Vietnam v. China: Not a Fair Fight. But INDIA v. China….

by Julian Ku

Something I learned about while I was in China is that China claims, as a matter of international law, that it has “indisputable sovereignty” over most of the (oil-rich) South China Sea. This graphic illustrates the scope of China’s sovereignty claims. China hasn’t had a navy that could enforce this claim, until now.  So Vietnam and the Philippines have been feeling Chinese pressure on this, with the Philippines seeking to take the case to the International Tribunal for the Law of the Sea.  But China can throw its weight around these days, and smaller countries like Vietnam and the Philippines don’t have much leverage.

But as this article notes, Indian companies have signed agreements with Vietnam to explore for hydrocarbons in Vietnam’s exclusive economic zone (which is within China’s claimed sovereign territory). Indian navy ships have also been wandering around the South China Sea, and into confrontations with the Chinese navy.    This has all the makings of a great power struggle. China’s claim here is, to put it bluntly, very weak under international law.  But China has carefully avoided the jurisdiction of all international courts. Moreover, China being China, only nations like India (and the U.S.) have the ability to seriously contest its claims.   But will they?

5 Responses

  1. Under the 1951 Mutual Defense Treaty between the US and the Philippines the US would probably come to their aid if the Chinese were to try to use military force in an obvious violation of the Law of the Sea. We would have been bound to defend them had the Philippines not failed to ratify the new defense treaty in 1991. Maybe they will rethink this decision.

  2. Some states are sovereign and others are the sovereign. And then they claim that individuals should not commit terrorist attacks. Why not actually, since those states refuse to allow others to bind them to decisions of international courts?

  3. How about Taiwan? Taiwan claims exactly the same areas of South China Sea as China, and Taiwan’a navy has had conflictions with Vietnam navy over the dispute of territory claims?

    Wonder why Taiwan’s claim ENTIRELY overlaps China’s claim?

  4. There’s a reason China refuses to take this issue to international court, since they themselves know that their own claims are pure rubbish.  China has been carrying out policies of bullying and expansionism for decades, knowing full well that the claims they make have no legal or historical truth.  They just want to take and take and take, and this is something we as Americans cannot condone.

  5. I’m surprised that you just learned about this. It’s been one of the most important international questions for us Real Lawyers (that is, those with paying clients) for as long as I’ve been practicing law (30+ years).

    Pragmatic accommodation has permitted exploitation of natural resources in other disputed offshore areas (eg, the Timor Gap). The claimants to those areas have agreed (in what are known in the trade as JDAs — Joint Development Agreements) to allow exploitation (and sharing of royalties) in the areas (known in the trade as JDZs — Joint Development Zones) without surrendering their claims. Billions in revenues, without sacrificing the National Honor, have a wonderful effect on politicians.

    That’s not going to happen here, and Ian Pham is correct that it won’t be settled in court or by arbitration, either.

    China has been using force to back up its claims for a long time. In 1974, it ran the Vietnamese off the Paracels. It sends a gunboat whenever it hears about somebody building something on the Spratleys.

    As a practical matter, China’s willingness to back up its claims with force trumps any “law”. No one would spend any money to try to exploit the South China Sea without China’s approval.

    The US will continue to assert (with force if necessary) freedom of passage and overflight. But it won’t use force to back up anyone’s claim to land, fish or natural resources.

    As every lawyer learns in the first week of Property class, the essence of property is the ability to exclude. And, to quote the philosopher Burr, “The law is whatever is boldly asserted and plausibly maintained.”

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