Lawfare or Warfare?: History, International Law and Geo-Strategy

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Lawfare or Warfare?: History, International Law and Geo-Strategy

The Diplomat‘s Carl Thayer reports on Vietnam’s Da Nang conference on the status of the Paracel Islands.

Lawfare or Warfare?: History, International Law and Geo-Strategy
Credit: Wikimedia Commons

In March this year, Pham Van Dong University and the University of Da Nang teamed up to invite foreign scholars and legal experts to attend an international workshop on “Sovereignty Over the Paracel and Spratly Archipelagos: Historical and Legal Aspects” (later renamed Historical Truths) from June 19-21. The workshop was held in the central coastal city of Da Nang opposite the Paracel Islands.

The workshop organizers could not have foreseen that the conference would be held under the shadow of a crisis in China-Vietnam relations caused by Beijing’s placement in early May of a mega oil drilling platform in disputed waters near the Paracels but lying within Vietnam’s Exclusive Economic Zone.

The workshop was attended by over 120 delegates, including specialists invited from Australia, Belgium, Canada, France, Germany, India, Italy, Japan, the Philippines, Russia, South Korea, Singapore, and the United States. There were no representatives from mainland China or Taiwan.

The first day of the workshop included the presentation of 20 academic papers to two panels each divided into two sessions. The first panel focused on the Paracel and Spratly archipelagos dispute and the impact on regional peace and security. The first session focused on political and military aspects, while the second session considered the role of international law in developing a region of peace and security.

The second panel focused on the prospects for resolving the disputes involving the Paracel and Spratly archipelagos under international law. The first session looked at the historical and legal evidence of the claimant states.  The second session considered how sovereignty and territorial disputes might be settled under international law.

The second day of the workshop included two roundtables focused on the legal and geo-strategic implications of China’s placement of the Haiyang Shiyou 981 drilling platform in disputed waters.

After the close of the workshop delegates were taken to the opening of an exhibit of historical maps of the South China Sea at the Da Nang Museum. This was followed by a visit to the marine repair yard to meet the owner of Vietnamese fishing boat DNA 90152, which was rammed and capsized by a Chinese Coast Guard vessel on May 26.

Three important sets of issues were raised at the workshop – historical evidence, the role of international law and the geo-strategic implications of maritime disputes.

Historical Evidence

Vietnamese and foreign historians strongly challenged the factual basis of Chinese claims that the Northern Song Dynasty (960-1126 AD) established effective jurisdiction over the Paracels. International legal specialists pointed out that historic rights were no longer a basis in international law for claiming sovereignty over territory. They argued that evidence relating to continuous occupation and effective administration would weigh heavily in any arbitral consideration of sovereignty disputes.

In this respect, Vietnamese historians presented persuasive evidence that Vietnam established sovereignty and effective jurisdiction over the Paracel Islands in the 17th century when the Nguyen Lords dispatched the Hoang Sa flotilla to the Paracel Islands for up to five months each year. This tradition was continued in the 19th century under the Nguyen Dynasty. The Hoang Sa flotilla conducted surveys, mapped the waters and features, fished, erected a temple, and planted official stele marking Vietnam’s sovereignty.

Vietnamese and foreign historians also presented evidence that both the Kingdom of An Nam, which became a protectorate under France, and French colonial authorities continued to maintain a permanent presence in the Crescent Group of islands in the Paracels from the 1920s until 1974, only interrupted by Japan’s occupation during the Second World War. In 1974, in an act of aggression, mainland China invaded islands in the Crescent Group and expelled a garrison of soldiers maintained by the Republic of Vietnam.

Vietnamese historians and foreign scholars strongly criticized what they claimed was a deliberate Chinese distortion that Vietnam recognized Chinese sovereignty over the Paracels in an official letter signed by Premier Pham Van Dong in September 1958. The historians pointed out the text of Premier Dong’s letter made no reference to the Paracel and Spratly archipelagos. It merely took note of a recent Chinese declaration of its territorial waters.

Vietnamese historians critically reviewed a series of Chinese historical maps that indicated that Hainan Island marked the farthest southern extension of Chinese territory up until the 19th century.

International lawyers pointed out maps had no legal value unless they were appended to a treaty. Maps could be used as points of information but on their own could not be taken as proof of sovereignty.

International Law

The Da Nang international workshop was graced by the presence of Professor Jerome Cohen from the New York University School of Law. Professor Cohen is widely recognized as the doyen of international lawyers, especially on legal matters related to China.

Professor Cohen presented a powerful argument for the use of international law to settle territorial disputes in the South China Sea in a paper entitled, “Lawfare or Warfare? Let Impartial Tribunals Cool Asia’s Maritime Disputes.”

Cohen argued that the South China Sea disputes were so complex that several methods of dispute resolution would be required to unpack them. Although bilateral (and multilateral) negotiation between the disputants remained preeminent, Cohen noted that negotiations had their limits and often needed to be supplemented by other approaches. Cohen argued that international adjudication and arbitration should be given a higher priority in the dispute settlement process.

Cohen took note of China’s refusal to enter into third party arbitration. He observed, “political leaders fear an impartial tribunal might reject their blustery boasts that international law totally supports their nation’s position.” Cohen argued that “a third-party decision need not result in an ‘all or nothing’ conclusion.” The International Court of Justice (ICJ) and awards by international arbitration tribunals, he observed, were capable of delivering “nuanced decisions that are in effect carefully-balanced compromises that reflect the complexity of the claims considered.”

Professor Cohen advised Vietnam to take its case to the ICJ even though China would refuse to participate. This would demonstrate Vietnam’s commitment to the rule of international law to settle territorial disputes.

Cohen expressed the hope that the Arbitral Tribunal, if it assumed jurisdiction, would clarify some important provisions of the United Nations Convention on the Law of the Sea (UNCLOS). For example, the Arbitral Tribunal could determine to what degree China’s historic claims survive UNCLOS and what was the proper legal test to distinguish between an island (entitled to an exclusive Economic Zone and continental shelf) and a rock (entitled to a territorial sea).

Cohen canvassed the options open to Vietnam, including joining the Philippines or initiating its own UNCLOS arbitration. If Vietnam joined the Philippines, it would be adding its own legal support to Manila. If Vietnam mounted its own challenge to the nine-dash line “Vietnam may,” Cohen argued, “as a practical matter, enhance the prospects that China’s expansive claims will be invalidated by the Philippine arbitration tribunal as well as any tribunal established in its own case.”

If Vietnam wanted to challenge China’s sovereignty over the Paracels, it would need to take its case to the ICJ. Although China would refuse to participate, Vietnam would gain by demonstrating “to the world its sincere desire for a peaceful, impartial settlement.” By undertaking such legal action the Vietnamese government also might placate domestic opinion.

Cohen further argued, “Vietnam’s sincerity would become even more evident if it should make plain its willingness, in related litigation, to also submit to the ICJ its territorial claims over the Spratlys.”

Professor Cohen suggested Japan should consider initiating an UNCLOS arbitration challenging China’s nine-dash line. Cohen suggested that the United States, which is not a party to UNCLOS, could initiate a suit against China’s nine-dash line before the ICJ even though China would refuse to participate.

Professor Erik Franckx, an internationally respected law professor and arbitrator based in Belgium, suggested that Vietnam make a formal submission to the Arbitral Tribunal considering the Philippines claim stating that Vietnam had an interest in the matter. According to Franckx, the arbitrators would take special note of this expression.

Professor Cohen offered several imaginative proposals to further the role of international law. He suggested the creation of working groups composed of scholars from among the claimant states to unpack the complex legal issues and to work out suggested solutions to territorial disputes.

Cohen suggested the creation of neutral unofficial moot courts to convene at a neutral venue to hear the arguments that claimant states were likely to make if they resorted to international litigation.

Geo-strategic Implications

The workshop and roundtable discussions on geo-strategic issues provided a stark contrast between international law and realpolitik.

Dr. Patrick Cronin, from the Center for New American Security, argued that “the rule of law is predicated on three things: predictability or reliability, transparency, and a sense of fair play or fairness. But predictability, transparency and fairness are not necessarily Chinese objectives.”

Cronin argued that China was pursuing a policy of tailored coercion in the South China Sea. China’s tailored coercion embraces the full spectrum of policy instruments ranging from “maritime and air forces, coast guard and law enforcement agencies, domestic and international law, diplomacy, as well as trade, tourism and energy and resources,” he said. China can dial up or dial down the intensity of its coercive diplomacy at its own choosing.

In order to confront China’s use of coercion Cronin proposed five policy priorities.

First, the United States and Vietnam should develop specific cost-imposition strategies to dissuade China.

Second, the U.S. and Vietnam should undertake more frequent and larger bilateral exercises.

Third, the U.S. should support a triangular security dialogue between Vietnam, Malaysia and the Philippines.

Fourth, the U.S. should end its ban on arms sales to Vietnam.

Fifth, the U.S. should press all members of the Association of Southeast Asian Nations (ASEAN) “to support specific rules for maintaining good order at sea and preserve the freedom of the global commons in the South China Sea.”

Subhash Kapila, a former general in the Indian Army with extensive experience in national security affairs, put his case starkly – China is seeking full-spectrum dominance of the South China Sea. According to Kapila:

Conflict-resolution and risk-reduction processes at the regional and international levels pertaining to the South China Sea conflict-escalation need to face the daunting strategic reality that China would never ever be part of any resolution of the South China Sea disputes. China is not the solution but the most significant problem because China’s strategic calculus has determined that control of the Paracel and Spratly Islands are military imperatives for effective maritime domination of the South China Sea.

According to Kapila, China is pursuing a Grand Strategy aimed at securing three major objectives: to emerge as the paramount power in the Western Pacific and later the Asia-Pacific; to become the co-equal of the United States; and to prompt the exit of the U.S. forward presence in the Pacific.

The international workshop on the Paracel and Spratly archipelagos ended without reaching any formal set of conclusions or policy recommendations.

The workshop served two purposes. First, up until last year all international workshops on the South China Sea in Vietnam were held under the sponsorship of the Diplomatic Academy of Vietnam and the Vietnam Lawyer’s Association in either Hanoi or Ho Chi Minh City. The convening of the first international workshop on the South China Sea in Quang Ngai City in 2013 and the second international workshop in Da Nang City is an indication that central authorities are responding to pressure from below for a full airing of views on the South China Sea.

Second, this year’s international workshop exposed Vietnamese scholars, policy-makers and their foreign guests to a remarkably free-wheeling, in-depth discussion of key historical, legal and geo-strategic issues. Clearly, Vietnam is reaching out to the international community for support and for policy recommendations as it works out an effective strategy to counter China’s latest challenge to Vietnam’s sovereignty.