The Battle of the South China Sea Editorials

by Julian Ku

The conflict between China and Vietnam over a Chinese oil rig has (thankfully) calmed down a little bit, with fewer reports of rammings and water cannon fights in the South China Sea.  But the war of press release and government-sponsored editorials has heated up and all of them are wielding international law as a weapon of authority and legitimacy.

Vietnam’s government has been flooding the Internet with various articles, interviews, and statements accusing China of violating international law by moving an oil rig into waters Vietnam claims as its own.  See here, here, and here.  In general, these are pretty effective, although I do think Vietnamese scholars lose a bit of credibility when they insist that China has “no legal grounds” for its actions. Meanwhile, the Philippines has continued its steady drumbeat of legal articles, including this fascinating essay by Philippines Supreme Court Judge Antonio Carpio.

China has struck back with several English-language articles of its own from Xinhua, the official Chinese news agency.  These have been much less effective or credible, and not just because China has a weaker (although not indefensible) legal position.  Here’s a doozy from the opening paragraph of a recent Xinhua offering:

China’s repeated rejection of Manila’ s plea for arbitration in the dispute in the South China Sea is by no means defiance of the tribunal in The Hague. On the contrary, it shows China’s respect for international law.

I understand what they are trying to say, but this argument just sounds bad.  China has no legal obligation to participate in the UNCLOS arbitration, but its non-participation is hardly a sign of respect for international law when that arbitral tribunal has the power to determine its own jurisdiction.

This Xinhua essay on the Vietnam dispute is much better.  Most importantly, it relies on China’s territorial claim to the Xisha (Paracel) Islands as the basis for China’s right to place the oil rig.  It does not claim any rights here flow from the so-called “Nine Dash Line” that often gets all the press and is undoubtedly the weakest part of their legal argument.  It focuses on the threats to the safety of Chinese sailors and workers, and Vietnam’s legal obligations under the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation.  

Of course, international law is not China’s strongest suit here. But it is interesting to see how China is using international law to support its actions.  Moreover, all China has to do is muddy the waters by establishing that international law does not plainly compel any particular outcome (as Vietnam and the Philippines seem to argue).  If the international legal arguments are fought to a draw, China is in a good position to win the overall game.

http://opiniojuris.org/2014/06/09/battle-south-china-sea-editorials/

4 Responses

  1. Then, why China refuses to submit a counter-argument to Philippines at the international court?

    It’ s a legal joke to see a Western-educated Chinese law writer is at the same time a China’s spin doctor props up propaganda frequently seen in Xinhua or uttered by China’s official during international dialogues.

  2. I understand what they are trying to say, but this argument just sounds bad. China has no legal obligation to participate in the UNCLOS arbitration, but its non-participation is hardly a sign of respect for international law when that arbitral tribunal has the power to determine its own jurisdiction.

    This is just semantics in my view. What if China phrases it as something like:

    Arbitration is an option when mutually agreed to. Absent mutual agreement, the primary means for resolving disputes under UNCLOS is through negotiations (Article 279), exchange of views (Article 283), and conciliation procedures (Article 284).
    The right to opt-out of UNCLOS provided maritime boundary arbitration at any time is guaranteed by Article 298. Many nations have explicitly exercised that right include Australia, Canada, Chile, Denmark, France, Portugal, Italy, Spain, S. Korea, and Russia. The truth is, absent shared political understanding, there is something very illegitimate about having a few individuals impose solutions on disputes that affect the interests of millions of people (or 1.4+ billion as the case may be with China). It’s a grave mistake if the Hage Tribunal tries to submit China to its jurisdiction.

  3. Allen @ 5:53 pm EST 6.17.2014

    Do you mean Xi & the CCP represent 1.4+ billions Chinese? Have the Chinese people in the mainland been blindfolded by the propaganda machines of Xi & Co. ? Please be reminded that Mao Ze-Dong killed 45,000,000 of Chinese people by letting them starved and beaten to death to help make the Great-Leap-Forward, which ranks world’s number 1 genocide of all times.

    Has anyone here – writers, commentators, and the likes – toasted the recent 25th anniversary of the bloody Tiananmen Square Massacre executed Beijing that killed thousands of Chinese people in just 1 day? Please be further reminded that nearly 600,000 votes have been cast in the last three days of an unofficial referendum on democratic reforms in Hong Kong, part of a civil campaign that has been branded illegal by Xi & Co. in Beijing!

  4. Fallacious arguments is a habit of this writer:

    (1) “I do think Vietnamese scholars lose a bit of credibility when they insist that China has “no legal grounds” for its actions”.

    It’s not only the Vietnamese scholars. The internet are filled with a lot non-Vietnamese legal scholars saying China’s “historical-based” nine-dash line map has no legal nor factual grounds. Furthermore, China’s oil rigs “mobile national territories and strategic weapons” are tools for the new-Han expansionist Xi & Co. to progressively control almost the whole SCS.

    And the writer chooses to be as silent as the grave about it.

    (2) Xinhu – a propaganda apparatus of the CCP – published China’s territorial claim to the Paracel Islands as the basis for China’s right to place the oil rig, which is based on a number of trivial things, one of which is the then Vietnamese PM Pham Van Dong’s exchange of a diplomatic note with with his Chinese counterpart Zhou Enlai in 1958. As a legal scholar, the writer should know better than anyone else that this note is a document of non-legally binding character.

    Yet he pretends that he’s lack of knowledge about the legality of such a diplomatic note.

    Unless the writer is not a China’s spin Dr. making a career out of lies and cheats, he should feel honour bound to tell the international legal circle and the world civilised citizens about the truth of today China’s aggressiveness.

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