOU Zhonghai, On the Significance of Administrative Jurisdiction in Matters of Territorial Sovereignty, Tribune of Political Science and Law, No. 1, 1990, p. 53. (in Chinese)

In summary, from Qin and Han Dynasties to Ming and Qing Dynasties,Chinese people grew in knowledge about the Nansha Islands, along with the accumulation of fishery production practices around these islands. Grounded on that, ancient Chinese government strengthened and consolidated its control over the islands.

B. History of Modern Chinese Fisheries around the Nansha Islands(From the First Opium War in 1840 to the Founding of the People’s Republic of China in 1949)

After the Revolution of 1911, China’s fishery industry sustained steady development around the Nansha Islands. The Republic of China (ROC) achieved great results in the administration and protection of the Nansha Islands.

In the Republican Era, the Nansha Islands became a vital fishing ground for Chinese fishermen. Fishermen started from Hainan Island each spring, stayed on the Nansha Islands when they reached there, and returned to Hainan Island,carrying all their catches, after late autumn. Shen Bao (Shanghai News) reported on 31 July, 1933: “the nine features of the Nansha Islands, lying at the south of Hainan Island, are within the territorial sea of China. Fishermen of Guangdong and Fujian take turns to sail there each year. Tens of thousands of people take these features as base for fishing …”36WU Fengbin, Chinese Fishermen’s Development and Management of the Nansha Islands Since Song and Yuan Dynasties, The Journal of Chinese Social and Economic History, No.1, 1985, No. 41. (in Chinese)

At that era, an increasing number of fishermen permanently settled down on the Nansha Islands, rather than stayed there shortly. In the expedition to the Nansha Islands that Japanese national Okura Unosuke organized in December 1918, he was astonished to find three men from Haikou of Wenchang County living on the Beizi Island. A French newspaper reported in 1933 that “Between Annam and the Philippine Islands is a group of coral islands … some Chinese people from Hainan live on the islands, fishing for a living”. These records indicate that many Chinese fishermen, as required by development of production, settled down on the Nansha Islands, and explored and exploited the islands or the adjacent waters for a long term, even for more than a decade.

In addition, the ROC government repeatedly defended against foreign invasion to safeguard its sovereignty over the Nansha Islands, and continuously strengthened its control over the islands. In 1933, France illegally occupied nine features of the Nansha Islands, including Nanwei, Taiping, Beizi and Nanzi Islands. In response, the ROC Ministry of Foreign Affairs lodged serious protests to the French government, alleging that “only Chinese fishermen are living on the Nansha Islands, which has been recognized as Chinese territory by the international community.”37LIN Ronggui and LI Guoqiang, A Comprehensive Study on the Historical and Geographical Issues of the Nansha Islands, China’s Borderland History and Geography Studies, No. 1,1991, p. 86. (in Chinese)

After the breakout of World War II in 1939, the Nansha Islands was occupied by Japan. In 1943 when Allied victory of World War II was approaching, heads of China, the United States and the UK issued the Cairo Declaration, providing that the territories Japan illegally seized from China should be returned to China,including Manchuria, Taiwan and Penghu Islands. At that time, the Nansha Islands was placed under the jurisdiction of Taiwan by Japan; therefore, the territories that Japan should return to China, in accordance with the Cairo Declaration, necessarily include the Nansha Islands. In 1945, China, the US and the UK issued the Potsdam Declaration, reiterating that the terms under the Cairo Declaration should be carried out, and Japan should return the territories stolen from China. After Japan’s surrender in the same year, the ROC government recovered the Nansha Islands in 1946. It held a handover ceremony, erected tablet to celebrate that moment,and stationed forces on the islands, proclaiming to the world of its resumption of sovereignty over the Nansha Islands.38LIU Wenzong, Historical and Legal Basis for China’s Sovereignty over the Xisha and Nansha Islands, Ocean Development and Management, No. 3, 1997, p. 53. (in Chinese)

In order to define and declare the scope of the Xisha and Nansha Islands,ROC Ministry of Interior convened in April, 1947, the relevant organs to discuss the issue. After discussion, it was agreed that: the southernmost point of Chinese territory in the SCS should be Zengmu Shoal; the Xisha and Nansha Islands, after being officially named by the Ministry of Interior, would be illustrated with maps;in the fishing season of the Xisha and Nansha Islands, the Naval Headquarters and Guangdong Provincial Government would protect the fishermen heading to these islands and provide them with their needed assistances like transportation and communication.39LI Jinming, “Nine-Dashed-Line” in the South China Sea and the Relevant Issues, China’s Borderland History and Geography Studies, No. 2, 2001, p. 15. (in Chinese)Afterwards, the Department of Land Administration under the Ministry of Interior issued Nanhai Zhudao Weizhi Tu (Location Map of the SCS Islands). The map displayed the Nansha Islands located in the SCS, and an 11-dash line (also known as the “dash-line” or “U-shaped line”) surrounding the four groups of islands, which was marked as a national boundary line extending seaward from the land boundary between China and Vietnam in the Beibu Gulf to eastern Taiwan.The map showed that the southernmost point of Chinese territory was 4° north latitude, including Zengmu Reef.40JIA Yu, On the Law Status of Duanxuxian of South China Sea, China’s Borderland History and Geography Studies, No. 6, 2005, p. 112. (in Chinese)The U-shaped line defined the extent of the SCS subject to China’s jurisdiction, which is one of the major achievements of ROC government in the exercise of sovereignty over the SCS Islands. At the beginning of 1948, the Department of Land Administration included this location map into Zhonghua Minguo Xingzheng Quyu Tu (Map of the Administrative Districts of the ROC) and officially published it, publicly declaring China’s sovereignty over the SCS Islands and the scope of the SCS under its jurisdiction. Notably, no States protested against this map.

During the ROC period, the fishery industry of the Nansha Islands, based on previous experiences, continuously expanded its scale, and became an important fishery base in the SCS. The ROC government kept strengthening its jurisdiction over the Nansha Islands through different ways, such as protecting fisheries,marking the islands as Chinese territory on official maps, and lodging diplomatic protests.

C. History of Contemporary Chinese Fisheries around the Nansha Islands (After the Founding o f the People’s Republic of China in 1949)

After the founding of the People’s Republic of China (PRC) in 1949, China deepened its exploitation of fishery resources around the Nansha Islands, and strengthened the administration and protection of sovereignty over the group of islands through all kinds of ways.

In the early years of PRC (1951–1956), a large number of fishermen of Qionghai County, Guangdong Province, organized by Chinese government,sailed to the Nansha Islands for fishery production.41ZHU Qiwu, The Problem of Ownership of the Nansha Islands Discussed from the Viewpoint of International Law (Part One), Tribune of Political Science and Law, No. 6, 1990, p.9. (in Chinese)The fishery industry of the Nansha Islands was once stalled during the Cultural Revolution. Fortunately, under government support, this industry gradually recovered and entered a new stage of development after the 1980s. With more than two decades of efforts, the fishery industry of the Nansha Islands achieved tremendous growth: the number of fishing boats increased from a dozen to several hundreds; the amount of total catches increased from less than 5 tonnes to tens of thousands of tonnes; the operation range expanded from the sea area surrounding the northeastern features of the Nansha Islands to the fishing grounds adjacent to the southwestern and southern parts of the Nansha Islands, covering the entire waters of the group of islands;and the operating time was prolonged: previously, fishermen sailed to the Nansha Islands in winter and returned to Chinese mainland in summer, but after decades of development, they started to engage in fishing operation all year round.42History, Inheritance, Current Situation and Prospects of the Fishery Industry of the Nansha Islands, at http://wmliaodong.blog.163.com/blog/static/13725844420102295613780/, 9 May 2015. (in Chinese)

After entering the 21st century, the fishery industry of Nansha Islands faces a new situation. When Sino-Vietnamese Fishery Agreement in the Gulf of Tonkin took effect in 2004, thousands of fishing boats retreated from traditional fishing grounds and went to the coastal waters of the SCS for fishing, which dramatically raised the fishing pressure on these waters, since the fishery resources were greatly depleted in the offshore waters. In addition, as the SCS disputes become increasingly complicated, illegal fishing activities are found rampant in the waters near the Nansha Islands. Vietnam, the Philippines and other neighboring States plundered the fishery resources around the Nansha Islands, and illegally attacked and seized Chinese fishermen and fishing boats. Under this complex circumstance,the fishery industry of the Nansha Islands has acquired new significance. It not only helps to alleviate the fishing pressure on the offshore areas of the SCS, and raise Chinese fishermen’s income; but also to protect China’s sovereign rights over the waters adjacent to the Nansha Islands, and display China’s authority and jurisdiction over the islands.

Facing this new situation, Chinese government adopted a series of measures to assist fishermen in exploiting the fishery resources of the Nansha Islands,such as grouping fishermen into different teams, carrying out fishery law enforcement activities, and surveying resources. For example, since 2000, the Ocean and Fisheries Department of Hainan Province, with the help of fishermen’s cooperatives, has grouped fishers into teams, and organized them to carry out large-scale fisheries production with integrated transportation, marketing and supply networks on the Nansha Islands. This measure plays a significant role in raising the fishery production yield of the Nansha Islands, and motivating the fishers to maintain normal operation.43DENG Yu, Leaping Over the Dragon’s Gate, Fishermen of Hainan Are Coming to the Nansha Islands, at http://www.hkwb.net/nrpd/content/2013-05/08/content_1185416.htm?node=760, 9 May 2015. (in Chinese)Since 1994, fishery administration vessels,as organized by Chinese Ministry of Agriculture, have patrolled the waters adjacent to the Nansha Islands on a regular basis. This practice entered a new stage in 2010. Under the overall coordination of China Fishery Command Center,fishery administration vessels from different sea areas were grouped into fleets to patrol the waters of the Nansha Islands, which was not solely a manner of fishery management, but also a way to ensure the safe and stable development of the local fishery industry.44China Yuzheng 311 and 202 Sail to the Waters Adjacent to the Nansha Islands Together, at http://yz.jxagri.gov.cn/html/news/2010/04/02/857.html, 9 May 2015. (in Chinese)In 2010, China’s first self-designed and self-developed“Nanfeng” fisheries and environmental research ship completed its maiden voyage successfully. The vessel has cruised to the waters near the Nansha Islands to survey the fishery resources there for several times, providing an enormous number of authoritative scientific data necessary for sustainable development of the local fishery industry.45China Surveys the Fishery Resources of Nansha Islands, at http://news.takungpao.com/paper/q/2013/0318/1496422.html, 9 May 2015. (in Chinese)

Chinese government not only enhanced fishery exploitation and management around the Nansha Islands, but also further controlled and upheld its sovereignty over the Nansha Islands by measures such as enacting legislations, establishing administration and making diplomatic protests. In terms of legislation, China promulgated the Declaration of the Government of the People’s Republic of China on China’s Territorial Sea in 1958, and the Law of the People’s Republic of China on the Territorial Sea and the Contiguous Zone in 1992, explicitly providing that Chinese territory includes the Nansha Islands. In terms of administration, Chinese government established Hainan Administrative Region and Xisha, Nansha, and Zhongshan Islands Administration Office under Guangdong Province in 1959 and 1981, respectively.46ZHU Qiwu, The Problem of Ownership of the Nansha Islands Discussed from the Viewpoint of International Law (Part One), Tribune of Political Science and Law, No. 6, 1990, p.9. (in Chinese)In 2012, the State Council approved the abolition of the administration office and the simultaneous establishment of prefecture-level Sansha City in Yongxing Island with jurisdiction over Xisha, Nansha and Zhongsha Islands and the relevant waters.47A Brief History of the Establishment of Sansha City, at http://phtv.ifeng.com/program/zbjsj/detail_2012_07/25/16286309_0.shtml, 9 May 2015. (in Chinese)In terms of diplomatic protests, firstly, in response to the Treaty of San Francisco concluded by Japan and the Allied Powers, Premier Zhou Enlai, in his Statement on the United States-British Draft Peace Treaty with Japan and the San Francisco Conference of 1951, solemnly pointed out that the Nansha Islands “has always been China’s territory”. Secondly, when Vietnamese government issued two white papers in 1979 and 1982, claiming that the Xisha and Nansha Islands were Vietnamese territories, Chinese Ministry of Foreign Affairs issued two documents in 1980 and 1988 respectively, namely, China Holds Indisputable Sovereignty over the Xisha and Nansha Islands, and Memorandum on the Issue of the Xisha and Nansha Islands. The two documents refuted Vietnam’s claims with solid facts and enormous supporting materials. Thirdly, when the Philippines adopted its Baselines Law in 2009, enclosing Huangyan Island and some features of the Nansha Islands into its territory, Chinese Ministry of Foreign Affairs solemnly asserted that Huangyan Island and the Nansha Islands had always been a part of Chinese territory. Such measures displayed China’s jurisdiction over the Nansha Islands, and also defended China’s sovereignty over the islands in a timely manner.

In a word, after the founding of the PRC, the fishery industry of the Nansha Islands, as supported by Chinese government, entered a new stage and achieved tremendous growth. Chinese government constantly enhanced its control over the Nansha Islands and the local fisheries management, showing its sovereignty over the group of islands to the world.

IV. Fisheries and China’s Effective Occupation of the Nansha Islands

Voluminous historical data regarding China’s fishery exploitation and management in the Nansha Islands are sufficient to show that, China enjoys the inchoate title to the Nansha Islands as acquired upon discovery and also the complete sovereignty over the islands through effective occupation.

Although a bare discovery cannot give a State territorial sovereignty, it is not meaningless. Discovery provides the basis for occupation, which grants the discovering State an inchoate title to exclude the occupation of other States. Since Qin and Han Dynasties, the Chinese people have sailed along the Maritime Silk Route to the Nansha Islands for fishing. The fishery industry achieved tremendous growth in the waters of the Nansha Islands, which becomes a traditional fishing ground for Chinese fishermen. A number of historical records, such as Yiwu Zhi and Nanzhou Yiwu Zhi, depict China’s discovery and naming of the features of the Nansha Islands at a time at least 1,500 years earlier than the discovery time claimed by Vietnam and other States. At that time, States like Vietnam, the Philippines and Malaysia were uncivilized and did not achieve national independence, therefore they were not entitled to discover any land as sovereign States.

A State must establish effective occupation to consolidate the inchoate title previously acquired upon discovery, so as to ultimately acquire the sovereignty over the land discovered. Hence, effective occupation is critical to the acquisition of territorial sovereignty. Ever since Tang and Song Dynasties, the Nansha Islands was officially placed under the administration of China. Ancient Chinese government constantly enhanced the management of local fishery by taking measures such as issuing licenses, levying taxes and managing fishermen, and continuously controlled the islands through, among others, establishing administration, naval patrolling and astronomical surveying. In the ROC era, the fishery industry of the Nansha Islands, under the support of ROC government, achieved further growth with a large amount of fishers settling down there. The ROC government recovered the Nansha Islands, published associated maps, and lodged diplomatic protests against offending acts, declaring its sovereignty over the Nansha Islands to the world. After the founding of the PRC, especially in the 21st century, Chinese government took a load of measures to promote the recovery and booming of the fishery industry of the Nansha Islands, such as grouping fishermen into different teams, carrying out fishery law enforcement activities, and surveying resources.Additionally, it also took measures, including enacting legislations, establishing a prefecture-level city and defending its rights, to further display and safeguard its sovereignty over the Nansha Islands. China’s uninterrupted management of the fishery industry of the Nansha Islands and control over the islands is sufficient to show its peaceful, actual, sufficient, continuous and effective occupation of the Nansha Islands.

Firstly, the exercise or display of sovereignty should be peaceful. It means no more than that a State’s exercise or display of sovereignty has not been contested or evoked protest from any other State. Prior to the second half of the 20th century,when the prediction that the SCS was potentially rich in hydrocarbon deposits was made public, China’s exercise or display of sovereignty over the Nansha Islands had never been contested by any other State. Ancient and modern Chinese government’s administration and jurisdiction over the Nansha Islands, as well as its publication of books and maps concerning the islands, had neither evoked any protest nor objection from other States. After the founding of PRC, States bordering the SCS have, on many public occasions, recognized that the Nansha Islands is a part of Chinese territory, which is also accepted by other States and international organizations. The statements and diplomatic notes issued by Vietnamese government, and the books and maps published in Vietnam before 1975, all admit that the Nansha Islands is a part of Chinese territory. For example, in June 1956,Vice-Foreign Minister Un Van Khiem of Vietnam received Li Zhimin, Chare d’Affaires ad interim of the Chinese Embassy in Vietnam, and told him that,“according to Vietnamese data, the Nansha Islands is historically a part of Chinese territory.” In September 1958, Vietnam’s prime minister, Phm V?n ?ng, sent a formal note to premier Zhou Enlai of China, stating that the Vietnam respected China’s decision of 1958 on territorial waters. All these indicate that Vietnamese government acknowledged that the Nansha Islands is a part of Chinese territory.The geography textbook of Vietnam published in 1974 also states that the Nansha Islands belongs to China.48ZHU Qiwu, The Problem of Ownership of the Nansha Islands Discussed from the Viewpoint of International Law (Part One), Tribune of Political Science and Law, No. 6, 1990, p.12. (in Chinese)

The Philippines and some other States although failed to directly recognize China’s sovereignty over the Nansha Islands, some documents suggest they indirectly admitted the same. For example, the Philippines and other Pacific rim countries or regions attended the First Pacific Regional Air Navigation Meeting held in Manila, capital of the Philippines, in October, 1955. Resolution No. 24 adopted at the meeting requires that Taiwan authorities should enhance meteorological observation over the Nansha Islands, and no opposition or reservation from the attendees was registered.49YANG Cuibai, “Acknowledge” and China’ s Unarguable Sovereignty over Nansha Islands,China’s Borderland History and Geography Studies, No. 3, 2005, p. 123. (in Chinese)

China’s longstanding exercise of sovereignty over the Nansha Islands has not evoked protest or opposition from other States. As such, China’s effective occupation of the Nansha Islands is conducted in a peaceful manner. The principle of estoppel stops a State from making a claim that is contrary to a previous one. In line with this principle, if a State recognizes the effectiveness of another State’s territorial sovereignty, that State should be prevented from denying such sovereignty. In this connection, Vietnam, the Philippines and other States have seriously violated the principle of estoppel, since they invaded the Nansha Islands,denying China’s sovereignty that they previously admitted.

Other States and international organizations also acknowledge China’s sovereignty over the Nansha Islands. For example, at the San Francisco conference in 1951, Andrei Gromyko, Soviet Minister of Foreign Affairs, pointed out that the Nansha Islands formed an indispensible part of China;50HUANG Delin, A Comment on the Philippines’ Claims of Sovereignty over Some Features of the Nansha Islands, Law Review, No. 6, 2002, p. 48. (in Chinese)Asahi Shimbun, a national newspaper of Japan, commented in 1974 that the Nansha Islands was Chinese territory. The Nansha Islands was marked as Chinese territory on maps published by many States across the world, such as China Sea Directory published by the UK in 1868, Worldmark Encyclopedia of the Nations by the United States in 1963 and World Atlas by Japan in 1952.51HUANG Delin, A Comment on the Philippines’ Claims of Sovereignty over Some Features of the Nansha Islands, Law Review, No. 6, 2002, p. 48. (in Chinese)In the summer of 1987, UNESCO commissioned China to build an oceanographic observation post at the Nansha Islands, which indicates that UNESCO acknowledges China’s ownership of the Nansha Islands. The recognition of a third party which has no potential right to a territory, although without prejudice to a State’s sovereignty over the territory,would have an accumulative effect, if such recognition reached a certain extent,contributing to that State’s consolidation of sovereignty over the territory.52R.Y. Jennings, The Acquisition of Territory in International Law, New York: Oceana Publications Inc., 1963, pp. 43～44.In that case, the recognition of many other States and international organizations confirms,indirectly, that the Nansha Islands has been a part of Chinese territory since ancient times.

Secondly, the exercise or display of sovereignty should be actual, sufficient and continuous. These three requirements may not be absolute for effective occupation. In case of a livable and densely populated territory, the occupying State should exercise intensive administration, establish a complete administrative system, and exercise or display its sovereignty without break; in case of a remote,desolate, unlivable and sparsely inhabited territory, a few administrative activities,a rudimentary organization and an exercise or display of sovereignty at intervals may be held sufficient for effective occupation; and when an uninhabited or sparsely inhabited territory with extremely terrible natural conditions is taken into sovereignty, it is enough as long as the occupying State shows its intention of occupation, even if without actual local administration. That is to say, the criteria of effective occupation vary according to the circumstances of each territory. In case of an unlivable, sparsely inhabited or uninhabited territory, the three requirements for effective occupation mentioned here should be lowered appropriately. It is enough if a State has exercised acts of sovereignty appropriate to the circumstances of the territory concerned.

The voyages from Chinese mainland to the Nansha Islands are long and precarious. The sea conditions in this region are complicated. Among this group of islands, only a few are relatively large in land area and possess fresh water; most of them are small in area and short of the basic living conditions for human. Generally,a feature of the Nansha Islands is over 1,000 km away from Hainan Island, and Zengmu Shoal is more than 2,000 km away from South China Continent.53The Reasons Why It Is Easier for Chinese Three Oil Giants to Do Business in South Africa than in the Nansha Islands: An Expert Explanation, at http://money.163.com/12/0704/13/85IQOH5400253B0H.html, 13 May 2015. (in Chinese)The natural conditions of this group of islands are harsh, since it is frequently visited by typhoons and the waves are torrential in the nearby sea area. Before Ming and Qing Dynasties, apart from some Chinese fishermen who resided on certain features of the Nansha Islands for fishing purpose, no people had settled permanently on this group of islands. In this sense, the Nansha Islands belongs to the category of unlivable, sparsely inhabited or uninhabited territory.

Ever since Chinese discovery of the Nansha Islands in Qin and Han Dynasties,Chinese fishermen, generation after generation, have sailed to the marine areas surrounding the Nansha Islands for fishing. In Tang and Song Dynasties, some fishermen temporarily stayed on the islands during the fishing season. In Ming and Qing Dynasties, some even settled down on the islands; they exploited the fishery resources in the adjacent sea areas, and administrated the Nansha Islands. Additionally, Chinese government paid, in each era, great attention to the development of the fishery industry of the Nansha Islands. It not only improved local fishery management, but also took a range of measures to support local fishery, such as offering supplies, carrying out fishery law enforcement activities, and surveying resources. Furthermore, it also adopted measures, such as establishing administration, garrisoning troops and making diplomatic protests, to declare and protect its sovereignty over the Nansha Islands. For example, Chinese Qing government required that all fishing vessels should be numbered or marked. The fishing vessels berthed in the Qinglan port of Wenchang County should be painted in red at the bow, so as to facilitate the inspection of government officials. The fishermen, before sailing to the Nansha Islands for fishing, must go through some procedures with the administrative authority, and pay tax after returning to Chinese mainland.54XIA Daiyun, The Historic Title Enjoyed by the Fishermen of Chinese Hainan Island to the South China Sea Islands and the Adjacent Sea Areas, Humanities & Social Sciences Journal of Hainan University, No. 4, 2016, p. 16. (in Chinese)The ROC government also put great efforts to boost the development of the fishery industry of the Nansha Islands. In June 1947, the ROC government held a expo of products from the Xisha and Nansha Islands in Guangzhou. The items exhibited were collected and taken back to Chinese mainland by the personnel in charge of the takeover of the islands at that time and the experts sent to do research there.55ZHENG Zemin and WANG Guohong, Role of Fishermen in the Protection of China’s Rights and Interests in the South China Sea, Ocean Development and Management, No. 10,2014, p. 40. (in Chinese)After the founding of the PRC, Chinese fishermen, under the leadership of local government, were collectivized. The SCS fishery boomed at that time, when fishing boats and nets increased in number and most vessels sailed to the sea for fishing. In the period between 1950 and 1956, a large number of fishermen from Qionghai County, Guangdong Province, successively, went to the Nansha Islands for fishing; the competent authorities of Hainan Administrative District, Guangdong Province continuously dispatched personnel to the Xisha Islands to do research and survey, exploit phosphatic fertilizers, build meteorological observatory, and manage the islands and fishermen residing there. When fishery of the Nansha Islands recovered in 1985 after experiencing a temporary standstill during the Cultural Revolution, it entered a stage of fast development. At the moment, fishery production of Chinese fishermen on the Nansha Islands has become routine. These fishermen greatly contributed to the safeguarding of China’s sovereign rights over the fishery resources in the SCS.56ZHENG Zemin and WANG Guohong, Role of Fishermen in the Protection of China’s Rights and Interests in the South China Sea, Ocean Development and Management, No. 10,2014, p. 40. (in Chinese)

To sum up, China’s continuous exploration and management of the Nansha Islands and the local fishery is held sufficient for its effective occupation of the group of islands, since the miserable natural conditions of the Nansha Islands make it unlivable. China has always exercised or displayed acts of sovereignty over the Nansha Islands appropriate to its natural conditions, even to some extent more than required. Therefore, China effectively occupied the Nansha Islands, which completely satisfied the requirements for effective occupation, namely, the exercise or display of sovereignty should be actual, sufficient and continuous.

V. Conclusions

The history of China’s exploitation and management of the local fishery of the Nansha Islands demonstrates that China was the first to discover this group of islands, and also effectively occupied it. Ever since time immemorial, tough and diligent Chinese people, generation after generation, courageously sailed to the Nansha Islands for fishing. Additionally, Chinese government in successive periods keeps enhancing its administration of the Nansha Islands and the local fishery industry. In a sense, fishing is one of the most important means China employs to develop, control and administrate the Nansha Islands. The history of China’s exploitation and management of the local fishery of the Nansha Islands is also a history of China’s continuous exercise and display of sovereignty over the islands. In the future, Chinese government should take a series of measures, such as adopting stimulus policies, giving financial support and enhancing publicity,to further support Chinese fishermen’s exploitation of the fishery resources surrounding the Nansha Islands; in addition, China should put greater efforts to protect the rights and interests of Chinese fishermen working on or near the Nansha Islands and ensure the sustainable development of the fishery resources in the area by implementing fishery protection activities on a regular basis, doing scientific research, lodging diplomatic protests and other means. Such measures or activities are not only perfect examples of China’s display of sovereignty over the Nansha Islands, but also provide the factual basis for China’s future protection of its sovereignty over the islands.

Translator: XIE Hongyue