A legal imbroglio in the South China Sea

The rhetorical war between the China and the United States over the South China Sea dispute is increasing in tempo and magnitude by the week. The US is wasting no time, resource and effort in sponsoring seminars, talks and think tank confabs to drive a wedge between China and other claimant nations in the region. Ambitious young ASEAN scholars and diplomats, anxious to boost their resumes and post-retirement corporate prospects, are actively being lured towards this end via the offer of generous stints at prestigious American universities and think tanks.

Vietnam is the suitor du jour in America’s new carousel game called the “Asian Pivot.” While China is financing and building essential infrastructure in Vietnam, the US is ironically offering weapons to a nation it pummelled during a genocidal two-decade war that left two million Vietnamese citizens dead, as well as an untold number injured and maimed. This tally does not include the yet incalculable effects of Agent Orange on future generations of Vietnamese.

A New York Times report on May 11, 2014, noted that “the war has not ended for many of the 2.8 million” individuals who “are convinced that their cancers and nervous disorders and skin diseases—not to mention congenital maladies afflicting some of their children—are a result of their contact with Agent Orange.”

The NYT was referring to US Army personnel and support staff here; not the Vietnamese victims!

While Chinese businesses have poured in investments worth $7.9 billion into Vietnam in 2014 alone, the US has only offered to clean up chemically contaminated parts of the country some 40 years after the Vietnam War ended. Presumably, both the offer of weapons and nationwide decontamination is subject to strict Vietnamese compliance over the United States’ glaring anti-China stance in the South China Sea.

Yesterday’s bitter enemies are today’s strategic partners whenever history is reinterpreted with facile sleaze.

But history cannot be easily brushed aside, even if the UN Court of Arbitration in The Hague rules in favour of the Philippines over its claims in the South China Sea. The ruling is expected to be made this summer.

Why extra-regional arbitration may backfire

The Philippines’ resort to The Hague may backfire badly for all claimants in the region. Involving the United Nations and the United States into what was originally a regional issue may irk China, but it ironically opens up a few legal Pandora’s Boxes in Beijing’s favour.

For one, the amnesiac Western media has forgotten that Taiwan’s maritime claims mirror those of China. Can the UN issue a definitive verdict that discounts Taiwanese claims, especially when Taipei is not a member of the United Nations? Will the 22 nations that recognize Taiwan as a separate political entity endorse any such international ruling? This, in turn, opens up another legal conundrum over the status of Taiwan.

A shrewd legal expert on territorial claims, international law and geopolitics can easily punch holes the size of a US aircraft carrier once the UN and the US are brought into the picture, and embarrass both entities to no ends.

To begin with, did the United States and the UN General Assembly or any other permanent member of the United Nations Security Council contest the validity of the 11-dash line unveiled on Dec 1, 1947 by the Republic of China—itself a permanent council member at the time? Without a proper de jure challenge, the “international community”—a term the US glibly invokes all too often—seems to have proffered at least de facto recognition over China’s 1947 claims.

Many of the contested islands in the South China Sea, namely the Paracels, Pratas and Spratly, were actually reclaimed by the Republic of China’s naval forces in the immediate aftermath of Japan’s surrender in WWII. Hardly any disputes rose till Vietnam lodged a counterclaim in 1951 but this was blunted by China’s concession of the Bach Long Vi island to Vietnam in 1957. Beijing’s maritime claims were in fact tempered by Zhou Enlai’s new 9-dash line during this period. Again, there seems to be scarcity of UN debates, protests, documents or motions regarding the 9-dash line till a decade or two back—when the United States began to challenge China’s economic hegemony in the region.

The disputed islands slipped into a state of limbo from the late ‘50s onwards. Hardly any news buff was acquainted with its existence. The United States was too busy fighting Vietnam. Later it was busy courting the People’s Republic of China, culminating in Nixon’s 1971 visit. The geopolitical pendulum, and the implicit maritime claims, now superficially swung in Beijing’s direction. There was no way the US was going to honour the claims of Hanoi. America neither countenances nor honours the claims of any nation that militarily kicks its rump. Being the gracious loser that it was, Washington refused to engage in diplomatic relations with Hanoi from the end of the Vietnam War in 1975 until 1995. Hanoi’s maritime claims were presumably treated with the same level of hostile contempt.

Just how did the US treat Vietnamese claims until 1995? Is the US now making a hypocritical volte-face, dangling the prospects of arms and regional naval support in lieu of war reparations and the blighted lives of future generations of Vietnamese babies over a few islands?

Or will it resort to another round of musical chairs when future regional developments require an opportunistic recalibration yet again? As for China and claimant ASEAN nations, all parties should continue holding regional dialogues towards a final settlement in the South China Sea, no matter how long it takes.

Asia should resolve its own problems without entangling Janus-faced outsiders.

Mathew Maavak is a doctoral researcher in security foresight at Universiti Teknologi Malaysia (UTM).