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South China Sea
Opinion

On South China Sea disputes, politicians should step up where legal scholars have failed

Daniel Fung says maritime territorial disputes that are full of historical baggage cry out for a diplomatic solution, as any attempt at a resolution through arbitration – as The Hague tribunal tried – will necessarily fall short

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Daniel Fung says maritime territorial disputes that are full of historical baggage cry out for a diplomatic solution, as any attempt at a resolution through arbitration – as The Hague tribunal tried – will necessarily fall short
Daniel Fung
Is international law sufficiently developed as a system to resolve fundamental disagreements over complex questions of contested sovereignty? Illustration: David Humphries
Is international law sufficiently developed as a system to resolve fundamental disagreements over complex questions of contested sovereignty? Illustration: David Humphries
The UN Convention on the Law of the Sea ad hoc tribunal’s recent decision on the South China Sea unleashed a predictable tsunami of Western commentary not merely criticising China’s refusal to recognise the legitimacy of the tribunal or abide by the decision, but also presuming a bankruptcy of valid Chinese argument to counter the Philippines’ complaints. With little attempt to mask a rising tide of schadenfreude, the weight of Western punditry pronounced a strategic Chinese failure to engage with the international community or abide by the rules of the game known as international law, which has evolved under Western ascendancy over the past four centuries.

Attempts to establish an international legal regime to govern the seas and oceans reached an apogee with the advent of the Law of the Sea treaty in 1982, to which China acceded in 1996 but which the US singularly refused to ratify. Not that such minor detail in any way inhibits American criticism of China’s stance while simultaneously ignoring the inconvenient truth of the US’ own failed challenge in 1986 to the jurisdiction of the International Court of Justice to determine the legality of American military support for the Contras to topple the Sandinista regime in Nicaragua. America would neither participate in the litigation initiated by Nicaragua, nor abide by the court’s ultimate decision in favour of that nation.

Is Western punditry correct? Is China at the end of an agonising two centuries of partially failed modernisation, condemned to be a rising power chafing under constraints imposed by a pre-existing order? Photo: AFP
Is Western punditry correct? Is China at the end of an agonising two centuries of partially failed modernisation, condemned to be a rising power chafing under constraints imposed by a pre-existing order? Photo: AFP

China against the world: A tale of pride and prejudice

No doubt China bears some responsibility for the one-sided nature of the Western narrative since it chose ill-advisedly to cede public forensic space to those of an opposing point of view, and is therefore the author of its own misfortune.

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