Right and Wrong on the South China Sea

“Right and wrong” is not as important as the obligation of states to the peaceful settlement of disputes.

Right and Wrong on the South China Sea
Credit: US Navy

The Diplomat has published many pieces on the South China Sea in recent weeks in response to reports that China had built a military airfield on Fiery Cross Reef. This was indeed an unwelcome development and worthy of close scrutiny. It fostered many questions about China’s long term military intentions. These concerns were exacerbated by the public presentations of several regional defense ministers at the ShangriLa Dialogue in Singapore in late May.

The speakers in Singapore who called for peaceful resolution of disputes and an end to creeping occupations or land reclamations were right to do so. This is the only correct position that counts. It was one outlined in my 1998 book, China’s Ocean Frontier, which documented the sequence of the various occupations in the Spratly Islands beginning in 1877 with Britain, and continuing through a French claim in 1930; a Japanese presence in the Second World War; Chinese occupation of one island in 1946 followed by its u-shaped or 9-dashed line; the Vietnamese occupations, first by the government of South Vietnam and then later by the government of unified Vietnam in the 1970s and 1980s; the formal Philippines claim in 1971; and Malaysian occupations beginning in 1978.

As the book points out, the most important issue in international law, as it concerns sovereignty of territory, including islands, is that of the critical date (the year the dispute was first evidenced). Physical occupations after the critical date are far less important and even irrelevant in many circumstances.

The 1998 book concluded that “the disputes over maritime boundaries and territory will be settled by politics broadly defined and not by international law narrowly defined.”  At the same time, it noted that “an analysis too heavily weighted toward contemporary political exigencies and ignoring a comprehensive accounting on rele­vant rules of international law [for acquisition of territory] will skew policy analysis.” It lamented that, in the years leading up to 1998, too many actors had been prepared to sacrifice the “funda­mental principle, that observance of all of the rules serves to cement order,” to contemporary political expediency.”

This is still the situation in which we find ourselves, only it has become seriously aggravated for a number of reasons. The dispute badly needs a circuit breaker, rather than inflamed mis-representations of any single party by its political opponents or competitors.  The opinions of scholars about “right and wrong” is not as important at this stage as the obligation of states to the peaceful settlement of disputes.

We could say this criterion (peaceful settlement of disputes) should be the litmus test of how we judge state actions, but that would be a fatal error. There has been too much judging (and mis-judging). All states, including the claimants, have an obligation to promote and search for peaceful resolution. We should not rule out or be too alarmed by low level and highly emotional efforts to match physical positioning by other claimants. These disputes are “small in scale and local in nature.”

Beyond the island disputes, the overriding strategic environment, including between Vietnam and China, is very favorable towards a continuation of peace and cooperation. External actors, like Japan and the United States, should act to maintain that, not destabilize it. They have promised to support peace. We should hold them to that commitment.